When the court should allow the co-applicant in the application for legal heirs certificate as an objector?

 A perusal of the relevant provisions of the Regulation

would show that the Preamble itself provides that it is in general

desirable that heirs, executors or legal administrators of persons

deceased should, unless their right is disputed, be allowed to

assume the management of the estate of the deceased. The words

“unless their right is disputed” are crucial, particularly in the

peculiar facts and circumstances of the present case.{Para 16}

17. Clause 4 of the Regulation is also significant because it

mandates that the Court shall summarily investigate the grounds

of objection on the one hand and the right of claimants on the

other hand before issuing legal heirship certificate. The said clause

further specifically mandates that if the Court comes to a

conclusion that the question at issue between the parties is of a

complicated or difficult nature, the Court can suspend the

proceedings until the said question is put at rest by way of a

regular suit instituted by one of the parties.

18. In the present case, the facts and circumstances are such

that the respondents are seeking to deprive the petitioner, who is

admittedly the mother of the deceased Mahesh, to even raise a

dispute in terms of the provisions of the aforesaid Regulation. All

that the petitioner desires by way of being transposed is to have

an opportunity to dispute the claim made by the respondents on

the basis of the said purported Will, in view of the amended

application now pending consideration before the Court below.

There cannot be any dispute about the general propositions

discussed by the Court below in the impugned order that the

proceedings under the said Regulation are necessarily summary in nature and that finality of rights of the disputing parties would be achieved only after appropriate proceedings are instituted and

culminate before the competent Civil Court. But, in the facts and

circumstances of the present case, the question that was required

to be considered by the Court below was, as to whether the

petitioner could be deprived of her right to raise an objection to

the exclusive right sought to be claimed by the respondents on the basis of the amended application. This is particularly because, in the first place, while filing the original application, the respondents did not join the petitioner as a non-applicant and even more significantly they did not even mention existence of the

purported Will dated 15/09/2012, said to have been executed by

deceased Mahesh in their favour. Thus, in the facts and

circumstances of the present case, this Court has come to the

conclusion that from the very beginning the respondents have

been making attempts to deprive the petitioner of her basic right

of even disputing the claims made by them insofar as grant of

legal heirship certificate is concerned. Attempts have been made

to nip in the bud, the right of the petitioner to raise her claim.

Whether the Court below finally accepts the claim of the petitioner or not is a different matter, but she cannot be deprived of her right to raise objection to the manner in which the respondents have sought relief from the Court below under the provisions of the said Regulation.

19. In view of the above, it is found that the impugned order

is wholly unsustainable. Accordingly, the writ petition is allowed.

The impugned order is quashed and set aside. The application

filed by the petitioner at Exhibit-23 is allowed in terms of the

prayer made therein. Consequently, the application pending before the Court below shall stand amended by transposing the petitioner as objector. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 2601 OF 2019

 Vijayabai Yugraj Rupareliya  Vs  Chaya Wd/o Mahesh Rupareliya, 

CORAM : MANISH PITALE, J.

DATE : 05.02.2020

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Questions and answers in law part 12

Q.1 What is limitation for filing suit for eviction against tenant on ground of subletting?

Ans:- After hearing both the learned Counsel, and after perusal of the Trial Court judgment and the lower Appellate Court judgment, it is clear that in the instant case, though the tenancy was created in favour of Respondent No. 1, the Respondent No. 1 never stayed in the suit premises, right from inception, i.e. 1st February, 1969. On the contrary, the Respondent No. 1 had illegally sub-let the same to Respondent Nos. 2 and 3 from 1st February, 1969. If that be so, the breach of tenancy conditions occurred on 1st February, 1969, and the suit ought to have been filed within 12 years, as per Article 66 of the Limitation Act. Ex-facie the suit is barred by law of limitation. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 684 of 1991

Decided On: 05.12.2006

 Shri Taherbhai Taiyebhai Poonawala, Vs.  Shri G. Hamid Hasan Patel 

Hon'ble Judges: 

Dr. S. Radhakrishnan, J.

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Whether legal representative of applicant of heirship certificate can come on record after his death?

 It may be stated that Bombay Regulations of 1827 is a Regulation to provide for formal recognition of heirs, executors and administrators and for appointment of administrators and manager of the properties by the Courts and for these reasons, the rules are framed under these Regulations. Regulation (2) empowers the Judge to receive proof of right of the applicant and it can satisfyingly grant the Certificate of Heirship.

9. In this case, the appellant, Anita had claimed to be the wife of the deceased and therefore it was a personal right on the basis of which the Heirship Certificate was sought under this Regulation. Thus, it being a personal right, on her death, right to sue does not survive and therefore the question of substitution by the legal representatives cannot be granted. Thus, taking into consideration the facts of the case, in my view, the application preferred by the legal representatives of the appellant for their substitution is not maintainable.

IN THE HIGH COURT OF BOMBAY

Civil Application No. 375 of 2018 in Second Appeal No. 303 of 2016 and Civil Application No. 1941 of 2015

Decided On: 08.03.2019

 Anita Anant Patil Vs.  Malini Anant Patil

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(5) MHLJ 407

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Whether court can grant heirship certificate in respect of property which is situated beyond territorial jurisdiction of court?

 In the aforesaid judgment and order dated 30-06-2017, this Court has specifically dealt with the question as to whether the Court at Nagpur has territorial jurisdiction at all to consider and entertain the application for grant of legal heir certificate filed by the applicants under the aforesaid Regulation. In that context, this Court has held as follows:-

"There is also much substance in the finding arrived at by the trial Court that as the properties are situated in territorial jurisdiction of the Court in Buldhana District, the Court at Nagpur, cannot be said to be having territorial jurisdiction to entertain this application. The provisions of Section 16 of the Code of Civil Procedure are very material to that effect, which are reproduced herein under:

16. Suits to be instituted where subject-matter situated. Subject to the pecuniary or other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits.

(b) for the partition of immovable propriety.

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property.

(d) for the determination any other right to or interest in immovable property

(e) for the compensation of wrong to immovable property, (e) for the recovery of movable property actually under distraint or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is situated;

provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carried on business, on personally works for gain.

Thus, as per this section, even for the determinant of any right or interest to immovable property or for compensation for wrong to immovable property also, the suit has to be instituted in the Court within the local limits of whose jurisdiction the property is situate. Herein in the case the applicants are claiming heirship certificate and thereby calling upon the Court to determine his right or interest in the immovable property, which is situate within the local limit of the Court in Buldhana District and not within the local limit of the Court at Nagpur, where the application is filed. Therefore, on this count also, the learned Trial Court has rightly held that it was not having territorial jurisdiction to entertain the application for grant of heirship certificate."

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Misc. Civil Application (Review) No. 1211 of 2017 in Civil Revision Application No. 91 of 2016 (D)

Decided On: 20.03.2018

 Baban Ramchandra Shukla Vs.  Parag Arvind Shukla and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(4) MHLJ 50

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When court should reject application for legal heir certificate as per Bombay Regulation Act?

Though learned counsel for the applicants has tried to rely upon the two pursis filed by non-applicant Nos. 1 and 2 in R.C.S. No. 41/1997, which was renumbered 12/1997, in which they have admitted the execution of the Will, but the fact remains that non-applicants have also filed an application for grant of heirship certificate vide M.J.C. No. 29/1992 in the Court of Civil Judge, Junior Division at Telhara, District Akola and it is pending between the parties. Hence, whether applicants can claim to be the heirs of deceased Nanibai in the strict sense of the terms to inherit her property totally or to manage her property is itself in question. The very fact that such disputes are pending in the Court is sufficient to indicate that the issues involved in the present case are complicated and of difficult nature. They pertain to the interpretation of the provisions of Hindu Succession Act and deciding validity of the Will alleged to be executed by Nanibai. The second clause of Rule 4 specifically provides that if from the evidence adduced, it appears that the question at issue between the parties is of a complicated or difficult nature, then Judge may suspend proceedings in the application for a certificate until the question has been tried by a regular suit instituted by one of the parties. Here the provisions of the Hindu Succession Act, coupled with the legality and validity of the Will alleged to be executed by Nanibai being in question, the proceeding for heirship certificate, as laid down in clause (2) of Rule 4 need not be decided. As these proceeding are to be of summary in nature and in such summary proceeding the Court cannot be expected to deal with these complicated factual and legal issues raised by the parties. The Court can in such situation, leave the parties to agitate their rights before the appropriate forum, especially when in this case the litigation is pending between the parties, the learned Trial Court was also justified in holding that, in order to consider the applicants as legal heirs of the deceased Nanibai, there must be some prima facie evidence like entries in the record of rights, so that for management of the property such heirship certificate can be issued in the name of applicants. However, no document was produced by applicants on record for the Trial Court to prima facie come to the conclusion that applicants are in the management of the property and hence are entitled for management of property.

20. Rule 3 of Bombay Regulations also provide that the Court can issue such heirship certificate upon the proof as may be offered of the right of the person making the claim and only the Court, if satisfied, shall grant certificate declaring him to be the recognized heir. Herein the case from the evidence, which was adduced by the applicants and having regard to the disputes between the parties in the Civil Court, no fault can be found if the Trial Court was not satisfied of the proof offered by the applicants of their right to claim, in the property left behind by Nanibai.

21. The rights of beneficiary under the Will are required to be crystallized in the civil suits, which are pending between the parties. The applicants, merely on the basis of such will-deed cannot exclude the rights of non-applicants who are also the legal heirs of Nanibai and Eknath. Hence, looked at it any angle, it cannot be said that the Trial Court has committed any error, much less any illegality, impropriety or perversity, in refusing the grant of the heirship certificate to the applicants. Whether the applicants are really legal heirs, to the exclusion of non-applicants, cannot be decided in summary proceeding. The mandate of the Bombay Regulations also is to that effect and is found reflected in its rules, especially Rule 4 and Rule 8. Therefore, the impugned order passed by the Trial Court being just, legal and correct does not call for any interference.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 91 of 2016

Decided On: 30.06.2017

 Baban Ramchandra Shukla and Ors.Vs. Parag Arvind Shukla and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(1) MHLJ 411

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Whether second wife can be treated as legally wedded wife if second marriage was performed with consent of first wife?

In so far as submission of the learned counsel appearing for the petitioners that petitioner no.1 solemnized marriage with the said deceased after such writing was received from the first wife giving her no objection in favour of the said deceased in getting married again and petitioner no.1 would be one of the legal heirs of the said deceased is concerned, in my view, this issue is concluded by the judgment of the Supreme Court delivered on 15th March, 2013 in case ofNagendrappaNatikar (supra) when Supreme Court considered similar consent letter addressed by the first wife of the deceased. After considering such writing, Supreme Court held that under section 25 of the Contract Act, any agreement which is opposed to public policy is not enforceable in a court of law and such an agreement is void, since the object is unlawful. In my view, only a competent court can grant decree of divorce and no divorce can be granted to a party governed by Hindu Marriage Act or Special Marriage Act, based on such consent letter. In my view divorce can not be granted by parties by such writing unless decree is passed by competent court annulling such marriage. In my view, marriage of the first petitioner with the said deceased is thus void and petitioner no.1 therefore cannot be considered as a legal heir of the said deceased. Petitioner nos.2 and 3 being daughters born out of such wedlock would be entitled to share in the property of the said deceased. Mother of the said deceased is also one of the legal heir of the said deceased and would be one of the legal heir and would be entitled to share in the property of the said deceased.

BOMBAY HIGH COURT

Vandana Bhimrao Jadhav and Others Vs. Sagar Bhimrao Jadhav

Citation;2014(2) MHLJ 274 Bom

Court : Mumbai

Judge : R.D. DHANUKA

Decided On : Oct-22-2013

Case Number : Misc. Petition No. 110 of 2011 In Misc. Petition No. 91 of 2009

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Whether court can decide legality of marriage between applicant and deceased in petition under bombay regulation Act?

Bombay Regulation Act -heirship certificate-application for grant of-It requires only summary investigation to see if applicant has a perferable right to heirship certificate-Question whether marriage between applicant and deceased could be said to be legal can be settled only by way of suit and not in proceeding which is summary in nature.

Bombay High Court

Ankush vs The State Of Maharashtra on 29 January, 2014

Bench: A.I.S. Cheema
Citation;2015(7) ALLMR 162

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Whether application for legal heirs under bombay Regulation Act becomes barred by limitation?

 I am in respectful agreement with the view expressed in the
decisions cited. Though the decisions relate to petitions for probate,
letters of administration and succession certificate, the proposition of
law expounded therein would be equally, if not more, relevant to an
application for heirship certificate. Such an application is also to “seek
the Courts imprimatur for recognition as an heir”. Therefore, the right to
apply for heirship certificate is also a continuous right which is capable of
being exercised as long as object of the right as an heir exists. The right
to apply for heirship can, therefore, be exercised at any time after the
death of the deceased as long as the right to do so exists. In the

circumstances, the trial Court was not correct in its finding that the
application filed by the petitioner was barred by limitation.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2177 OF 2014

Shri. Ganpati Vinayak Achwal

(Sole petitioner in original
proceedings)

Coram :- Smt. R.P. SondurBaldota, J.
21st August, 2014
Citation; 2015(2) ALLMR285 Bom

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Whether court can grant legal heir certificate if person is missing for seven years?

It is thus seen that the said Mohammed Ismail has been missing and is not heard of for a period of more

than seven years since before the filing of this petition. Therefore, in view of the provisions of section 108

of the Evidence Act presumption about his death can be drawn. Petitioner has also filed the affidavits of

his mother, Smt. Jamila and sister Mrs. Najabul Nisha in support of the petition. It appears that the

heirship certificate is required for the purpose of obtaining the terminal dues of the said Mohemmed

Ismail. The Mumbai Port Trust authorities have informed this court the total amount payable to the said

Mohammed Ismail is Rs. 97,195/ -. The petitioner and his mother and sister being the only legal heirs of

the said Mohammed Ismail who must be presumed to have died, are entitled to get a legal heirship

certificate in their joint names for collecting of dues which were payable to the said Mohammed Ismail.

HIGH COURT OF BOMBAY

Mohammed Ali Mohamamed Ismail Khan V/S STATE

Date of Decision: 14 June 2001

Citation: 2001 LawSuit(BOM) 983

Hon'ble Judges: J A Patil

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