When applicant should not pay court fees for getting legal heirs certificate?

 In so far as Article 12 of Schedule I of the Bombay

Court Fees Act, which has been referred by the learned Judge in

the order, is concerned, it could be seen that the fees prescribed

for certificate under the said regulation are same as the fees

leviable in case of a probate, on the amount or value of the

property in respect of which the certificate is asked for. Article 12

prescribes the percentage of fees to be payable in the matter of a

probate or a will or a letter of administration with or without seal,

depending upon the value of the property.

5] However, perusal of the present application would

reveal that the applicants are not seeking a heirship certificate

under the said regulation with respect to any property. It would be

seen that the fees would be payable only if a heirship certificate is

sought to be obtained, is in respect of same property.

 I do not understand the propriety of the learned Judge

in making an Enquiry from the sources not disclosed in the order,

regarding the list of persons, who are entitled to get compensation

in village Nandgaon. The only requirement under the regulation

prior to issuing a proclamation is to invite and to consider the

objections, if any, received within 30 days from the date of the

proclamation. Had anyone objected after the proclamation so

issued, in that event only, I find that any enquiry in the matter

would have been necessary. If the application filed by the

petitioners was uncontested and if the petitioners had produced

the documents in support of their claim that they; were heirs of

deceased Digambar, I do not understand the propriety of holding

any other enquiry.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO. 7309 OF 2009

 Shri Ashok  Diga Deng  Vs  The State of Maharashtra.

CORAM : B.R. GAVAI J.

DATE : 21ST NOVEMBER, 2009.

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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 application for legal heir certificate is maintainable if legal heir certificate is already granted to other party?

The facts leading to filing of the present writ petition are that the petitioners had filed an application for grant of legal heirship certificate under Bombay Regulation VIII of 1827 (hereinafter referred to "Regulation"). The said application was granted by the Court of Civil Judge, Junior Division, Nagpur by judgment and order dated 13/06/2017. An application was filed by the respondent on 02/03/2017 under the very same Regulation for grant of legal heirship certificate wherein the petitioners were made parties as non-applicants. 

 A perusal of the above quoted provisions shows that section 387 of the Act of 1925 and clause 7 second of the said Regulation specifically provide for revocation and annulment of a certificate in the nature granted in favour of the petitioners herein. Section 385 of the Act of 1925 specifically provides that a certificate granted in favour of a person shall be invalid if there has been a previous grant of such a certificate and when such a previous grant is in force. Section 387 of the Act of 1925 provides that no decision in Part X of the said Act would prevent the question involved to be raised in a suit or "any other proceedings between the same parties". A proper reading of the aforesaid provision clearly shows that there is a scheme provided for revocation or annulment of certificate, with which any person is aggrieved and that there is also the option of approaching the Civil Court by filing a suit or any other proceedings and that grant of earlier certificate would not act as res judicata between the parties. In the present case, even if the respondent was not aware about grant of heirship certificate in favour of the petitioners, the moment the grant of certificate in favour of the petitioners was brought to her notice, the only course available for her was to have taken appropriate steps either for revocation of the certificate under section 383 of the said Act or for annulment of the said certificate under clause 7 second of the said Regulation or to have filed a suit as contemplated under section 387 of the Act of 1925. To proceed with the present application, filed by the respondent, which is only for grant of legal heirship certificate to her would be an exercise in futility, in view of section 385 of the said Act.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 5447 of 2018

Decided On: 13.02.2019

 Parvatabai  Vs.  Surekha

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(5) MHLJ 214

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Whether court can revoke legal heir certificate granted under Bombay regulation Act?

 A legal heirship certificate was issued in the present
case under the provisions of Bombay Regulation VIII of 1827. The
regulation (Section 2 thereof) inter-alia provides that if any heir is
desirous of having his right formally recognized by the Court, the
judge, on an application of such heir, shall issue a proclamation in
the form contained in Appendix – A to the Regulation, inviting all
persons, who dispute the right of the applicant, to appear in the
Court and submit their objections, and if, no sufficient objection is
offered to the application, the judge shall proceed to receive
proof of the right of the applicant and upon being satisfied, grant
a certificate of heirship to the applicant. It is also to be noted
that by virtue of Section 390 of the Indian Succession Act, 1925,
various provisions contained in Part–X of that Act concerning
succession certificates including Section 383 of that Act are made
applicable, so far as may be, to the heirship certificates granted
under Bombay Regulation VIII of 1827. Section 383 of the
Succession Act provides for revocation of any succession
certificate granted under Part–X , inter-alia in a case where (i) the
proceedings to obtain such certificate were defective in
substance [clause (a)] or (ii) the certificate was obtained
fraudulently by making a false suggestion or by concealment from

the Court of something material to the case [clause (b)].
The argument of learned counsel for the petitioners in the
present case is, firstly, that since issuance of proclamation is an
essential condition for accepting the claim of heirship and issue a
heirship certificate and that condition was not followed in the
present case, the proceedings to obtain the heirship certificate
can be said to be defective in substance. It is secondly submitted
that inasmuch as there is a fraudulent suggestion on the part of
the respondents herein whilst obtaining the heirship certificate
that they were the only legal heirs and next of kin to the
deceased, as also an active concealment of the fact of the second
marriage of the deceased with petitioner no.1 and birth of two
daughters (petitioner nos.2 and 3) from out of that wedlock, the
heirship certificate is liable to be revoked.
8 It is pertinent to note that as far as clause (a) of
Section 383 is concerned, a case must be made out that the
proceedings were defective in substance. The petitioners claim
that since the proclamation was mandatory under the provisions
of Section 2 of Bombay Regulation VIII of 1827, issuance of
heirship certificate in the present case was defective for want of
such proclamation. It is pertinent to note in this behalf that the

proclamation was dispensed with by an express order of the
Court. If the misc. petition for heirship certificate was pressed
before the Court, without issuing the proclamation as per the
dispensation granted by the Court, the proceedings cannot be
said to be defective in substance. It is another matter if without
seeking any dispensation the heirship certificate was applied for
without such proclamation. In such case, the proceedings would
be defective in substance. So long as the order of the Court
providing for dispensation of the proclamation stands and is not
set aside, it is not for any party to claim that proceedings to
obtain heirship certificate without a proclamation suffer from any
defect in substance. There is, accordingly, no merit in the first
objection raised by the petitioner.
9 Clause (b) of Section 383 deals with a case where the
heirship certificate is obtained fraudulently by making of a false
suggestion or by concealment from the Court of something
material to the case. 'Fraud' itself implies suggestion of a fact by
one who does not believe it to be true or an active concealment of
a fact by one having knowledge or belief of the fact. In either
case, therefore, for seeking revocation of a certificate granted
under Part-X of the Indian Succession Act, or a heirship

certificate granted under Section 2 of Bombay Regulation VIII of
1827, the applicant for revocation must make out three
ingredients; firstly, it needs to be shown that there is a false
suggestion or concealment of a material particular in the
application for heirship certificate; secondly, such suggestion or
concealment must be shown to have been made knowingly, that is
to say, by someone who does not believe the suggestion to be true
or who has the knowledge or belief of the fact concealed; thirdly,
there should be no other consideration affecting the
maintainability of the application for revocation, for example, bar
of limitation or equitable considerations affecting the applicant's
right to seek revocation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISC. PETITION NO.32 OF 2017
WITH
NOTICE OF MOTION NO.57 OF 2017
Kusum Chandrakant Shankardas & Ors. 
V/s.
Rajeshri Chandrakant Shankardas & Ors.

CORAM : S.C. GUPTE, J.
DATED : NOVEMBER 1, 2017.

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Whether succession certificate can be used against legal heirs of deceased?

In Part X of the Act there are provisions
regarding issuance of succession certificate. Certificate
can be granted in respect of the property of the deceased
which goes to the heirs of the deceased. In the present
matter the brothers had claimed succession certificate in
respect of provident fund and gratuity amount and such
certificate can be issued in respect of provident fund as it
is treated as security. Provisions of Sections 372 and 373
of the Act show that inquiry involved in this application is
of summary nature and limited investigation is required to
be made. These provisions show that public notice is
required to be issued of this proceeding. Section 372 (3)
of the Act shows that even if intricate questions of law or
fact are involved which cannot be decided in summary
manner, the Court may grant the certificate if the
applicant has prima facie case. Thus in this provision even
when there is summary procedure given and there is

contest, the succession certificate can be issued. Inquiry
after framing of issues etc. is required if there is contest
but that inquiry is also summary in nature. The provisions
show that the purpose of giving such certificate is to give
authority to the holder of certificate to realize the debt or
security of the deceased and to give valid discharge. Thus,
this is only authority given to the holder of the certificate
to collect security or realize the debt and it needs to be
presumed that the amounts so collected need to be
disposed of in accordance with the rights of the persons
who are entitled to this amount. That is the duty imposed
on the person who is holding the certificate. This
certificate is conclusive as against the persons owing such
debt or who are liable to such security as provided in
section 381 of the Act. Thus, the certificate cannot be
used against the legal heirs of the deceased who have
better title.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
AT AURANGABAD
Civil Revision Application No. 45 of 2015

 Beersing Charan Karosiya

V
 Tanhabai Pratap Karosiya

 CORAM: T.V. NALAWADE, J.

 DATE : 26th NOVEMBER 2015
Citation: 2016(6) ALLMR 333

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Whether death certificate of predeceased relative is necessary for getting legal heir certificate under bombay regulation Act?

This clearly establishes that a certificate issued under Bombay Regulation VIII of 1827 confers no right to any property. It only indicates a person who (for the time being ) is in the legal management of it. It can always be annulled on proof that another person has a preferable right.

9. I would imagine that in view of these provisions, it is wholly unnecessary for the Registry to display such extraordinary caution or timidity and to demand ancestral death certificates. A statement made by the Petitioner is that the deceased's mother predeceased the deceased is surely sufficient, for it is made on oath.

10. I am also unable to understand why the department insists on death certificate of only one of the parents of the deceased. If this is a requirement of law, then surely the department must ask for the death certificates of both parents of the deceased; and by logical extension, the death certificates of their parents on each side, and so on to the end of the chapter, going back countless generations.

11. If this is the kind of procedure is to be followed for issuance of mere certificate that confers no right to the property, does not finally determine nor injure the right of any person and the issue of which is only to make it safer for a third party to deal with the Applicant, then no Heirship Certificate will ever be granted by this Court, for every Applicant will probably spent his entire lifetime gathering death certificates going back decades or even centuries.

Bombay High Court

Vinita Ankit Verma vs Ankit Bhagwaticharan Verma ... on 16 March, 2016

Bench: G.S. Patel

Citation: 2016(5) ALLMR 412 Bom

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Whether first wife can legally give consent to her Husband to perform second marriage?

 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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