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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