High Court
Legal Reasoning
7WP 14080-2023An heir, executor or administrator, holding a certificate,shall be accountable for his acts done in that capacity to allpersons having an interest in the property, in the samemanner as if no certificate has been granted. 8. Refusal of a recognition no judgment against claimof applicant:The refusal of a certificate by the Judge shall not finallydetermine the rights of the person whose application isrefused, but it shall still be competent to him to institute asuit for the purpose of establishing his claim." 6. Interpreting the Regulation, in Aloysius Manuel D'souza& ors. Vs. Mary Kamala William Manuel D'souza, 2006(6)Bom.C.R. 56, a Division Bench of this Court has held thatthe grant of heirship certificate does not establish the rightof a party in property of the deceased by itself. The right, ifany, of a person claiming ownership in the property of thedeceased are not taken away by grant of an heirshipcertificate to an heir. On the other hand, clause 7 makes itclear that heirship certificate holder is accountable to allpersons having an interest in the property for the acts doneby him. Based on the heirship certificate simplicitor theheirship certificate holder cannot be said to have acquiredany right, title or interest in the estate of the deceased.
Arguments
IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.14080 OF 20231.Smt. Tarabai wd/o Satyanarayan Jaiswal,Age 80 years, Occupation Household,R/o Plot No.254/A, Jaiswal Palace,Samarth Nagar, Aurangabad.2.Shailendra s/o Satyanarayan Jaiswal,Age 54 years, Occupation Business,R/o as above...PetitionersVERSUS1.Sushil s/o Satyanarayan Jaiswal,Age 58 years, Occupation Business,R/o Plot No.42, Shrinekatan Colony,Aurangabad.2.Lalita s/o Madhusudan Jaiswal,Age 65 years, Occupation Household,R/o Sarafa Bazar, Nehru Road, Jalna.3.Jaishree w/o Manoj Jaiswal,Age 48 years, Occupation Household,R/o Baijanee Road, Kadrabad, Tq. AndDist. Jalna.4.Sushma w/o Rupesh Jaiswal,Age 44 years, Occupation Household,R/o Ward No.12, Ramnagar, Rajura,At Present Residing At Row HouseholdNo.2, Samarth Heritage, Khadkeshwar,Aurangabad.5.Sarita w/o Rajendra Jaiswal,Dead through L.Rs.A)Dinesh s/o Rajendra Kumar Jaiswal,Age 40 years, Occupation Business,R/o Opp. Chikalthana Police Station,Chikalthana, Aurangabad. 2WP 14080-2023B)Shital w/o Nitin Jaiswal,Age 34 years, Occupation Household,R/o Near Manik Talkies Malipura,Pusad, Tq. And Dist. Yavatmal.C)Shrikant s/o Rajendra Kumar Jaiswal,Age 33 years, Occupation Business,R/o Opp. Chikalthana Police Station,Chikalthana, Aurangabad.6.Rajshree w/o Manish JaiswalDead Through L.Rs.A)Shivani d/o Manish Jaiswal,Age 24 years, Occupation Education,R/o Flat No.11/05, PriyadarshiniNagar, Behind RTO Civil Lines,Nagpur.B)Aryan s/o Manish Jaiswal,Age 19 years, Occupation Education,R/o As above.7.State of Maharashtra,Through District Collector,Aurangabad....Respondents.…..Advocate for Petitioners : Mr. N. S. Muthiyan Advocate for Respondent No.1 : Mr. A. K. Tiwari.…..CORAM : ARUN R. PEDNEKER, J.Date of Reserving The Judgment : 07/03/2024Date of Pronouncing The Judgment : 22/03/2024 3WP 14080-2023JUDGMENT :-1.By the present writ petition, the petitioners are challenging theorder passed by the 10th Joint Civil Judge, Senior Division, Aurangabadin Civil M.A. No.254 of 2022, whereby the respondents No.1 to 6 aregranted legal heirship certificate of deceased Mr. Satyanarayan Jaiswalunder the Bombay Regulation VIII of Act -1827.2.Brief facts of the case are as under : -On expiry of one Mr. Satyanarayan Jaiswal, the respondents No.1to 6 filed an application for legal heirship. In the said application, theTrial court had issued proclamation in the form contained in Appendix Aof the Regulation inviting all persons to dispute the right of thepetitioners to appear in the Court within one month and to enter theirobjection. So also the Court had issued notices to the presentpetitioners as they were made parties by the petitioners in theapplication. The petitioners herein appeared in the proceeding but didnot file any objection, and thus the respondents adduced evidence andhad closed evidence on 14/09/2022 by filing pursis at Exhibit 22.Thereafter, the present petitioners applied for setting aside the order ofproceeding without their reply and it was allowed on 13/02/2023. Thepresent petitioners filed reply at Exhibit 26 on 02/03/2023. Thereafter,application is filed by the petitioners for framing of issues/ points of 4WP 14080-2023determination which will aid and assists the parties in proceeding withthe Trial in a compact manner factually and legally. The applicationfiled by the petitioners was opposed by the respondents contendingthat all the facts are admitted i.e. of father and mother, sons anddaughters, deaths of two daughters and the petitioners with therespondents No.2 and 3 being the legal heirs, as such, no furtheradjudication is required and the heirship certificate would be issued inthe name of all the legal heirs, and the proceeding be heard. TheCourt, on consideration of the application and the response of therespondents held that Section 4 of the Regulation provides forsummary investigation of the grounds of objections on one hand and ofthe right claimed on the other, if before expiration of the time anyobjection is made to right of the person claiming as heir, and held thatno framing of issues are required. Against the said order passed by the10th Joint civil Judge, Senior Division, Aurangabad, the present writpetition is filed. 3.The learned Advocate of the petitioners relied upon the Judgmentin case of Moran Mar Basselios Catholicos and another Versusthe Most Rev. Mar Poulose Athanasius and Others, reported in1955 SCR 520, and submits that issues are required to be framed andrelies upon the following part of the Judgment : - 5WP 14080-2023“…….. To decide against a party on matters which do notcome within the issues on which the parties went to trialclearly amounts to an error apparent on the face of therecord. It is futile to speculate as to the effect thesematters had on the minds – of the Judges in comparisonwith the effect of the other points.”4.The learned Advocate for the petitioner also submits that in termsof Section 141 read with Order XX Rule 4 of the Code of CivilProcedure, issues are not framed. Once an objection is raised insummary suit, the case converted in a summary suit, and withoutissues, it cannot be determined.5.Per contra, the learned Advocate appearing for respondents reliedon the Judgment of Bombay High Court in case of GroupGrampanchayat Versus Sunanda shamrao Bandishti andOthers, reported in 2011 (5) Bom.C.R. 162.6.Having considered the rival submissions it is to be noted that thesuccession proceedings are not a suit and are summary proceeding,and since there are admitted facts that all the claimants so also thepetitioners are legal heirs of deceased, the legal heirship certificate willhave to be granted in terms to all the legal heirs. The legal heirship 6WP 14080-2023certificate holder cannot acquire any title or interest in the estate of thedeceased. If right of the petitioners are affected qua any particularproperty, then the adjudication of the rights will have to be done in theappropriate Forum. The legal heirship proceeding are summary innature as has been held in the case of Group Grampanchayat(Supra) at paragraphs No.7 and 8 which reads as under : -Clauses 7 and 8 of the Regulation are material and readsthus :7. First: Recognized heirs, etc., competent tomanage property :An heir, executor or administrator, holding the propercertificate, may do all acts and grant all deeds competentto a legal heir, executor or administrator, and may sue andobtain judgment in any Court in that capacity. Second : But recognition gives no title to property: But, as the certificate confers no right to the property, butonly indicates the person who, for the time being, is in thelegal management thereof, the granting of such certificateshall not finally determine nor injure the rights of anyperson; and the certificate shall be annulled by the ZillaCourt, upon proof that another person has a preferableright. Third : No relief from responsibility to claimants :
Decision
8WP 14080-20237.The legal heirship proceedings being summary in nature and oncethere is admission as regards the applicants being the legal heirs of thedeceased, the objection of the petitioners to frame issues is notsustainable. The reliance placed on Section 141 read with Order XXRule 4 is misplaced as the proceedings are not in the nature of a suitand once there is an admission as regards the legal heirship of thedeceased, there is no further inquiry required at the instance of thepetitioners. There is nothing further to be determined by formulatingissues and leading evidence. In view of the same, the writ petition isdismissed. ( ARUN R. PEDNEKER, J. )vj gawade/-.