Writ Petition No. 15158 of 2023 · Bombay High Court
Case Details
1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 15158 OF 2023M/s. Mahalaxmi Constructions,Through its Proprietor,Dhananjay Sharadrao Tawar....PetitionerVersus1.Suwarna Wd/o. Babasaheb Ghuge2.Saanj D/o. Babasaheb Ghuge3.Tejaansh S/o. Babasaheb GhugeRespondent no. 2 and 3 MinorsU/g of their mother respondent no. 14.Prayagbai W/o. Tatyarao Ghuge5.The State of Maharashtra....Respondents....Advocate for Petitioner : Mr. Ganesh Gadhe h/f. Mr. P.M. NagargojeAdvoate for Respondent Nos. 1 & 4 : Mr. C.V. DharurkarAGP for Respondent No. 5 : Mr. V.M. Chate.... CORAM : SHAILESH P. BRAHME, J.DATE : 12th DECEMBER, 2023ORDER :1.Heard both the sides finally at the admission stage.2.The petitioner is challenging order dated 02.12.2023, belowExhibit 14 in Civil M.A. No. 580 of 2020, passed by learned 6th JointCivil Judge Senior Division, Aurangabad. Respondent no. 1 is the widowof deceased Babasaheb Tatyarao Ghuge. Respondent nos. 2 and 3 are
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2 their daughters. The respondent no. 4 is the mother of deceasedBabasaheb.3.Babasaheb was owner of three vehicles and other movableand immovable properties. After his death, respondent nos. 1 to 4 havefiled MARJI No. 580 of 2023 for getting Succession Certificate beforeCivil Judge Senior Division, Aurangabad. The proceedings are pending.The petitioner is not party to the proceedings referred above, filedapplication Exhibit 14 raising objection to the claim of SuccessionCertificate. It sought prayer of extending opportunity of hearing anddeciding the proceedings after converting them in the Civil Suit. Itcontended that three vehicles were transferred to it. The vehicles wereseized by the Police because offence was registered as deceasedBabasaheb had committed suicide.4.It is further contended that there were financial transactionsbetween deceased Babasaheb and the petitioner. Documents are availableto indicate transfer of vehicles. The petitioner applied for the custody ofvehicles to the Court. Trial Court granted custody but it was reversed inRevisional Court. The petitioner is prosecuting matter in the High Courtand there is interim order. It is contended that the respondents are notentitled to Succession Certificate to the extent of vehicles.5.Respondent nos. 1 to 4 contested application Exhibit 14.According to them, Succession Certificate is sought on the basis of
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3 undisputed relationship with the deceased. The objections of thepetitioners are contended to be unsustainable. There are mala fides foropposing the claim of the respondents.6.Learned counsel for the petitioner submits that therespondents have not denied the previous custody of the petitioner whenvehicles were seized, the amount outstanding against deceasedBabasaheb and the insurance papers of the vehicles. Learned counselsubmits that this shows the entitlement of the petitioner. As per Section373 (3) of Indian Succession Act, the petitioner has better, prima facie,claim. He has relied upon the orders passed by criminal courts underSection 457 of Code of Criminal Procedure.7.He would submit that if the Succession Certificate is issuedto the respondents, irreparable loss would be caused. The certificate isconclusive as per Section 381 of Indian Succession Act. When objectionsare invited, the petitioner raised objection legitimately by applicationExhibit 14. Considering the rival claims, learned counsel submits thatthe proceedings should have been converted into regular civil suit.8.Learned counsel for the petitioner submits that the judgmentcited by the petitioner and the written submissions have not beenconsidered by the learned Judge. Impugned order is perverse andunsustainable. 4 9.Per contra, learned counsel for the respondent nos. 1 to 4opposed the submissions. According to him, reliance on Section 295 ofIndian Succession Act, is not applicable to Succession Certificates. TheSuccession certificate does not confer title. For asserting independentright, the petitioner can file independent proceeding which is notprohibited under Section 387 of Indian Succession Act. It is furthercontended that the deceased was rightful owner of the vehicles. Theproceedings for custody of the vehicle are pending in the High Court andhave not attained finality. Therefore, petitioner can have no prima facieright, title or interest in the vehicles.10.Learned counsel seeks reliance upon following judgments :i.Smt. Ningamma and others Versus Smt. Saamma and others, AIR2001 Karnataka 339 ;ii.Madhvi Amma Bhawani Amma and others Versus Kunjikutty PillaiMeenakshi Pillai and others, AIR 2000 Supreme Court 2301 ;iii.C.K. Prahalada and others Versus State of Karnataka and others,(2008) 15 SCC 577 ;iv.Sheikh Mohammad Amin and another Versus Yasir Farooq andothers, passed by High Court of Jammu & Kashmir and Ladakh atSrinagar in RFA No. 57 of 2022. 5 11.I have considered rival submissions of the parties. Thepetitioner’s claim is founded on some transactions with deceasedBabasaheb without therebeing any documents transferring the vehicles.The petitioner or its proprietor is not related to the respondents privateparties. On the basis of some ledger account, documents of insurance,payment of money to the drivers and seizure of the vehicles from thecustody of the petitioner, objections are lodged against the respondents.12.The proceedings for Succession Certificate are summary innature. It cannot be converted into suit by referring to Section 295 ofIndian Succession Act. This is settled in Smt. Ningamma (supra)paragraph nos. 26 and 27.13.In the matter of Madhavi Amma Bhawani Amma (supra),Supreme Court held that in decision under Section 372 of IndianSuccession Act, would not preclude a party from filing subsequentproceeding or suit. Section 387 of Indian Succession Act, is an enablingprovision to file a suit and to raise the question. Paragraph nos. 13 to 19are relevant.14.It is made clear in case of C.K. Prahalada (supra) thatSuccession Certificate is for limited purpose and the Court grantingSuccession Certificate does not decide question of title. The proceedingsare summary in nature. 6 15.Learned counsel for the respondent has rightly referred toabove referred judgments to demonstrate the scope of enquiry for issuingSuccession Certificate which the petitioner is trying to enlarge ortransgress. The petitioner has an independent remedy to file suit claimingtitle and interest over the vehicles in question. In the proceedingsinitiated by the respondents it cannot assert the title Section 381 nor 387of Indian Succession Act, do not preclude it from filing suit. Thesubmissions of learned counsel for the petitioner referring to Section 387and 373 (3) of Indian Succession Act, are meritless.16.The submission of the petitioner that the proceedings beconverted into Civil Suit is fallacious. Section 295 cannot be madeapplicable for proceedings under Chapter X of Indian Succession Act.I propose to agree with the view taken by Karnataka High Court.17.The submission that Succession Certificate be issuedconsidering better, prima facie, case has also no merit. Just becausevehicles are seized from custody of the petitioner and it is the petitionerwho sought custody under Seton 457 of Code of Criminal Procedure,cannot make the claim of the petitioner better. The respondents are closerelatives, undisputedly. They stand on the better footing than thepetitioner.18.The findings recorded by learned Judge are sound and basedupon legal provisions. Learned Judge has taken into account all the 7 aspect in the matter specially statutory provisions. I do not find any faultin the impugned order.19.Though application Exhibit 14 has a tenor of objection, itsprayer ‘B’ is in the form of relief. The said relief has no sanctity of law.Learned Judge is justified in rejecting application Exhibit 14. Thepetition is devoid of substance. Writ Petition is dismissed. [ SHAILESH P. BRAHME, J. ] Thakur-Chauhan/-