It is true that, when application is made for heir certificate, in the first instance the concerned Court has to exercise powers in a summary manner and in a case where there no serious dispute, such procedure adopted by the Court and issuance of certificate may be acceptable. However, in the facts and circumstances of this case, when both the parties are seriously canvassing their claim, in that case, unless the competent civil Court records the findings after appreciation of evidence and after giving opportunity to the parties to prove the documents, it is not possible to accept the claim of either of the parties. In that view of the matter, in the facts of this case it will have to be held that, the appellate Court did reach to the correct conclusion. It is also not out of place to mention, that merely placing on record the marriage invitation card or certificate issued by Grampanchayat or any other document without proving the said, same is is not sufficient to prove the claim. It is necessary that such documents are required to be proved. In the facts of this case, Shobhabai and Mandanbai have placed number of documents on record and without proving such documents, it is not possible to record definite conclusion by adopting summary procedure. In that view of the matter, the view taken by the appellate Court needs no interference in revisional jurisdiction.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Civil Revision Application No. 134 of 2011
Decided On: 04.10.2011
Appellants: Shobhabai, W/o. Prakash Telure, Siddharth, S/o. Prakash Telure and Aamarpali, D/o. Prakash Telure
Vs.
Respondent: The State of Maharashtra, through Collector and Ors.
Hon'ble Judges/Coram:
S.S. Shinde, J.
1. Rule. Rule made returnable forthwith. With the consent of learned Counsel for the parties, the matter is taken up for final hearing.
2. This Civil Revision Application is filed challenging the judgment and order dated 04-03-2011 in Regular Civil Appeal No. 119 of 2007 passed by the District Judge-5 Aurangabad. The revision applicants herein filed M.A.R.J.I. No. 188 of 2006 in the Court of the Civil Judge, Junior Division, Kannad. The facts stated in the M.A.R.J.I. No. 188 of 2006 are reproduced herein below for ready reference.
1. That, the Prakash s/o Shahadu Telure (hereinafter referred the deceased) died on dt.23-10-2005 at village Kannad, Tq.Kannad Dist. Aurangabad.2. That the ordinary and permanent residence of deceased at the time of death was at Bhimnagar, Kannad Tq. Kannad Dist. Aurangabad.3. That the deceased had left the following members of the family :-
Sr. No. Name of the legal heirs. Relationship with
the deceased.1. Shobhabai w/o PrakashTelure Wife 2. Siddharth s/o PrakashTelure Son 3. Aamrapali d/o PrakashTelure daughter 4. That, the Petitioners No. 1 to 3 are the legal heirs of the deceased, besides them, there is no other successors legal representatives to the deceased. As such the Petitioners are entitled for heirship certificate as prayed. The deceased was governed by the Hindu Law.5. That the deceased has left no will, no application has been made for grant of letters of administration of the deceased.6. That, there is no impediment Under Section action 370 or other provisions of the Indian Succession Act and any other enactment to grant of the certificate or to the validity thereof when granted.7. That, the deceased was in service in the Revenue Office, Kannad under Deputy Collector, Sillod and working as a Talathi. He was died on the duty on dt. 23.10.2005.The Petitioner No. 1 would have been chances to get service on compassionate basis from the concerned department and to get official all benefits.8. That, the Petitioners when approached to the concerned Authority of department and requested to them to give benefits of compassionate basis, that time the concerned Authority has directed to the petitioner to obtain the legal heirship certificate from court for the above purpose.9. That, the legal heirship certificate may kindly be issued in the name of the above Petitioners.
3. The Civil Judge, Junior Division, Kannad passed the following order.
Petitioner moved this application for heirship certificate. A notice was published in local daily newspaper 'Tarun Bharat' calling anybody to raise objection if any within one month of the date of publication of the notice. In response of publication of said notice objector Mandanbai Prakash Telure and other appeared and filed objection at Exh. 14.Thus, this position is become contentious.Learned advocate S.K. Shejwal argued that the objector appeared beyond the period mentioned in the notice and on this point he submitted for discarding the objection. However, I found no substance in such argument, because though the objector appeared beyond the period mentioned in the notice, yet in the interest of justice an opportunity must be given to objector to contest the application.Since the petition is become contentious it needs to be sent to Hon'ble Civil Judge (S.D.) Aurangabad. Hence in view of Chapter XIV para 304 & 305 of Civil Manual, the petition be transferred to Hon'ble Civil Judge, Senior Division, Aurangabad.
4. On 23-03-2007 the Civil Judge, Senior Division, Aurangabad after considering the oral and documentary evidence, allowed the application filed by the revision applicants and issued certificate.
5. Aggrieved by the said judgment and order dated 23-03-2007 Respondent No. 2 herein Mandanbai filed Regular Civil Appeal No. 119 of 2007 before the Court of the District Judge-5 Aurangabad.
The District Judge-5, Aurangabad allowed the appeal filed by Mandanbai and quashed and set aside the order dated 23-03-2007 holding that there is no satisfactory evidence about the ceremonies of marriages and there is no evidence to show whose marriage took place first.
6. Being aggrieved by the judgment and order passed by the appellate Court, this Civil Revision Application is filed by the revision applicants.
Learned Counsel appearing for the revision applicants submits that, revision applicant No. 1 Shobhabai w/o Prakash Telure is legally wedded wife of deceased Prakash s/o Shahalu Telure. Revision applicant No. 2 Siddharth, revision applicant No. 3 Amarpali are son and daughter of deceased Prakash. Deceased Prakash was working as Talathi in the office of Deputy Collector, Sillod, who died on 23-10-2005. It is submitted that, after death of Prakash, the revision applicants approached to authority with a request to provide employment on compassionate ground. The authority then asked the revision applicants to bring legal heirs certificate for the benefit. Therefore, revision applicants filed application before the Civil Judge, Junior Division, Kannad under Bombay Regulation VIII of 1827. The Civil Judge, Junior Division, Kannad on receiving application from the revision applicants issued public proclamation inviting objection if any.
7. Respondent No. 2 herein Mandanbai after knowing, after expiry of period filed objection denying that the revision applicants are legal heirs of deceased Prakash and claimed that, she herself and her children are legal heirs of deceased Prakash. The Civil Judge, Junior Division, Kannad on receiving this objection from the Respondents herein, transferred the application to the Court of the Civil Judge, Senior Division, Aurangabad.
8. It is further submitted that, the Civil Judge, Senior Division, Aurangabad framed issues. In support of the claim of the revision applicants, revision applicant No. 1 Shobhabai w/o Prakash examined herself as P.W. 1 and in her support examined P.W. 2 Haribhau, P.W. 3 Bhimrao and produced the documentary evidence. These witnesses asserted that Mandanbai is wife of Sheku s/o Chinda. Respondent No. 1 Mandanbai examined herself as P.W. 1. Both the sides produced documentary evidence in support of their affidavits. Copy of affidavit and cross of P.W. 2 Haribhau is placed on record. Learned Counsel invited my attention to the affidavit and cross of P.W. 1 Shobhabai. He further invited my attention to copy of affidavit and cross of P.W. 2 Haribhau. Learned Counsel further invited my attention to affidavit of P.W. 3 Bhimrao which is placed on record alongwith Civil Revision Application.
Learned Counsel for the revision applicants further invited my attention to the affidavit in cross of D.W. 1 Mandanbai. Learned Counsel for the revision applicants would submit that, after hearing both the parties, the Civil Judge, Senior Division, Aurangabad has allowed Misc. Application No. 188 of 2006 thereby dismissing the objection raised by the Respondents and legal heirs certificate is rightly issued in favour of the revision applicants.
9. Learned Counsel for the revision applicants submits that, the appellate Court has exceeded the jurisdiction and erred in quashing and setting aside the judgment and order of the Civil Judge, Senior Division, Aurangabad for want of evidence of ceremony of marriage and dates of marriages. It is submitted that, the Civil Judge, Senior Division, Aurangabad investigated the question in dispute in summary proceedings where for proving marriage standard of proof need not be so high as required in regular civil proceedings. Learned Counsel further submitted that, without evidence of ceremony of marriage, there are factors i.e. acceptance of society as husband and wife, continuous cohabitation of parties as husband and wife, openly living as husband and wife and acceptance of their children by society, which provides sufficient and conclusive inference of the marriage. It is further submitted that, there is sufficient evidence to prove the marriage. P.W. 1 Shobhabai has stated on oath on 14051989 as per Budha Rites her marriage took place with deceased Prakash at village Wasadi. In her support, she examined P.W. 2 Haribhau, P.W. 3 Bhimrao who are real elder brother of deceased Prakash. These witnesses have also stated the same fact. They have no interest to accept a lady who is not married with their brother Prakash. Their version in the cross examination had not been shaken, they being members of family are competent to state on the facts of marriage of Prakash.
It is further submitted that, documentary evidence in support of marriage of revision applicant No. 1 with deceased Prakash was produced on record. Copy of invitation (marriage) card was produced on record. After the marriage, the information was recorded in the office of Grampanchayat Wasadi on 16-05-1989. Exhibit-27 is certificate issued by Grampanchayat Wasadi to that effect. Deceased Prakash was in service in the year 1992 and after his marriage, he submitted nominee form for getting benefits in future to his heirs. In the nomination form, deceased Prakash has shown Shobhabai w/o Prakash and Siddharth s/o Prakash as nominees. Learned Counsel submits that, the statement of Prakash amounts to an admission which is material aspect that the marriage of Shobhabai with deceased Prakash was solemnised performed. It is further submitted that, Respondent Mandanbai failed to prove her marriage with deceased Prakash. She failed to establish when her marriage took place. The District Judge failed to consider that Mandabai is wife of deceased Sheku s/o Chinda Lokhande, who was working as labourer in Kannad Sakhar Karkhana. Mandanbai had received benefits of her husband Sheku. Though Mandanbai denied the said fact, the document produced on record rebutted her denial. It is clear that, voters list is at Exh. 61, wherein name of Mandanbai is shown at Sr. No. 578 alongwith name of Prakash and Shoba at Serial No. 576 and 577 at House No. 18.It is further submitted that, the District Judge failed to consider other valuable evidence. Exh. 30 is death certificate of Sheku Chinda who died on 22-07-1989 and reported on 26-07-1989 in Grampanchayat. Exh. 33 is a copy of voters list for the year 1988 wherein Sheku s/o Chindaji is shown as No. 659 and Mandanbai wife of Sheku is at Sr. No. 660. The documents shown Mandanbai since before 1988 was wife of deceased Sheku s/o Chinda. Exh. 62 is a copy showing that Mandanbai had received the benefit of deceased Sheku s/o Chinda. It is not the case that above documents are fabricated.
10. It is further submitted that, Mandanbai after death of Prakash on the basis of affidavit dated 01-11-2006 of her brother Anna Sakharam Bagul obtained marriage certificate from Grampanchahyat Sawkheda showing her marriage took place on 19-04-1988 with Prakash. She filed objection on 12-01-2006, affidavit on 10-10-2006, cross examined on 19-12-2006, however, there is no reference of date of marriage in her cross examination. Therefore, it is clear that, the marriage certificate produced by Mandanbai is a created document and the appellate Court erred in giving importance to the said document. Learned Counsel further submitted that, the alleged documents which are produced on record by Mandanbai are in the year 2006.However, documents produced by revision applicant No. 1 are from year 1988,1989 onwards. Learned Counsel further submits that, the District Judge is not correct in holding that, from the assertion between the parties the matter is complicated and its nature is aggravated due to insufficient direct evidence. It is further submitted that, in the present case, the Civil Judge, Senior Division from the evidence on record was satisfied that, Shobhabai is legally married wife of deceased Prakash and Siddharth and Amarpali are son and daughter of deceased Prakash. It is submitted that, sufficient evidence was produced on record to show that Shobhabai married Prakash on 14-05-1989. Siddharth and Amarpali are begotten from Prakash. It is further submitted that, the revision applicants herein in support of their case, examined revision applicant No. 1 at Exh. 24. She also examined Haribhau Shahadu Telure and Bhimrao s/o Shahadu Telure, who are the real brothers of deceased Prakash. The learned Counsel for the revision applicants herein invited my attention to the number of documents which were produced on record before Court below which are as follows :
(1) certified copy of the death extract of deceased Prakash at Exh. 27 (2) certified copy of nomination filed by deceased Prakash in respect of Provident Fund at Exh. 28, (3) Photo copy of letter issued by Tahasildar Kannad at Exh. 29, (4) death extract of Sheku Chindhya Lokhande at Exh. 30,(5) the certificate issued by Municipal Council Kannad in respect of opponent No. 1 at Exh. 31, (6) the certificate issued by Kannad Sahakari Sakhar Karkhana Ltd., dated 06-02-2006 at Exh. 32, (7) voters list for the year 1988 of village Kannad at Exh. 33,(8) death extract of Prakash Telure at Exh. 34,(9) certificate issued by Kannad Municipal Council in respect of the revision applicants at Exh. 35,(10) the invitation card of Jaldan Vidhi in respect of deceased at Exh. 49,(11) the attested copy of monthly payment in respect of Sheku Lokhande at Exh. 62 and (12) death extract of Sheku Lokhande at Exh. 70.
11. Therefore, learned Counsel appearing for the revision applicants relying upon the grounds taken in the revision application, annexures thereto, documents placed on record and reasons recorded by the Civil Judge, Senior Division, Aurangabad while granting certificate in favour of the revision applicants would submit that, this Civil Revision Application deserves to be allowed. In the alternate, he submits that, in case this Court is not convinced to allow the Civil Revision Application, in that case, appointment/service of Siddharth may be protected till the suit filed by Mandanbai is finally disposed of.
12. On the other hand, learned Counsel appearing for the Respondents submitted that, the revision applicants herein are the original applicants who had filed the application M.A.R.J.I. No. 188 of 2006 for grant of heirship certificate, claiming to be the legal heirs of one deceased Prakash Shahadu Telure, r/o Kannad, Dist. Aurangabad, who was serving as Talathi. Said application came to be allowed by the learned Civil Judge, Senior Division, Aurangabad. It is further submitted that, aggrieved thereby, the respondents herein had preferred R.C.A. No. 119 of 2007 before the District Judge, Aurangabad, which came to be allowed and the judgment and order of the Civil Judge, Senior Division, Aurangabad granting heirship certificate to the revision applicants has been set aside. It is further submitted that, present Respondents are the original objectors before the Court of the first instance and the Appellants before the First Appellate Court.
It is further submitted that, original application M.A.R.J.I. No. 188 of 2006 was filed under the provision of Rule 4 of the Bombay Regulation VIII of 1827. The said Regulation VIII of 1827 clearly provides that, if somebody wants recognition in respect of the right to any movable or immovable property of any deceased person, he may apply for such recognition in the form of Certificate of heirship. If there is no any such right to any movable or immovable property, no such certificate can be granted. It is further submitted that, the revision applicants have not claimed the heirship certificate in expect of any property, either movable or immovable owned by the deceased Prakash and as such, the application legally was not tenable and ought to have been rejected. It is further submitted that, the parties to the proceedings have led oral and documentary evidence and as the inquiry was of summary nature, the documents have been exhibited without having been proved as per the provisions of the Indian Evidence Act. The documents produced and relied upon by the revision applicants herein at Exhbit-28, 29,31,32,35,49,62 and the marriage card filed at page No. 46 of paper book herein, have not been duly proved through proper witnesses.
13. Learned Counsel for the Respondents further submitted that, the oral evidence led by the revision applicants is also not trustworthy. The deposition of applicant No. 1 Shobhabai (P.W.1) is at page No. 27 of the paper book. She at the end of paragraph No. 1 of her examination in chief, has specifically contended that, she started residing with her deceased husband at Bhimnagar, Kannad and is still residing there. However, in her cross examination, in paragraph No. 9 at page No. 33 of the paper book, she has stated that she cannot tell the names of the adjoining residents of her house at Bhimnagar, Kannad. It is further submitted that, P.W. 1 has admitted that, her children are residing at village Wasadi, Tq. Kannad with her parents. It is further submitted that, P.W. 2 Haribbhau Telure also has admitted in his cross examination at Page No. 37 of paper book that, Shobhabai resides at Wasadi, Tq. Kannad Dist. Aurangabad.
It is further submitted that, original applicants have also examined another witness namely Bhimrao Telure (P.W.3) in support of their case. However, though he was cross examined, his cross examination is missing from the record and proceedings of the case and this fact was revealed during the hearing of the First Appeal and therefore, his testimony is of no avail to the revision applicants. It is also submitted that, there are other certain important admissions on record which go in favour of the present respondents. P.W. 2 Haribhau in his cross examination has clearly admitted that, Respondent No. 6 herein namely Vishal is the son of deceased Prakah Telore begotten from Respondent No. 1 Mandanbai and his name was mentioned in the invitation card that was circulated for the Jaladan Vidhi (the ceremony of the last rites of deceased Prakash), alongwith the names other relatives of said Prakash. It is also submitted that, photocopy of one such card was also produced by the revision applicants on record wherein the name of said Vishal Prakash Telure was missing.
14. Learned Counsel for the Respondents further submitted that, the revision applicants have produced the Voters list of Kannad Constituency for the year 1998 at Exhibit-33 which is at page 54 of paper book, to show that, Respondent No. 1 herein was the wife of one Sheku Chintaji and names of said Sheku and one Mandanbai are appearing at Sr. No. 659 and 660 in the said list and they are shown to be aged 35 and 30 years respectively. It is further submitted that, in the same list at Sr. No. 676 the name of deceased Prakash Shahadu also appears and his age is shown as 21 years and it is very much hard to digest that, a man can have or has any sexual relationship with a woman about 10 years elder than him. The revision applicants are trying to take disadvantage of the similarity in the name of respondent No. 1 with the name of wife of said Sheku Chintaji. It is further submitted that, the respondents herein have also produced on record before the Court of instance the number of documents which have presumptive value and they are school leaving certificates of the children at Exhibit Nos. 38, 39 and 40, the election identity card issued by the Government at Exhibit-36, voters list at Exhibit-47 and 61 and these all are the documents having presumptive value which has not been rebutted by the revision applicants. Learned Counsel further submitted that, first appellate Court after making the scrutiny of the abovesaid oral and documentary evidence has rightly come to the conclusion that, there is a complicated question at issue between the parties that of a complicated nature and can be resolved by a regular suit only and cannot be decided judiciously in a summary proceeding. The first Appellate Court, therefore, has rightly directed the parties to get the dispute settled by filing the regular suit in respect of their status. The learned Counsel further submittedthat, considering the above mentioned facts and position of law, Civil Revision Application may kindly be rejected.
15. I have given due consideration to the rival submissions. Since this is a Civil Revision Application, unless case is made out within scope of Section 115 of the Code of Civil Procedure, Civil Revision Application cannot be entertained. While exercising revisional jurisdiction, this Court has to keep in mind the scope of Section 115 of the Code of Civil Procedure.
In case of M.L. Sethi v. Shri. R.P. Kapoor, reported in MANU/SC/0245/1972 : A.I.R. 1972 SC 2379, the Supreme Court has observed that even gross errors of facts and law cannot be gone into in revisional jurisdiction. Yet, in another judgment in case of DLF Housing and Constructions Company (P) Ltd. v. Saroopsing and Ors. reported in MANU/SC/0491/1969 : AIR 1971 SC 2324, the Supreme Court held that while exercising revisional jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the errors have relation to the jurisdiction of the Court to try the dispute itself. Yet in another judgment in the case of Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar Hyderabad and Anr. v. Ajit Prasad Tarway Manager Purchase and Stores Hindustan Aeroinautics Ltd. Balanagar Hyderabad reported in MANU/SC/0692/1971 : AIR 1973 SC 76, the Honourable Supreme Court held that revisional Court can only see whether the Court below had jurisdiction. If it had jurisdiction to entertain the proceedings, the High Court cannot interfere. In the case of Harishankar and Ors. v. Rao Giridhari Lal Chowdhary, reported in AIR 1963 SC 698, the Supreme Court has distinguished between right of appeal and right of revision and held that, scope of revisional jurisdiction is limited. Yet in another judgment in the case of Faijulbee Hajeel and Ors. v. Yadali Amir Shaikh Ansari reported in MANU/MH/0299/1984 : 1984 (2) Bom.C.R. 253, the Division Bench of this Court held that the decision on question of facts is not amenable to revisional jurisdiction of the High Court. In the judgment in case of Sanjay Kumar Pandey and Ors. v. Gulabhar Sheikh and Ors. reported in AIR 2004 SC 3354 :MANU/SC/0327/2004 : (2004) (5) ALL MR S.C. 542], the Supreme Court held that the revisional court cannot refer to part of the evidence and reverse the findings of the fact. In paragraphs 4 and 5, the Court has clarified that the revisional would be exercised in exceptional circumstances and normally the party should file independent suit to establish title.
16. In the present case, the relevant provisions which are applicable are Chapter I of the Bombay Regulations, which reads thus :
Rules for the Recognition of Heirs, Executors and Administrators when there is a Competent Claimant:1. Legal heir, etc. of person deceased competent to represent him without recognition from court :Whenever a person dies leaving property, whether movable or immovable, the heir or executor, or legal administrator, may assume the management, or sue for the recovery, of the property, in conformity with the law or usage applicable to the disposal of the said property, without making any previous application to the Court to be formally recognized.2. First. But if such recognition requested, proclamation will be issued :But if an heir, executor or administrator is desirous of having his right formally recognized by the Court, for the purpose of rendering it more safe for persons in possession of, or indebted to, the estate to acknowledge and deal with him, the Judge, on application, shall issue a proclamation, in the form contained in Appendix A, inviting all persons who dispute the right of the applicant to appear in the Court within one month from the date of the proclamation and enter their objections, and declaring that, if no sufficient objection is offered, the Judge will proceed to receive proof of the right of the applicant, if satisfied, grant him a certificate of heirship, executorships ,or administrator ship .Second. Publication of proclamation :( Rep. Act. XII of 1873.)3. If no objection appears, recognition to be granted :If, at the expiration of the time mentioned in the proclamation no sufficient objection has been made, the Court shall forthwith receive such proof as may be offered of the right of the person making the claim, and if satisfied, shall grant a certificate in the form contained in Appendix B, declaring him the recognized heir, executor or administrator of the deceased.4. First: Objection appearing to the examined and recognition given or refused accordingly :If, before the expiration of the time, any objection is made to the right of the person claiming as heir, executor or administrator, the Judge, on a day to be fixed (of which is at least eight days previous notice shall be given to the parties), shall summarily investigate the grounds of the objections on the one hand, and of the right claimed on the other, examining such witnesses or other evidence as may be adduced by the parties, and either grant or refuse a certificate, as the circumstances of the case may require.Second : If question is complicated or difficult, matter to be left for adjudication :But if from the evidence adduced, it appears that the question at issue between the parties is of a complicated or difficult nature, the Judge may suspend proceedings in the application for certificate until the question has been tried by a regular suit instituted by one of the parties.Regulation 8 is important which reads thus :8. Refusal of a reorganization no judgment against claim of applicant :The refusal of a certificate by the Judge shall not finally determine the rights of the person whose application is refused, but it shall still be competent to him to institute a suit for the purpose of establishing his claim.
17. The appellate Court has considered extensively submissions of the parties and also has taken a note of various documents produced on record by the parties. The revision applicants herein filed/placed reliance on the following documents:
(1) certified copy of the death extract of deceased Prakash at Exh. 27 (2) certified copy of nomination filed by deceased Prakash in respect of Provident Fund at Exh. 28,(3) Photo copy of letter issued by Tahasildar Kannad at Exh. 29, (4) death extract of Sheku Chindhya Lokhande at Exh. 30,(5) the certificate issued by Municipal Council Kannad in respect of opponent No. 1 at Exh. 31, (6) the certificate issued by Kannad Sahakari Sakhar Karkhana Ltd., dated 06-02-2006 at Exh. 32, (7) voters list for the year 1988 of village Kannad at Exh. 33,(8) death extract of Prakash Telure at Exh. 34,(9) certificate issued by Kannad Municipal Council in respect of the revision applicants at Exh. 35,(10) the invitation card of Jaldan Vidhi in respect of deceased at Exh. 49,(11) the attested copy of monthly payment in respect of Sheku Lokhande at Exh. 62 and (12) death extract of Sheku Lokhande at Exh. 70.
18. Learned Counsel appearing for the respondents herein placed reliance/relied upon the following documents in support of their case. Respondent No. 1 Mandanbai examined herself at Exhibit-52. She produced on record (1) certified copy of school leaving register in respect of opponent No. 4 Sharda at Exh. 38, opponent No. 5 at Exh. 39, opponent No. 6 Vishal at Exh.40, (2) election identity card of opponent No. 1 at Exh.36, (3) the election identity card of deceased Prakash at Exh. 37,(4) Voters list at Exh. 47,(5) marriage registered certificate of Mandanbai with Prakash at Exh. 60, (6) Voters list dated 01-01-2006 at Exh. 61 and (7) affidavit of Anna Sakharam Bagul at Exh. 67.
19. The appellate Court has considered the case of the revision applicants that, opponent No. 2 Mandanbai is widow of Sheku who died on 02-07-1989 and further, Mandanbai has taken benefit due to his death from Kannad Sakhar Karkhana. The appellate Court observed that, though such contention is raised by the revision applicants, no any officer from the said sugar factory was examined so as to prove that, Mandanbai is widow of one deceased Sheku and she has obtained benefit from Kannad Sakhar Karkhana. Said aspect is considered in para-12 of the appellate Court's judgment.
20. In para-13 the appellate Court has observed that, the Respondents herein did not produce any document to show that opponent No. 3Ujwala is the daughter of deceased Prakash. The appellate Court in para-14 has considered the documents produced by the Respondents herein i.e. extract of school register of Sharda, Bharti and Vishal. It is observed that, the name of Prakash is appearing as their father. The birth date of Sharda, Bharti and Vishal is also recorded in the said paragraph. Other documents in respect of claim of the revision applicant No. 1 that, she is legally wedded wife of Prakash is also considered in the said paragraph. The appellate Court has extensively considered the documents produced by both the sides. The appellate Court in Para-15 has considered the provisions of Bombay Regulation Act, 1827.
In para-16 the appellate Court has recorded that, the lower Court without considering the status of opponent Nos. 3 and 6 has rejected their prayer though from the evidence through cross examination of witness No. 2 on behalf of the revision applicant No. 1 clearly and conclusively proved that opponent No. 5 is son of deceased Prakash, whether they are legitimate, illegitimate, have right to inherit the property or have no right to inherit the property have not been considered.
21. The appellate Court has considered the provision of Section 16 of the Hindu Marriage Act extensively in para-16 of the impugned judgment and reached to the conclusion that, if the judgment and order under challenge is kept as it is, it certainly will affect adversely forever against opponent Nos. 3 to 6. Therefore, the appellate Court recorded the findingS that, considering all facts and circumstances involved in the case, the Petitioners and opponents have failed to prove requisites so as to record positive findings on their respective assertions. Therefore, the appellate Court granted liberty to the parties to approach before the regular Court by filing a suit to get determine their status, rights and interest.
22. I have given anxious consideration to the points raised by the learned Counsel appearing for the respective parties. In revisional jurisdiction, unless their is some jurisdictional error is committed by the Court below or perverse findings are recorded by the Court below, in that case only interference is warranted.
23. On going through the rival contentions and documents which are placed on record, I am of the view that, the revision applicant No. 1 Shobhabai has not convincingly proved her marriage with Prakash. The reasons recorded by the appellate Court are inconsonance with the evidence brought on record. This Court while exercising revisional jurisdiction, should refrain from discussing any document or evidence brought on record since the appellate Court has granted liberty to the parties to approach the competent civil Court to get their rights and interest adjudicated by leading evidence. Any comments on the merits of the matter would prejudice the interest of the parties. Therefore, any extensive comments on the documents/evidence which is placed on record are avoided.
From careful perusal of the pleadings by the parties, documents placed on record and evidence scanned by the appellate Court, it will have to be concluded that, neither Shobhabai nor Mandanbai have placed sufficient evidence on record or proved documents which would lead to only inference that their marriage with Prakash is legal one. In the given case, it may be also necessary to find out whose marriage is first in time with Prakash. Therefore, unless appropriate evidence is led by the parties and documents are proved, in the facts and circumstances of this case, it is not possible to accept the claim of either Shobhabai or Mandanbai. In that view of the matter, in my considered opinion, the findings recorded by the appellate Court are in consonance with the evidence brought on record.
24. It is true that, when application is made for heir certificate, in the first instance the concerned Court has to exercise powers in a summary manner and in a case where there no serious dispute, such procedure adopted by the Court and issuance of certificate may be acceptable. However, in the facts and circumstances of this case, when both the parties are seriously canvassing their claim, in that case, unless the competent civil Court records the findings after appreciation of evidence and after giving opportunity to the parties to prove the documents, it is not possible to accept the claim of either of the parties. In that view of the matter, in the facts of this case it will have to be held that, the appellate Court did reach to the correct conclusion. It is also not out of place to mention, that merely placing on record the marriage invitation card or certificate issued by Grampanchayat or any other document without proving the said, same is is not sufficient to prove the claim. It is necessary that such documents are required to be proved. In the facts of this case, Shobhabai and Mandanbai have placed number of documents on record and without proving such documents, it is not possible to record definite conclusion by adopting summary procedure. In that view of the matter, the view taken by the appellate Court needs no interference in revisional jurisdiction.
During course of arguments, learned Counsel appearing for the revision applicants submitted that, revision applicant No. 2 has got appointment on compassionate ground on the basis of certificate already issued and therefore, in case Mandanbai files suit and till such suit is decided, interest of revision applicant No. 2 may be protected. of course, this is an alternate submission, in case revision fails.
25. As discussed hereinabove, I am not inclined to allow this Civil Revision Application. However, since revision applicant No. 2 has got employment on compassionate ground by producing certificate issued on the direction of the Court, in my opinion, ends of justice would meet if the appointment of revision applicant No. 2 is protected for further four months.
26.It is made clear that, this Court has not expressed any opinion about who should approach the civil Court. Since the appellate Court has given liberty to both the sides, it is for the parties to approach the competent civil Court and get their rights and interest adjudicated and decided. However, it is made clear that, the appointment of revision applicant No. 2 Siddharth should not be disturbed for four months from today.
27. The Civil Revision Application stands dismissed. Rule discharged. However, it is made clear that, the appointment of revision applicant No. 2 Siddharath is protected for four months from today.
Any observations hereinabove are made only for the purpose of deciding this Civil Revision Application and would not come in the way of parties, while prosecuting the suits before the competent Court.
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