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.
This Misc. Petition seeks revocation of a Legal
Heirship Certificate granted under Section 2 of the Bombay
Regulation VIII of 1827, in favour of the respondents herein.
2 Petitioner no.1 claims to be the widow of the
deceased Chandrakant Shantaram Shankardas, while petitioner
nos.2 and 3 claim to be the daughters of the deceased through
petitioner no.1. The respondents were applicants for heirship
certificate in Misc. Petition No.160 of 2015. Respondent no.1
claims to be the wife of the deceased and respondent nos.2 to 4
claim to be his daughters through respondent no.1. The deceased
was a retired army officer who died intestate on 14th August,
2013.
3 The facts of the present case may be briefly noted as
follows:
In or about 1969, the marriage of respondent no.1
and the deceased was solemnized at Malvan. It is the case of the
petitioners that in the year 1982, respondent no.1 deserted the
deceased, ever since when the deceased and respondent no.1
were living separately. It is claimed that eventually, in or about
1983, there was a customary divorce between the deceased and
respondent no.1. It is the case of the petitioners that on 25th May,
1984, the deceased married petitioner no.1 as per Hindu rites
and ceremonies. It is claimed that not only did respondent no.1
not object to the marriage, but she herself made arrangements
for the same. On 10th November, 1986 and 7th August, 1993,
petitioner nos.2 and 3 were, respectively, born from the wedlock
between the deceased and petitioner no.1. It is the case of the
petitioners that they were living with the deceased in the
tenement which was being redeveloped through Slum
Rehabilitation Authority (“SRA”, for short). Pending such
redevelopment, on or about 14th August, 2013, the deceased
passed away. It is the case of the petitioners that petitioner no.1
started receiving monthly compensation of Rs.14,000/- from the
developer M/s.Surana Constructions, and continued to do so till
about March 2016. Around March 2016, the petitioners learnt, on
an application under Right to Information Act, that the
respondents had obtained legal heirship certificate in respect of
their alleged heirship of the deceased through Misc. Application
No.160 of 2015. The petitioners also learnt that based on the
legal heirship certificate, the Collector had added the name of
respondent no.1 in Annexure–II in respect of the redevelopment
project. The petitioners raised an objection before the SRA,
concerning inclusion of the name of respondent no.1 in
Annexure–II. The objection was rejected by SRA. In the premises,
the present petition for revocation of the legal heirship certificate
is moved by the petitioners before this Court.
4 The record of the case reveals that Misc. Petition
No.160 of 2015, under Section 2 of Bombay Regulation VIII of
1827, was moved before this Court on 10th September, 2015, in
pursuance of a requisition by SRA to that effect. It also appears
that the misc. petition moved by the respondents herein does not
refer to either the desertion or customary divorce between
respondent no.1 and the deceased or the marriage of the
deceased to petitioner no.1 or birth of petitioner nos.2 and 3 out
of the second wedlock. The misc. petition, on the other hand,
claims the respondents to be the only heirs and next of kin of the
deceased in accordance with law. It also appears that this Court,
vide order dated 14th December, 2015, dispensed with the
proclamation and, thereafter, on January 2016, made the petition
absolute and directed issuance of heirship certificate in favour of
the respondents.
5 The basis of the present revocation application is
that, firstly, the proceedings to obtain the heirship certificate
were defective in substance, inasmuch as the mandatory
requirement of a proclamation was dispensed with and, secondly,
the certificate itself was obtained fraudulently by making of false
suggestions and concealment from the Court of material facts.
It is submitted that the desertion and customary divorce between
the deceased and respondent no.1 as well as the marriage
between the deceased and petitioner no.1 and birth of two
daughters, i.e. petitioner nos.2 and 3, from out of that wedlock,
are matters which are actively concealed from the Court whilst
obtaining the heirship certificate. It is submitted that there is a
false suggestion deliberately and knowingly made in the original
application for heirship certificate that the respondents were the
only heirs and next of kin of the deceased.
6 Learned counsel for the petitioners, at the hearing of
the present misc. petition, does not press for recognition of the
right of petitioner no.1 as legal heir of the deceased, since there
was admittedly no formal divorce as between the deceased and
respondent no.1 (his first wife) in accordance with the provisions
of the Hindu Marriage Act. Learned counsel, however, relying on
the provisions of Section 16 of the Hindu Marriage Act, submits
that even assuming the marriage between the deceased and
petitioner no.1 herein to be void on account of spouse of the
deceased husband being living at the time of the marriage, the
children of the marriage are still treated as legitimate and their
rights as legal heirs and next of kin of the deceased, cannot be
denied to them.
7 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.
10 Let us now consider whether these three ingredients
are made out in the present case. Insofar as the falsehood of the
suggestion or concealment of the material facts is concerned,
there is ample material on record to show that the deceased
subsequently married petitioner no.1 and two daughters
(petitioner nos.2 and 3) were born to him out of that wedlock. The
petitioners have relied on the marriage card as well as birth
certificates of petitioner nos.2 and 3 issued by the Municipal
Corporation Greater Mumbai as also other identity proofs such as
Aadhar Card, Pan Card and Bank accounts as also voter ID Card
and Smart Card issued to the deceased as a retired Army
personal, in this behalf. There is overwhelming material on record
to show that the deceased married petitioner no.1 in the year
1984 and petitioner nos.2 and 3 were born out of this wedlock.
Even if the marriage of the deceased with petitioner no.1 were to
be treated as void under the provisions of Section 11 of the Hindu
Marriage Act by reason of the earlier spouse of the deceased,
namely, respondent no.1, being living on the date of the second
marriage, the heirship of petitioner nos.2 and 3 as daughters of
the deceased cannot be denied. As provided by Section 16 of the
Hindu marriage Act, notwithstanding that the marriage is null
and void under Section 11, any child of such marriage, who would
have been legitimate, if the marriage had been valid, shall be
legitimate. This is so even if there is a decree of nullity granted in
respect of that marriage under the Act or the marriage is held to
be void otherwise than on a petition under the Act. The statement
made in the original misc. petition for heriship certificate that the
respondents herein were the only legal heirs and next of kin of
the deceased, can thus be said to be plainly false. By the same
token, there is also concealment of a material fact, namely, that
there were two daughters of the deceased born out of the second
wedlock, who were living on the date of the application for
heirship certificate.
11 The next question to be considered is whether this
concealment is said to be an active concealment by a person
having knowledge or belief of the fact or the false suggestion is
made by a person who does not believe the same to be true.
At the very outset, in this behalf, it must be noted that petitioner
no.1 and respondent no.1 are real sisters. It is inherently
improbable that respondent no.1 would be ignorant of the fact
that her real sister was living with her deceased husband and two
daughters were born to her from him. Besides, it is important to
note that in the face of elaborate assertions of the petitioners in
their misc. petition that the deceased married petitioner no.1 on
25th May, 1984 and the two were living together from 1985 till the
time of his death and petitioner nos.2 and 3 were born out of that
wedlock on 10th November, 1986 and 1983, backed by voluminous
record in proof of such assertions, all that one finds in the
respondents' reply to the misc. petition is a bare denial of the
relevant paragraphs as a whole (paragraphs 7,8, 9, 10, 11 and 12
of the misc. petition), by a one liner that the respondents deny
and do not admit the contents thereof and put the petitioners to
the strict proof. The third important circumstance in this behalf
to be noted is that not only had the deceased himself executed an
affidavit on 21st September, 2004, for including the names of the
petitioners herein as his legal heirs in the records of his
employer, by asserting his marriage with petitioner no.1 and birth
of his two daughters, namely, petitioner nos.2 and 3, there is also
an affidavit by respondent no.1 herself testifying to the
correctness of the affidavit of the deceased. Though the
respondents contest the factum as well as the affirmation of the
aforesaid two affidavits, in the face of the voluminous evidence
referred to above and in the face of the rival pleadings of the
parties in the misc. petition, by a preponderance of probabilities,
the making of the affidavits is clearly believable. In the face of
this evidence, the respondents, and particularly respondent no.1,
who was the applicant in the original misc. petition for heirship
certificate, can certainly be fastened with the knowledge of the
marriage between the deceased and petitioner no.1 and, at any
rate, the birth of petitioner nos.2 and 3 out of the said wedlock.
The second ingredient of clause (b) is accordingly made out.
12 Insofar as other considerations are concerned, the
only objections raised by the respondents to the present
application for revocation are on the ground, firstly, that the
petitioners herein did not at any time apply for any succession or
heirship certificate, and, secondly, the petitioners have
encroached upon and forcibly occupied some other properties of
the deceased. None of the objections is material or germane from
the point of view of the present revocation application. There is
no compulsion for any legal heir of a deceased predecessor to
either apply for a succession certificate or a heirship certificate.
In fact, as required by Section 2 of Bombay Regulation VIII of
1982, it is only when the heir is desirous of having his right
formally recognized by a Court that he needs to apply to the
Judge for a heirship certificate. Forcible possession or occupation
of the property of the deceased is, by its very nature, neither here
nor there insofar as the present revocation application is
concerned.
13 The petitioners, accordingly, have made out a clear
case under Section 390 read with Section 383 (b) of the Indian
Succession Act, 1925. The heirship certificate issued in the
present case is, in the premises, liable to be revoked. Accordingly,
the petition is allowed in terms of prayer clause (a). No order as
to costs.
14 The parties, however, will be at liberty to apply for
heirship certificate in future jointly in favour of the respondents
and petitioner nos.2 and 3.
15 Since the main petition itself is disposed of by the
present order, the Notice of Motion does not survive and the
same is also disposed of.
16 Learned counsel for the respondents applies for stay
of this order. Since the present order is passed after fully hearing
the parties and also reserving liberty to apply for a heirship
certificate afresh, the prayer is rejected. In the facts of the case,
the respondents cannot be allowed to claim as sole heirs of the
deceased to the exclusion of petitioner nos.2 and 3 even for a
limited period.
(S.C. GUPTE, J.)
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