A perusal of the relevant provisions of the Regulation
would show that the Preamble itself provides that it is in general
desirable that heirs, executors or legal administrators of persons
deceased should, unless their right is disputed, be allowed to
assume the management of the estate of the deceased. The words
“unless their right is disputed” are crucial, particularly in the
peculiar facts and circumstances of the present case.{Para 16}
17. Clause 4 of the Regulation is also significant because it
mandates that the Court shall summarily investigate the grounds
of objection on the one hand and the right of claimants on the
other hand before issuing legal heirship certificate. The said clause
further specifically mandates that if the Court comes to a
conclusion that the question at issue between the parties is of a
complicated or difficult nature, the Court can suspend the
proceedings until the said question is put at rest by way of a
regular suit instituted by one of the parties.
18. In the present case, the facts and circumstances are such
that the respondents are seeking to deprive the petitioner, who is
admittedly the mother of the deceased Mahesh, to even raise a
dispute in terms of the provisions of the aforesaid Regulation. All
that the petitioner desires by way of being transposed is to have
an opportunity to dispute the claim made by the respondents on
the basis of the said purported Will, in view of the amended
application now pending consideration before the Court below.
There cannot be any dispute about the general propositions
discussed by the Court below in the impugned order that the
proceedings under the said Regulation are necessarily summary in nature and that finality of rights of the disputing parties would be achieved only after appropriate proceedings are instituted and
culminate before the competent Civil Court. But, in the facts and
circumstances of the present case, the question that was required
to be considered by the Court below was, as to whether the
petitioner could be deprived of her right to raise an objection to
the exclusive right sought to be claimed by the respondents on the basis of the amended application. This is particularly because, in the first place, while filing the original application, the respondents did not join the petitioner as a non-applicant and even more significantly they did not even mention existence of the
purported Will dated 15/09/2012, said to have been executed by
deceased Mahesh in their favour. Thus, in the facts and
circumstances of the present case, this Court has come to the
conclusion that from the very beginning the respondents have
been making attempts to deprive the petitioner of her basic right
of even disputing the claims made by them insofar as grant of
legal heirship certificate is concerned. Attempts have been made
to nip in the bud, the right of the petitioner to raise her claim.
Whether the Court below finally accepts the claim of the petitioner or not is a different matter, but she cannot be deprived of her right to raise objection to the manner in which the respondents have sought relief from the Court below under the provisions of the said Regulation.
19. In view of the above, it is found that the impugned order
is wholly unsustainable. Accordingly, the writ petition is allowed.
The impugned order is quashed and set aside. The application
filed by the petitioner at Exhibit-23 is allowed in terms of the
prayer made therein. Consequently, the application pending before the Court below shall stand amended by transposing the petitioner as objector.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2601 OF 2019
Vijayabai Yugraj Rupareliya Vs Chaya Wd/o Mahesh Rupareliya,
CORAM : MANISH PITALE, J.
DATE : 05.02.2020
Heard.
2. Rule. Rule made returnable forthwith. The writ petition
is heard finally with the consent of the learned counsel for the
parties.
3. By this writ petition, the petitioner has challenged order
dated 11/03/2019 passed by the Court of Civil Judge, Junior
Division, Chikhali, District Buldhana (herein after referred to as
“Court below”) in Succession Case No.1 of 2018, whereby
application filed on her behalf for being transposed as an objector
in the proceedings, stood rejected.
4. One Mahesh Yuvraj Rupareliya expired on 25/04/2017.
The present petition concerns the petitioner and the respondents
herein raising their competing claims for being issued a legal
heirship certificate under the Bombay Regulation VIII of 1827
(hereinafter referred as “Regulation”). It is undisputed that the
petitioner is the mother of the deceased Mahesh and the
respondents are the widow and children. The said deceased was a
resident of Chikhali and he had a licence in his name for running a
restaurant and bar. The respondents herein filed an application
on 19/01/2018 before the aforesaid Court under the provisions of
the said Regulation for grant of legal heirship certificate. The nonapplicant
in the said application filed on behalf of the respondents
was shown as nil. On 20/02/2018, the petitioner filed an
objection in the said application, seeking dismissal of the same on
the ground that the applicants could not have moved such an
application behind the back of the petitioner, who is the mother of
the said deceased Mahesh. The said objection was opposed on
behalf of the respondents. By order dated 18/09/2018, the Court
allowed the application, specifically observing that the objection
raised by the objector (petitioner herein) seems to be just and
proper. Yet, the Court came to the conclusion that even if the
petitioner had prayed for rejection of the application filed by the
respondents, in the facts and circumstances of the case, it would
be just and proper to direct the respondents to add the petitioner
as one of the applicants in the original application for grant of
legal heirship certificate instead of dismissing the application.
Accordingly, the petitioner was added as a co-applicant along with
the respondents herein for grant of legal heirship certificate.
5. The dispute did not end at this stage, because during the
pendency of the objection filed by the petitioner, on 18/04/2018,
the respondents had moved an application for amendment of the
original application for grant of legal heirship certificate. It is in
this application for amendment that for the first time, the
respondents claimed that a Will dated 15/09/2012 had been
executed by deceased Mahesh, whereby he had bequeathed his
right, title and interests exclusively in favour of the respondents
herein. It was during the pendency of this application for
amendment that the Court below had passed the order dated
18/09/2018, directing the petitioner to be added as a co-applicant
along with the respondents.
6. On 20/10/2018, the said application for amendment
stood allowed, as a consequence of which paras 3-A and 3-B stood
added to the original application and the prayer stood specifically
amended to state that the legal heirship certificate be granted only
to the respondents herein as beneficiaries under the said Will.
7. Faced with this situation, the petitioner moved an
application seeking consequential amendment of the original
objection as the amendment granted in the application completely
prevented the petitioner from raising any claim for issuance of
legal heirship certificate as a co-applicant with the respondents
herein. This application was marked as Exhibit-22 and by order
dated 04/02/2019, the same was rejected by the Court below by a
cryptic order.
8. It is in this backdrop that the petitioner was constrained
to move the application for transposition so that she could be
arrayed as an objector in the proceedings. This application was
marked as Exhibit-23. The petitioner stated that she desired to
object to the application in its amended form and therefore, it was
necessary to transpose her as an objector. This was also in the
backdrop of the application for amendment being rejected on the
ground that the original objection itself had been disposed of and
that in the absence of any objection on record, the amendment
application could not have been granted. The petitioner sought an
opportunity to raise her grievance with regard to the pleadings
introduced by way of amendment by the respondents herein.
9. By the impugned order dated 11/03/2019, the Court
below rejected the said application for transposition, primarily on
the ground that the nature of the proceedings under the aforesaid
Regulation are summary in nature and that in any event the rights
of contesting parties would not reach finality and they would be
subject to proceedings that may be initiated before the competent
Civil Court.
10. The learned counsel appearing for the petitioner
submitted that although the Court below was correct in making
observations regarding the nature of proceedings under the
aforesaid Regulation and that the rights of parties would be
subject to proceedings that may be initiated before the competent
Civil Court, it was submitted that the peculiar facts and
circumstances of the present case required that in the interest of
justice, the petitioner was permitted to be transposed as an
objector to be able to place objections on record, whereupon the
Court below could exercise jurisdiction as per the aforesaid
Regulation. The learned counsel for the petitioner invited attention of
this Court to the Preamble of the aforesaid Regulation and
particularly Clause 4 thereof to support the contentions raised on
behalf of the petitioner.
11. On the other hand, the learned counsel appearing for
the respondents, submitted that since the petitioner had failed to
challenge order dated 18/09/2018, whereby she was added as a
co-applicant with the respondents, it was too late in the day to
claim transposition as an objector. It was submitted that there was
no objection existing on record and that in any case, the final
order that may be passed by the Court below under the aforesaid
Regulation would only indicate as to who would assume
management of the estate belonging to the deceased Mahesh and
that if the petitioner had any grievance with regard to the said
Will Deed or any other aspect of the matter, she could certainly
approach the competent Civil Court. On this basis, it was
submitted that the approach adopted by the Court below was
justified.
12. Heard learned counsel for the rival parties and perused
the material on record. The sequence of events in the present
case does indicate that the petitioner had raised a full-fledged
objection to the application moved by the respondents under the
provisions of the said Regulation. A perusal of the objection raised
on behalf of the petitioner shows that she specifically sought
dismissal of the said application by contending that the
respondents could not have moved such an application behind the
back of the petitioner, who was admittedly the mother of deceased
Mahesh. The contentions raised on behalf of the petitioner in the
objection were accepted by the Court below, which is evident from
order dated 18/09/2018 passed by the Court below. Yet, the Court
below thought it fit to add the petitioner as a co-applicant in the
application moved by the respondents under the aforesaid
Regulation, instead of throwing out the application itself. At this
point in time, the application before the Court under the
provisions of the aforesaid Regulation, as it stood, prayed for grant
of legal heirship certificate in favour of the applicants. This clearly
included the petitioner as a co-applicant, as a consequence of the
order dated 18/09/2018, passed by the Court.
13. The complication arose only when the Court below
allowed the amendment application moved by the respondents by
order dated 20/10/2018. A perusal of the said order shows that it
was cryptic in nature and surprisingly there was an observation
made that no prejudice would be caused to any one if the
application was allowed. The effect of the amendment being
allowed was obviously that the petitioner herein was completely
left out from claiming her right to claim legal heirship certificate
even though she was arrayed as a co-applicant. An exclusive legal
heirship certificate in favour of only the respondents was sought
by way of amendment by placing reliance upon purported Will
Deed dated 15/09/2012, said to have been executed by deceased
Mahesh. It is significant that the respondents did not refer to the
said purported Will Deed when they moved the application on
19/01/2018 under the said Regulation before the Court below.
The application for amendment was filed on 18/04/2019, which
was about two months after the petitioner filed her objection
before the Court below.
14. In this situation, when the petitioner realized that by
way of amendment, she was sought to be kept out from raising a
claim towards legal heirship certificate, an application was moved
for consequential amendment of the objection filed on her behalf.
The said application was rejected only on the ground that since no
objection was on record, such an amendment could not be
permitted. This demonstrates that when the Court below had
itself recognized the right of the petitioner for consideration of her
claim even if along with the respondents as co-applicant, for
issuance of legal heirship certificate, the said opportunity of
consideration of her right stood taken away from her when
the amendment of the original application was permitted by
the subsequent order dated 28/10/2018 passed by the Court
below.
15. In this situation, there was no alternative for the
petitioner, but to file the application for transposition at Exhibit-
23. All that the petitioner desired by moving this application was
to be granted an opportunity to pursue her objection in view of
the subsequent development of the original application being
amended. This shows that the contention raised on behalf of the
respondents cannot be countenanced that since the petitioner did
not challenge the amendment of the original application, she
could not claim her right to be transposed.
16. A perusal of the relevant provisions of the Regulation
would show that the Preamble itself provides that it is in general
desirable that heirs, executors or legal administrators of persons
deceased should, unless their right is disputed, be allowed to
assume the management of the estate of the deceased. The words
“unless their right is disputed” are crucial, particularly in the
peculiar facts and circumstances of the present case.
17. Clause 4 of the Regulation is also significant because it
mandates that the Court shall summarily investigate the grounds
of objection on the one hand and the right of claimants on the
other hand before issuing legal heirship certificate. The said clause
further specifically mandates that if the Court comes to a
conclusion that the question at issue between the parties is of a
complicated or difficult nature, the Court can suspend the
proceedings until the said question is put at rest by way of a
regular suit instituted by one of the parties.
18. In the present case, the facts and circumstances are such
that the respondents are seeking to deprive the petitioner, who is
admittedly the mother of the deceased Mahesh, to even raise a
dispute in terms of the provisions of the aforesaid Regulation. All
that the petitioner desires by way of being transposed is to have
an opportunity to dispute the claim made by the respondents on
the basis of the said purported Will, in view of the amended
application now pending consideration before the Court below.
There cannot be any dispute about the general propositions
discussed by the Court below in the impugned order that the
proceedings under the said Regulation are necessarily summary in
nature and that finality of rights of the disputing parties would be
achieved only after appropriate proceedings are instituted and
culminate before the competent Civil Court. But, in the facts and
circumstances of the present case, the question that was required
to be considered by the Court below was, as to whether the
petitioner could be deprived of her right to raise an objection to
the exclusive right sought to be claimed by the respondents on the
basis of the amended application. This is particularly because, in
the first place, while filing the original application, the
respondents did not join the petitioner as a non-applicant and
even more significantly they did not even mention existence of the
purported Will dated 15/09/2012, said to have been executed by
deceased Mahesh in their favour. Thus, in the facts and
circumstances of the present case, this Court has come to the
conclusion that from the very beginning the respondents have
been making attempts to deprive the petitioner of her basic right
of even disputing the claims made by them insofar as grant of
legal heirship certificate is concerned. Attempts have been made
to nip in the bud, the right of the petitioner to raise her claim.
Whether the Court below finally accepts the claim of the petitioner
or not is a different matter, but she cannot be deprived of her right
to raise objection to the manner in which the respondents have
sought relief from the Court below under the provisions of the
said Regulation.
19. In view of the above, it is found that the impugned order
is wholly unsustainable. Accordingly, the writ petition is allowed.
The impugned order is quashed and set aside. The application
filed by the petitioner at Exhibit-23 is allowed in terms of the
prayer made therein. Consequently, the application pending before
the Court below shall stand amended by transposing the petitioner
as objector. The Court below shall now give an opportunity to the
petitioner to raise an objection having been transposed in terms of
the prayer made by her in the application at Exhibit-23. The
petitioner shall raise such an objection within a period of four
weeks from today. The Court below shall then proceed to decide
the application and objection as expeditiously as possible.
20. Rule is made absolute in the above terms. No costs.
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