Bombay High Court
Dnyanoba Dagadu Harpale : vs Maya Baban Harpale And Anr. : on 25 November, 2011
Bench: R. M. Savant
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lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10367 OF 2010
Dnyanoba Dagadu Harpale : Petitioner
versus
Maya Baban Harpale and anr. : Respondents.
Mr. P K Hushing for the Petitioner.
Mr. Vishwajeet V Mohite for Respondent Nos.1 and 2.
CORAM : R M SAVANT, J.
DATE : 25th November 2011
ORAL JUDGMENT
1 Rule, with the consent of the parties made returnable forthwith
and heard.
2 The writ jurisdiction of this Court is invoked against the judgment
and order dated 09/08/2010 passed by the 6th Joint Civil Judge, Senior
Division by which order the application filed by the Respondents herein for
grant of Heirship Certificate came to be allowed.
3 The Respondent No.1 herein claims to be the legally wedded wife
of one Baban Dagadu Harpale. The Respondent No.1, aggrieved by the fact
that after the death of said Baban Harpale, the lands were entered in the name
of his brother Dnyoba Dagadu Harpale i.e. the Petitioner herein, filed a suit
being Regular Civil Suit No.4184 of 2000 for a declaration that she is the
legally wedded wife of the said Baban Harpale and claiming partition of the
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properties on the said basis. In the said suit, the parties went to trial and
ultimately the said suit came to be dismissed on 18/7/2003.
4 After dismissal of the suit filed by the Respondents, the
Respondents herein filed an application for grant of Heirship Certificate in
respect of the said Baban Harpale. The same was filed under the Bombay
Regulation VIII of 1827. In so far as the said Regulation is concerned, the
relevant Regulations are Regulations 4 and 5 which read thus :-
"(4) First - 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 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 required.
Second-- 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 a certificate until the
question has been tried by a regular suit instituted by
one of the parties.
(5) Whenever an executor is formally recognised,
under the rule contained in section 4, the authenticity
of the will , if any, by which he is appointed, shall be
proved, and the certificate of executorship shall be
endorsed thereon."
The said application filed by the Respondents was opposed by the Petitioner as
well as the other heirs of Dagadu Khandu Harpale by filing their reply. In the
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said reply they had specifically averred that the suit filed by the Respondents,
who are the applicants in the application made under the said Regulation, was
dismissed by the Civil Court. A copy of the judgment in the said suit was also
annexed to the reply. As can be seen, in terms of IInd part of Regulation 4 that
if it appears to the Court that the question at issue between the parties is of a
complicated or difficult nature, the Judge may suspend the proceedings in the
application for a certificate until the question has been tried by a regular suit
instituted by one of the parties. In the instant case, as indicated above, the suit
had already been filed by the Respondents, and in the said suit, the Respondent
No.1 had sought a declaration that she is the legally wedded wife of the said
Baban Harpale. Though the said fact was brought to the notice of the learned
Judge trying the said application, the said fact has not been even adverted to
by the learned Judge.
5 In the context of the IInd part of Regulation 4, the learned Judge
ought to have considered the said aspect viz. that when the applicant had
already filed a suit and which suit has been dismissed, whether it was proper
for him to exercise the jurisdiction under the said Act in the matter of grant of
Heirship Certificate. The least that was expected was that the learned Judge
ought to have stayed his hands till the Appeal filed by the applicants was taken
up for hearing. The fact that the filing of the suit and its dismissal has not been
considered by the learned Judge in my view vitiates the impugned order. In my
view, therefore, the impugned order would have to be quashed and set aside
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and is accordingly quashed and set aside and the matter would have to be
relegated back to the concerned learned Judge for a de-novo consideration. On
such remand, the learned Judge to hear and decide the matter on the
touchstone of the dismissal of the suit filed by the Applicants by the Civil
Court. In the event the learned Judge is of the opinion that he can proceed
with the application filed by the Respondents for Heirship Certificate, he would
have to record reasons for the same. On remand the parties to appear before
the concerned court i.e. the learned 6th Joint, Civil Judge, Senior Division, Pune
on 15th December 2011, the concerned court, thereafter to fix the schedule as
per its convenience.
6 The above Writ Petition is accordingly allowed. Rule is
accordingly made absolute to the aforesaid extent, with parties to bear their
respective costs.
[R.M.SAVANT, J]
