Sharad Dajisaheb Jawalkar vs Meerabai Prabhakar Joshi And ...
2021 Latest Caselaw 2180 Bom

                                                            WP.5268 of 2020.odt


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                        WRIT PETITION NO.5268 OF 2020

Sharad Dajisaheb Jawalkar,
Age : 39 years, Occ. Agri.,
r/o. Patoda, Tq. Ambajogai,
Dist. Beed                                              ..Petitioner

                Vs.

1.      Smt. Meerabai Prabhakar Joshi,
        Age : 70 Occ. Household,
        r/o. Patoda (M), Tq. Ambajogai,
        Dist. Beed

2.      Geetanjali Prabhakar Joshi,
        (Geetanjali d/o. Madhukar Joshi @
        Geetanjali w/o. Latpate)
        Age : 34 years, Occ. Household,
        r/o. Patoda (M), Tq. Ambajogai,
        Dist. Beed                                      ..Respondents

                             ----
Mr.Prasad B. Vaidya, Advocate h/f. Mr.S.S.Kulkarni, Advocate for
petitioner

Mr.V.M.Chate, Advocate for respondent nos.1 and 2
                              ----

                         CORAM : R.G. AVACHAT, J.

RESERVED ON : JANUARY 27, 2021 PRONOUNCED ON : FEBRUARY 03, 2021

JUDGMENT :-

Heard.

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2. Rule. Rule is made returnable forthwith. With the

consent of learned counsel for the parties, the petition is heard

finally.

3. The challenge in this Writ Petition is to the order

dated 30.06.2020 passed by the Court of Civil Judge, Senior

Division, Ambajogai, below application (Exh.61) in Misc. Civil

Application No.150 of 2015. By the impugned order, the

application preferred by the petitioner/objector for deleting the

name of Smt.Geetanjali Prabhakar Joshi from the array of the

application, came to be rejected.

4. The facts, necessary to decide present Writ Petition,

are as follows:-

One Prabhakar Dattatray Joshi died on 09.06.2013.

Smt.Meerabai and Smt.Prabhadevi (deceased) claimed to be

widows of deceased - Prabakar. Both Smt. Meerabai and

Smt.Prabhadevi, therefore, preferred an application for grant of

heirship certificate under Bombay Regulation Act, 1827. It

appears that the petitioner herein appeared in the said

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proceedings/application and raised objection. According to

him, deceased - Prabhakar executed a will in his favour.

Pending the application, Prabhavati passed away.

Smt. Geetanjali Prabhakar Joshi (respondent no.2 herein)

preferred an application to bring herself on record of the said

application in the capacity as a legal representative. According

to her, Prabhavati had adopted her. The trial Court, vide order

dated 13.09.2016, allowed the application. Respondent no.2,

thus, came on record as one of the applicants claiming heirship

certificate.

5. The petitioner herein moved application (Exh.61) for

deletion of Geetanjali from the array of the application, on the

ground that deceased - Prabhavati had claimed heirship

certificate in her personal right. On Prabhavati's death, the

application for heirship certificate stood abated since the right

to claim heirship certificate as widow of deceased - Prabhavati,

did not survive.

6. The trial Court rejected the application on the

ground that Geetanjali, in her application (Exh.22), had sought

4 WP.5268 of 2020

to bring herself on record in her individual capacity and not as

a legal representative of deceased - Prabhavati. According to

the trial Court, Geetanjali claimed to be daughter of deceased

- Prabhakar, hearing of the application commenced, etc.

7. Learned counsel for the petitioner would submit that

since Smt.Prabhavati had sought for heirship certificate as

widow of deceased - Prabhakar, Geetanjali could not have a

right to come on record of the application as legal

representative of Late Prabhavati. Learned counsel meant to

say that personal cause of action dies with the person. Learned

counsel made very many submissions, those need not be

referred to, since a very short issue has been involved in this

matter.

8. Learned counsel for the respondent would, on the

other hand, submit that the trial Court has passed a well

reasoned order. According to him, there is no evidence to

indicate the petitioner to be anyway entitled to inherit property

of the deceased - Prabhakar. The application preferred by the

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petitioner for grant of probate has been dismissed in default.

Co-widows can claim heirship certificate. Learned counsel for

respondent placed reliance on Section 4 of Hindu Marriage Act,

1955 and Hindu Succession Act, 1956. He also brought to my

notice Rule 1 of Section 10 of Hindu Succession Act, 1956, to

submit that if there are more widows than one, all the widows

together shall take one share. Learned counsel also relied on

following authorities:-

1. Mrs. Prabha Bhasin Vs. The State, AIR 1989 DELHI 244;

2. Group Grampanchayat Vs. Sunanda Shamrao Bandishti and ors., 2011(5) Bom.C.R. 162;

3. Aloysius Manuel Dsouza and ors. Vs. Mary Kamala William Manuel Dsouza and ors., 2006(6) Bom. C.R. 56

9. Prabhakar died on 09.06.2013. Smt. Meerabai and

Smt. Prabhavatibai (deceased) claimed to be widows of

deceased - Prabhakar. Both of them together, therefore, filed

application for grant of heirship certificate in their favour under

Bombay Regulation Act, 1827. The application is conspicuously

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silent to state, whether both Smt. Meerabai and Prabhavatibai

had married deceased - Prabhakar before 1956. It is, therefore,

for the trial Court to decide, whether both the widows or only

one of them is/was entitled for grant of heirship certificate.

10. Pending the application, Prabhavati died on

21.05.2016. On her demise, Geetanjali preferred application

(Exh.22) to bring herself on record as applicant. Copy of said

application is on record. It has been averred in paragraph 3 of

the application that, deceased - Prabhavati adopted Geetanjali

on 25.09.2013. Geetanjali, thus, became a legal heir on death

of Prabhavati and deceased - Prabhakar as well. In short, from

the averments of the application moved by Geetanjali, it is very

much clear that she has claimed heirship certificate in the

capacity as a daughter of deceased - Prabhakar and

Prabhavati.

11. It is true that the claim of Prabhavati of heirship

certificate is personal one. Prabhavati claimed to be a widow of

the deceased - Prabhakar. In her capacity as widow, she

claimed heirship certificate. On her demise, the right to claim

7 WP.5268 of 2020

heirship certificate as widow of Prabhakar no longer survives.

The question is whether Geetanjali could claim to be daughter

of deceased - Prabhakar. Admittedly, Prabhakar predeceased

Prabhavati on 09.06.2013. Geetanjali claimed to be an adopted

daughter. Geetanjali has specifically averred in paragraph 3 of

her application (Exh.22), that Prabhavati, during her lifetime,

adopted Geetanjali on 25.09.2013 i.e. after death of Prabhakar.

Section 8 of Hindu Adoptions and Maintenance Act, 1956 ("the

Act", for short) speaks of capacity of a female Hindu to take in

adoption. Any female Hindu who is of sound mind and is not a

minor has the capacity to take a son or daughter in adoption,

provided that if she has a husband living, she shall not adopt a

son or daughter except with the consent of her husband.

12. In the case in hand, Prabhakar, husband of

Prabhavati, had already passed away before she, allegedly,

adopted Geetanjali. Sub-section (4) of Section 14 of the Act

reads: where a widow or an unmarried woman adopts a child,

any husband whom she marries subsequently shall be deemed

to be the step-father of the adopted child.

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13. Since deceased - Prabhakar died on 09.06.2013 and

it is the claim of Geetanjali that she has been adopted by

Prabhavati on 25.09.2013, Geetanjali cannot claim relationship

as a daughter of deceased - Prabhakar by virtue of her

adoption by Prabhakar's widow - Prabhavati. Therefore, on her

pleading in the application (Exh.22), she is not entitled to claim

heirship certificate. The trial Court, therefore, ought to have

allowed the application (Exh.61) moved by present petitioner

for deletion of Geetanjali from the array of the application for

grant of heirship certificate.

14. Needless to mention that Geetanjali would be at

liberty to file a substantive suit to agitate her claim.

15. In the result, the Writ Petition succeeds. The

impugned order dated 30.06.2020 passed by learned Civil

Judge, Senior Division, Ambajogai, below application (Exh.61)

in Misc. Civil Application No.150 of 2015, is set aside. The

application (Exh.61) stands allowed. Rule is made absolute

accordingly.

[R.G. AVACHAT, J.] KBP