Bombay High Court
Dharmaraj Mahadeo Birajdar And ... vs Rudrabai Mahadeo Birajdar And ... on 25 February, 2021
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
928 WRIT PETITION NO. 5179 OF 2017
DHARMARAJ S/O MAHADEO BIRAJDAR AND OTHERS
VERSUS
SMT. RUDRABAI W/O MAHADEO BIRAJDAR AND OTHERS
......
Advocate for Petitioners : Mr. S. N. Lale Yelwatkar
Advocate for Respondent Nos. 1 to 4 : Mr. A. T. Kanawade
.....
CORAM : V. K. JADHAV, J.
DATED : 25TH FEBRUARY, 2021
PER COURT :-
1. By consent, heard both sides finally at admission stage.
2. Learned 3rd Joint Civil Judge Senior Division, Latur has
decided Misc. Application No. 353 of 2014 filed by the other
side for legal heirship certificate ex parte. Though learned
counsel for the respondents has vehemently submitted that
the said order is not ex parte order and the petitioners
herein have appeared in those proceedings, however, in the
order passed by learned 3rd Joint Civil Judge Senior Division,
Latur, I do not find any reference to the petitioners though
the petitioners were party to the said proceedings. Apart
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from this, being aggrieved by the same, the petitioners
preferred appeal before the District Court along with Civil
Misc. Application (Delay) No. 194 of 2015 for condonation
of delay. There was delay of 39 days caused in filing the
appeal against the judgment and order of the 3rd Joint Civil
Judge Senior Division, Latur in Misc. Application No. 353 of
2014 dated 29.07.2015. Learned District Judge-4,Latur, by
the impugned order passed on 13.07.2016 below Exhibit 1
in Civil Misc. Application (Delay) No. 194 of 2015, has
rejected the said application. Hence this Writ petition.
3. Learned counsel for the petitioners submits that
learned District Judge-4, Latur has rejected the application
seeking condonation of delay mainly on the ground that the
appeal is not maintainable and therefore, the delay
application too is not maintainable. Learned counsel submits
that the entire approach of the District Judge is erroneous.
Learned counsel submits that though learned District Judge
has referred the provisions of Sections 390, 384 of the
Indian Succession Act, 1925, however, learned District Judge
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has ignored the provisions of Section 388 of the Indian
Succession Act, 1925.
4. Learned counsel for the respondents submits that even
if the provisions of Section 388 are attracted and made
applicable to the facts and circumstances of the present case,
in terms of Sub-section (3) of Section 388, revision is
maintainable before this Court. However, the petitioners
have filed Writ Petition.
5. I have carefully perused the impugned order passed by
District Judge-4, Latur on 13.07.2016 below Exhibit 1 in
Civil Misc. Application (Delay) No. 194 of 2015.
6. Rules 1 and 2 of the Bombay Regulation VIII of 1827
are reproduced herein below:
"1. 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 of usage
applicable to the disposal of the said property,
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without making any previous application to the
Court to be formally recognized.
2. First. - 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, and, if satisfied, grant him a
certificate of heirship, executorship or
administratorship."
7. In terms of the provisions of Rule 1 of the Bombay
Regulation VIII of 1827, 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
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conformity with the law of usage applicable to the disposal
of the said property, without making any previous
application to the Court to be formally recognized. However,
in terms of Rule 2 of the Bombay Regulation VIII of 1827, 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, or application, shall issue a proclamation and if
satisfied after considering the objections, if any, grant him a
certificate of heirship, executorship or administratorship.
8. In the instant case, learned District Judge, by referring
the provisions of Section 374 of the Indian Succession Act,
1925, erroneously observed that legal heirship certificate
cannot be granted as these provisions are applicable only to
debts and securities i.e. movable property and not in concern
of immovable property. Learned District Judge has ignored
the provisions of Rules 1 and 2 of the Bombay Regulation
VIII of 1827.
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9. Furthermore, though Section 388 read with Section
390 of the Indian Succession Act, 1925 prescribes the
jurisdiction of inferior courts along with the jurisdiction of
District Court for the purpose of this Act, the learned District
Judge has not considered the same. In terms of the proviso
to Sub-section (2) of Section 388, an appeal from any such
order of an inferior court as is mentioned in Sub-section (1)
of Section 384 shall lie to the District Judge, and not to the
High Court, and the District Judge may, if he thinks fit, by
his order on the appeal, make any such declaration and
direction as that sub-section authorises the High Court to
make by its order on an appeal from an order of a District
Judge. In view of the same, I find the order passed by the
District Judge as not only improper, incorrect and illegal, but
the learned District Judge has refused to exercise the
jurisdiction though entrusted to him in terms of the
provisions of Section 388 of the Indian Succession Act, 1925.
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10. Learned counsel for the respondents though
vehemently submitted that the alternate remedy of filing a
revision is available, however, considering the glaring
illegality committed by the learned District Judge, I am
inclined to partly allow the Writ Petition to the extent of
remanding the matter to the learned District Judge to decide
Civil Misc. Application (Delay) No. 194 of 2015 on its own
merits. Hence the following order:
ORDER
I. The Writ Petition is hereby partly allowed.
II. The impugned order dated 13.07.2016 passed by the
learned District Judge-4, Latur in Civil Misc. Application
(Delay) No. 194 of 2015 is hereby quashed and set aside.
III. The matter is remanded to the learned District Judge
with the following directions;
The Learned District Judge shall decide the
Civil Misc. Application (Delay) No. 194 of 2015
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on its own merits, as expeditiously as possible,
preferably within a period of three months
from the date of appearance of the parties
before him.
IV. The parties shall appear before the learned District
Judge on 11.03.2021.
V. The Writ Petition is accordingly disposed off.
( V. K. JADHAV, J. )
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