Bombay High Court
Shantabai Ganesh Sagare vs Kantabai Laxman Patil on 26 April, 2022
Bench: Mangesh S. Patil
942 CRA 198 19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
942 CRA NO.198 OF 2019
SHANTABAI GANESH SAGARE
VERSUS
KANTABAI LAXMAN PATIL
...
Advocate for Petitioner : Mr. Deshpande Amit S.
Advocate for Respondent : Mr. R.R. Suryawanshi.
CORAM : MANGESH S. PATIL, J.
DATE : 26.04.2022.
PER COURT :
The parties are real sisters. The revision applicant submitted an
application under Section 2 of the Bombay Regulation Act seeking heirship
certificate in the name of both of them as heirs of deceased father Mahadeo.
2. The trial court directed heirship certificate to be issued in the name of
both of them but put a rider that the certificate would not be used for
mutating applicant's name to the house property left behind by their
deceased father.
3. Being aggrieved by such a rider put by the trial court the revision
applicant preferred appeal. By the judgment and order under challenge it
has been dismissed.
4. It is a matter of record that Mahadeo had left behind a house property.
Though the revision applicant claimed heirship certificate under the Bombay
Regulation in the name of both the parties who are real sisters inter se, the
respondent had raised an issue by contending that Mahadeo had bequeathed
942 CRA 198 19.odt
the house property to her by will dated 05.12.2007.
5. Having noticed that it was a summary enquiry and the dispute
pertains to right and title to the house property, the trial court as also the
lower appellate court directed the heirship certificate to be issued in the
name of both of them but put up a rider mentioned herein above.
6. Learned advocate for the revision applicant would vehemently submit
that the trial court had grossly erred in putting the rider. The trial court
had no jurisdiction to put up any such rider or condition. He would further
submit that even that condition merely restricts the revision applicant's
power to get her name mutated to the suit property but it does not put a
similar restriction on the power of respondent.
7. The learned advocate for the respondent would submit that the
respondent has been propounding a will. Affidavit of the attesting witness
was filed along with her reply to the application and there is no illegality.
8. Having considered the rival submissions and after perusal of the
record it does appear that there is no dispute about the fact that the parties
to the proceeding are real sisters inter se. Their father Mahadeo left behind
a house property. The respondent claims that he executed a will and
bequeathed the house property to her alone. To the extent of accepting the
request of the revision applicant for issuance of certificate in the name of
both of them there cannot be any two opinion.
942 CRA 198 19.odt
9. As can be seen from the paragraph No. 9 of the order of the trial
court, noticing that there was a serious dispute as to the title to the house
property and that it was not an appropriate proceeding to embark upon and
decide that issue and it was also specifically observed that the parties were
well advised to approach a civil court to get their rights decided in a
substantive proceeding. Having noticed such a dispute, in all probability, the
trial court had put up a condition that the certificate should not be used for
effecting any mutation.
10. Though the learned appellate court by referring to various clauses of
the Bombay Regulation and particularly Clause No. 7 has found that since it
was a summary proceeding, the dispute as to the title could not be gone into
and decided, has not apparently examined propriety or otherwise and
legality or otherwise of putting a condition by the trial court.
11. If the condition is read in juxtaposition with the observations in
paragraph No. 9 of the order passed by the trial court, as has been rightly
pointed out by the learned advocate for the revision applicant, the rider only
prohibits her from getting her name mutated on the record on the basis of
the certificate. It does not similarly bind the respondent with the condition.
If at all the trial court was of the opinion that the certificate should not be
misused since the issue as to the title to the property was not decided by a
competent civil court, it would have been appropriate if even the respondent
was similarly prevented from getting her name mutated to the suit property
942 CRA 198 19.odt
on the basis of certificate to be issued. Pertinently, the lower appellate court
has not examined this aspect. Therefore, though there is no apparent
illegality in dismissing the appeal by the lower appellate court, it would
have been judicious to make the condition operative against both the parties
or else to delete it outrightly.
12. Be that as it may, this is a revision under Section 115 of the Code of
Civil Procedure. Unless there is something to demonstrate that the
observations and conclusions drawn by the courts below are perverse,
arbitrary and capricious, this court cannot substitute its own opinion in
place of the one of the lower courts.
13. Propriety apart, the orders of the courts below do not seem to be
either perverse, arbitrary or capricious.
14. The Revision Application is dismissed. It is made clear that it would
always be open for the parties to get their right as to the title to the property
decided in an appropriate proceeding.
(MANGESH S. PATIL, J.)
mkd/-
