Bombay High Court
Nita W/O Baburao Khadse (Nita Wd/O ... vs Smt. Lalita Alias Treza Wd/O Avan ... on 15 June, 2022
Bench: Manish Pitale
1/6 16-WP 1113.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1113 OF 2021
Nita w/o Baburao Khadse (Nita wd/o Ewan Tayade)
vs.
Smt. Lalita Alias Treza wd/o Avan alias Ashok Tayade and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. M.R.Johrapurkar, Advocate for petitioner.
Mr. V. M.Gadkari, Advocate for respondent No.4.
CORAM : MANISH PITALE J.
DATE : 15/06/2022
The present petition challenges order
dated 14/02/2019, passed by the Court of District
Judge - 6, Akola (hereinafter referred to as the
'District Court'), whereby an appeal filed by the
respondents was allowed and judgment and order
dated 28/07/2016, passed by the Court of Civil
Judge Senior Division, Akola, was set aside. While
setting aside the aforesaid order, the District Court
directed that heirship certificate be issued in favour of
the respondents under Rule II of the Bombay
Regulation VIII of 1827.
2. In the present case, a proceeding under
the aforesaid Regulation was initiated by the
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respondents before the Court of Civil Judge Senior
Division claiming that they were entitled for heirship
certificate. The petitioner was made a non-applicant
in the said proceeding on the basis that she also
claimed to be wife of the deceased Ewan Tayade. The
aforesaid Court took into consideration the
contentions raised by the rival parties and by order
dated 28/07/2016 found that the application
deserved to be rejected for the reason that proper
details of movable and immovable properties were
not furnished and proper Court fees was not paid as
per the aforesaid Regulation, apart from other
reasons.
3. Aggrieved by the said order, the
respondents herein filed an appeal under the
aforesaid Regulation read with Order 43 Rule 1 of the
Civil Procedure Code claiming that the Court below
had erred in rejecting the application for heirship
certificate to be issued in favour of the respondents.
While granting the said direction, the District Court
proceeded to consider the material on record and
gave findings as regards the rival claims pertaining to
status of the petitioner, as well as respondent No.1.
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4. Aggrieved by the said order, the present
writ petition was filed, wherein notice was issued and
the respondents entered appearance through counsel.
5. Mr.Joharapurkar, learned counsel for the
petitioner, placed reliance on Clause (4) of the
aforesaid Regulation to emphasize that when a
question of complicated or difficult nature arises
before a judge in proceedings initiated under the said
Regulation concerning issuance of heirship certificate,
such proceedings are required to be suspended, until
the question is tried in Regular Civil Suit instituted by
one of the parties.
6. Reliance is placed on the case of Vijaya
Balasaheb Deshmukh vs. Sandhya Ravindra
Deshmukh 2015(5) All M.R. 809. On this basis it is
submitted that the impugned order deserves to be set
aside.
7. On the other hand Mr. Gadkari, learned
counsel appearing for the respondent No.4 submitted
that this Court may pass appropriate orders in terms
of the law laid down as regards the manner in which
application for grant of heirship certificate has to be
decided under the said Regulation.
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8. The respondent Nos.1 to 3 filed reply, but
none has appeared on their behalf when the petition
is called out for hearing. In the reply, respondent
Nos.1 to 3 have sought to defend the impugned order
passed by the District Court, contending that based
on the material on record the certificate was correctly
granted in favour of respondent Nos.1 to 3.
9. This Court has considered the aforesaid
Regulation and also material placed on record. A
perusal of the documents placed on record and the
stands of the rival parties would show that there were
indeed complicated and difficult questions that arose
in the matter in the light of the fact that the petitioner
as well as respondent No.1 both claimed to be
widows of the deceased.
10. Such a complicated question arising in
the matter ought to have prompted the Court of Civil
Judge to resort to Clause (4) of the Regulation to
suspend the proceedings until either party
approached the competent Civil Court by way of
Regular Civil Suit for trial and decision of such
complicated question. Instead, the Civil Judge
proceeded to decide the matter and rejected the
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proceeding initiated by the respondents on technical
issues.
11. In the appeal filed by the respondent
before the District Court, again the aforesaid aspect of
the matter was completely ignored and the District
Court proceeded to consider the matter on merits. In
the process, the District Court in the impugned order
has rendered findings on the validity of the claim of
the petitioner that there was divorce between
respondent No.1 and the deceased. Such question
was complicated in nature and it ought to have been
left to the Civil Court to decide. This is clear from the
aforesaid judgment in the case of Vijaya Balasaheb
Deshmukh (supra) relied upon by the learned counsel
for the petitioner, wherein it has been specifically
held that when a complicated question of facts or law
arises, the parties ought to be directed to file Regular
Civil Suit for fulfledged trial instead of granting
heirship certificate under the said Regulation. The
said decision of this Court is based on the language of
Clause (4) of the aforesaid Regulation.
12. In view of the above, this Court is of the
opinion that orders passed by both the Courts below
are rendered unsustainable, for the reason that when
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such complicated question arose in the matter, in the
light of the stands taken by the rival parties, the
proceeding initiated by the respondents ought to have
been suspended till the either of the parties instituted
a Regular Civil Suit before competent Court for
decision on the complicated question that arose in the
matter.
13. Hence, the judgment and order dated
14/02/2019, passed by the District Court, as well as
judgment and order dated 28/07/2016 passed by the
Court of Civil Judge Senior Division, Akola are
quashed and set aside. The proceeding initiated by
the respondents bearing M.J.C.No.329 of 2015 is
remanded to the Court of Civil Judge Senior Division,
Akola.
14. It is further directed that the proceedings
shall remain suspended till either of the parties,
approach competent Civil Court by filing Regular
Civil Suit for resolution the complicated question of
facts and law that arises in the matter.
15. The Writ Petition Stands disposed of.
JUDGE
Digitally signed byRAVIKANT
CHANDRAKANT KOLHE
Signing Date:17.06.2022
KOLHE
14:45
