Vijayabai vs Chaya And Ors

Heard.

Rule. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel for the parties.

By this writ petition, the petitioner has challenged order dated 11/03/2019 passed by the Court of Civil Judge, Junior Division, Chikhali, District

Buldhana (herein after referred to as “Court belowâ€) in Succession Case No.1 of 2018, whereby application filed on her behalf for being

transposed as an objector in the proceedings, stood rejected.

One Mahesh Yuvraj Rupareliya expired on 25/04/2017. The present petition concerns the petitioner and the respondents herein raising their

competing claims for being issued a legal heirship certificate under the Bombay Regulation VIII of 1827 (hereinafter referred as “Regulationâ€). It

is undisputed that the petitioner is the mother of the deceased Mahesh and the respondents are the widow and children. The said deceased was a

resident of Chikhali and he had a licence in his name for running a restaurant and bar. The respondents herein filed an application on 19/01/2018

before the aforesaid Court under the provisions of the said Regulation for grant of legal heirship certificate. The non-applicant in the said application

filed on behalf of the respondents was shown as nil. On 20/02/2018, the petitioner filed an objection in the said application, seeking dismissal of the

same on the ground that the applicants could not have moved such an application behind the back of the petitioner, who is the mother of the said

deceased Mahesh. The said objection was opposed on behalf of the respondents. By order dated 18/09/2018, the Court allowed the application,

specifically observing that the objection raised by the objector (petitioner herein) seems to be just and proper. Yet, the Court came to the conclusion

that even if the petitioner had prayed for rejection of the application filed by the respondents, in the facts and circumstances of the case, it would be

just and proper to direct the respondents to add the petitioner as one of the applicants in the original application for grant of legal heirship certificate

instead of dismissing the application.

Accordingly, the petitioner was added as a co-applicant along with the respondents herein for grant of legal heirship certificate.

The dispute did not end at this stage, because during the pendency of the objection filed by the petitioner, on 18/04/2018, the respondents had moved

an application for amendment of the original application for grant of legal heirship certificate. It is in this application for amendment that for the first

time, the respondents claimed that a Will dated 15/09/2012 had been executed by deceased Mahesh, whereby he had bequeathed his right, title and

interests exclusively in favour of the respondents herein. It was during the pendency of this application for amendment that the Court below had

passed the order dated 18/09/2018, directing the petitioner to be added as a co-applicant along with the respondents.

On 20/10/2018, the said application for amendment stood allowed, as a consequence of which paras 3-A and 3-B stood added to the original

application and the prayer stood specifically amended to state that the legal heirship certificate be granted only to the respondents herein as

beneficiaries under the said Will.

Faced with this situation, the petitioner moved an application seeking consequential amendment of the original objection as the amendment granted

in the application completely prevented the petitioner from raising any claim for issuance of legal heirship certificate as a co-applicant with the

respondents herein. This application was marked as Exhibit-22 and by order dated 04/02/2019, the same was rejected by the Court below by a cryptic

order.

It is in this backdrop that the petitioner was constrained to move the application for transposition so that she could be arrayed as an objector in the

proceedings. This application was marked as Exhibit-23. The petitioner stated that she desired to object to the application in its amended form and

therefore, it was necessary to transpose her as an objector. This was also in the backdrop of the application for amendment being rejected on the

ground that the original objection itself had been disposed of and that in the absence of any objection on record, the amendment application could not

have been granted. The petitioner sought an opportunity to raise her grievance with regard to the pleadings introduced by way of amendment by the

respondents herein.

By the impugned order dated 11/03/2019, the Court below rejected the said application for transposition, primarily on the ground that the nature of

the proceedings under the aforesaid Regulation are summary in nature and that in any event the rights of contesting parties would not reach finality

and they would be subject to proceedings that may be initiated before the competent Civil Court.

The learned counsel appearing for the petitioner submitted that although the Court below was correct in making observations regarding the nature

of proceedings under the aforesaid Regulation and that the rights of parties would be subject to proceedings that may be initiated before the competent

Civil Court, it was submitted that the peculiar facts and circumstances of the present case required that in the interest of justice, the petitioner was

permitted to be transposed as an objector to be able to place objections on record, whereupon the Court below could exercise jurisdiction as per the

aforesaid Regulation. The learned counsel for the petitioner invited attention of this Court to the Preamble of the aforesaid Regulation and particularly

Clause 4 thereof to support the contentions raised on behalf of the petitioner.

On the other hand, the learned counsel appearing for the respondents, submitted that since the petitioner had failed to challenge order dated

18/09/2018, whereby she was added as a co-applicant with the respondents, it was too late in the day to claim transposition as an objector. It was

submitted that there was no objection existing on record and that in any case, the final order that may be passed by the Court below under the

aforesaid Regulation would only indicate as to who would assume management of the estate belonging to the deceased Mahesh and that if the

petitioner had any grievance with regard to the said Will Deed or any other aspect of the matter, she could certainly approach the competent Civil

Court. On this basis, it was submitted that the approach adopted by the Court below was justified.

Heard learned counsel for the rival parties and perused the material on record. The sequence of events in the present case does indicate that the

petitioner had raised a full-fledged objection to the application moved by the respondents under the provisions of the said Regulation. A perusal of the

objection raised on behalf of the petitioner shows that she specifically sought dismissal of the said application by contending that the respondents could

not have moved such an application behind the back of the petitioner, who was admittedly the mother of deceased Mahesh. The contentions raised on

behalf of the petitioner in the objection were accepted by the Court below, which is evident from order dated 18/09/2018 passed by the Court below.

Yet, the Court below thought it fit to add the petitioner as a co-applicant in the application moved by the respondents under the aforesaid Regulation,

instead of throwing out the application itself. At this point in time, the application before the Court under the provisions of the aforesaid Regulation, as

it stood, prayed for grant of legal heirship certificate in favour of the applicants. This clearly included the petitioner as a co-applicant, as a

consequence of the order dated 18/09/2018, passed by the Court.

The complication arose only when the Court below allowed the amendment application moved by the respondents by order dated 20/10/2018. A

perusal of the said order shows that it was cryptic in nature and surprisingly there was an observation made that no prejudice would be caused to any

one if the application was allowed. The effect of the amendment being allowed was obviously that the petitioner herein was completely left out from

claiming her right to claim legal heirship certificate even though she was arrayed as a co-applicant. An exclusive legal heirship certificate in favour of

only the respondents was sought by way of amendment by placing reliance upon purported Will Deed dated 15/09/2012, said to have been executed

by deceased Mahesh. It is significant that the respondents did not refer to the said purported Will Deed when they moved the application on

19/01/2018 under the said Regulation before the Court below. The application for amendment was filed on 18/04/2019, which was about two months

after the petitioner filed her objection before the Court below.

In this situation, when the petitioner realized that by way of amendment, she was sought to be kept out from raising a claim towards legal heirship

certificate, an application was moved for consequential amendment of the objection filed on her behalf. The said application was rejected only on the

ground that since no objection was on record, such an amendment could not be permitted. This demonstrates that when the Court below had itself

recognized the right of the petitioner for consideration of her claim even if along with the respondents as co-applicant, for issuance of legal heirship

certificate, the said opportunity of consideration of her right stood taken away from her when the amendment of the original application was permitted

by the subsequent order dated 28/10/2018 passed by the Court below.

In this situation, there was no alternative for the petitioner, but to file the application for transposition at Exhibit- 23. All that the petitioner desired

by moving this application was to be granted an opportunity to pursue her objection in view of the subsequent development of the original application

being amended. This shows that the contention raised on behalf of the respondents cannot be countenanced that since the petitioner did not challenge

the amendment of the original application, she could not claim her right to be transposed.

A perusal of the relevant provisions of the Regulation would show that the Preamble itself provides that it is in general desirable that heirs,

executors or legal administrators of persons deceased should, unless their right is disputed, be allowed to assume the management of the estate of the

deceased. The words “unless their right is disputedâ€​ are crucial, particularly in the peculiar facts and circumstances of the present case.

Clause 4 of the Regulation is also significant because it mandates that the Court shall summarily investigate the grounds of objection on the one

hand and the right of claimants on the other hand before issuing legal heirship certificate. The said clause further specifically mandates that if the

Court comes to a conclusion that the question at issue between the parties is of a complicated or difficult nature, the Court can suspend the

proceedings until the said question is put at rest by way of a regular suit instituted by one of the parties.

In the present case, the facts and circumstances are such that the respondents are seeking to deprive the petitioner, who is admittedly the mother

of the deceased Mahesh, to even raise a dispute in terms of the provisions of the aforesaid Regulation. All that the petitioner desires by way of being

transposed is to have an opportunity to dispute the claim made by the respondents on the basis of the said purported Will, in view of the amended

application now pending consideration before the Court below. There cannot be any dispute about the general propositions discussed by the Court

below in the impugned order that the proceedings under the said Regulation are necessarily summary in nature and that finality of rights of the

disputing parties would be achieved only after appropriate proceedings are instituted and culminate before the competent Civil Court. But, in the facts

and circumstances of the present case, the question that was required to be considered by the Court below was, as to whether the petitioner could be

deprived of her right to raise an objection to the exclusive right sought to be claimed by the respondents on the basis of the amended application. This

is particularly because, in the first place, while filing the original application, the respondents did not join the petitioner as a non-applicant and even

more significantly they did not even mention existence of the purported Will dated 15/09/2012, said to have been executed by deceased Mahesh in

their favour. Thus, in the facts and circumstances of the present case, this Court has come to the conclusion that from the very beginning the

respondents have been making attempts to deprive the petitioner of her basic right of even disputing the claims made by them insofar as grant of legal

heirship certificate is concerned. Attempts have been made to nip in the bud, the right of the petitioner to raise her claim.

Whether the Court below finally accepts the claim of the petitioner or not is a different matter, but she cannot be deprived of her right to raise

objection to the manner in which the respondents have sought relief from the Court below under the provisions of the said Regulation.

In view of the above, it is found that the impugned order is wholly unsustainable. Accordingly, the writ petition is allowed. The impugned order is

quashed and set aside. The application filed by the petitioner at Exhibit-23 is allowed in terms of the prayer made therein. Consequently, the

application pending before the Court below shall stand amended by transposing the petitioner as objector. The Court below shall now give an

opportunity to the petitioner to raise an objection having been transposed in terms of the prayer made by her in the application at Exhibit-23. The

petitioner shall raise such an objection within a period of four weeks from today. The Court below shall then proceed to decide the application and

objection as expeditiously as possible.

Rule is made absolute in the above terms. No costs.