1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 154 OF 2010 Sk. Maherubi w/o. Sk. Aziz and others. .. Petitioners Versus Smt. Nanda w/o. Aziz Shaikh and another. .. Respondents. --- Mr. R.S. Sarvadnya, Advocate for petitioner. Mr. D.K. Kulkarni, Advocate for the respondent No.1. CORAM : R.M. BORDE, J. DATE : 22nd April, 2010. ORAL ORDER :- 1] An application tendered by the petitioner, requesting the trial court for disposing of the application filed by the respondent herein for revocation of the certificate granted in her favour , being not 2 maintainable, has been turned down by the trial court dealing with the issue and said interlocutory order passed in MARJI no. 607/2003 below exhibit, 19 is subjected to challenge in this petition. 2] The petitioner herein tendered an application for grant of succession certificate in his favour which was initially considered favorably and a order to that effect came to be passed by the trial court, directing issuance of heirship certificate in favour of the petitioner. The order passed earlier was challenged by the respondent by filing an application, seeking revocation of the order in view of Regulation 7 of the Bombay Regulations read with Section 383 of the Indian Succession Act, 1975. The respondent claims that she is the legally wedded wife of the deceased Shaikh Aziz and is entitled to be declared as his successor. The application was entertained by the trial court and an enquiry was initiated. It is the contention of the petitioner herein that when the issue in respect of legality of the marriage is raised, it is not open for the court to deal with the application for grant of Succession Certificate to determine the issue as the issue involves complicated questions of fact and needs to be determined by the civil court. 2] The counsel for the petitioner has invited my attention to the judgment of the Chennai High Court in the matter of “P. Meenambal Vs. R. Rajeshwari and others”. Reported in (1997)2 MLJ 510. The counsel 3 further contends that the proceedings under the Succession Act are essentially of summary character and the question as raised in the instant matter shall have to be determined by the civil court. According to the petitioner, the procedure laid down by Section 373 of the Act contemplates a summary enquiry into the matter. While holding summary enquiry, the court has to determine as to who is entitled to the certificate. 3] The counsel appearing for the respondents contends that the application seeking revocation of the certificate granted earlier is untenable in view of the Regulation 7 of the Regulations as well as Section 383 of the Indian Succession Act, 1925. According to the respondents, the learned Judge dealing with the issue shall have to enquire into the matter within the four corners of law and conduct an enquiry as permissible under Section 383 of the Indian Succession Act. It is the contention of the respondents that the petitioner has merely an apprehension that the court is likely to overstep the limits as envisaged in the section, and decide the questions which are not capable of being determined during conduct of summary enquiry. 4] At this interlocutory stage of the proceedings, no interference is called for. I have perused the application as well as the impugned order passed by the trial court and considered the 4 submissions advances by the respective counsel. Sub-Section (3) of Section 373 of the Indian Succession Act, prescribe as under :- “373(3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.” An application for revocation of the certificate is entertainable in view of Section 383 and according to the counsel for the respondents, the application tendered by him falls under sub-section (b) of Section 383, which reads thus : “383(b) that the certificate was obtained fraudulently by the making of a false suggestion , or by the concealment from the Court of something material to the case.” 5] It is true that the enquiry before the learned Judge in respect of issuance of succession certificate is summary in character and decision rendered by the court in the summary enquiry is also liable to be challenged before the civil court and the issue can be determined by the 5 competent civil court. An order passed under section 373 is appellable under Section 384 of the Act. It is merely an apprehension on the part of the petitioner that the learned Judge dealing with the issue is likely to overstep its limits and decide larger questions. The learned Judge, dealing with the issue shall have to determine same in accordance with the provisions of Section 373 and more particularly, sub-section (3) thereof. If at all the petitioner feels aggrieved by the order, if any, he can avail the remedy under Section 284. Apart from this aspect the larger issue in respect of legal status, can be determined by the civil court and either of the parties may have liberty to approach the appropriate forum and seek appropriate declaration. At this interlocutory stage of the proceedings, in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India, no interference is called for. The writ petition is summarily dismissed. [R.M. BORDE,J.] Grt/-