1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3899 OF 2009 Smt. Rukmini Kaluram Nangade and others .. Petitioners Versus Smt. Kumudini Kaluram Nangade .. Respondent Shri H. P.ghadigaonkar for the petitioners Shri Nitin Jamdar,for the Respondent CORAM: MRS. MRIDULA BHATKAR, J. RESERVED FOR ORDER ON : 13th July, 2009 ORDER PRONOUNCED ON : 18th July, 2009. J U D G E M E N T 1. Heard the Learned Counsels for the parties. By consent of the parties, taken up for final hearing. Factual Matrix: 2. The Petitioners have filed this petition against the order dated 23.2.2009 passed by the 9th Joint Civil Judge, Senior Division, Pune, rejecting the application for stay (Exh.15 in R.C.S.No.1571/2008) of Suit under Section 10 of the Civil Procedure Code, filed by the petitioner. 3. The petitioner No.1 and the respondent, both have claimed to be the legally wedded wives of one Late Shri Kaluram Nangade who has died on 1.9.1995. The petitioner No.1 had filed a Regular Civil Suit No. 469/96 for injunction and recovery of the property against the Respondent. 2 In the said suit, the issue was framed that whether the plaintiff No.1 has proved that she is legally wedded wife of Lt. Kaluram Nangade and the said issue was decided in negative and the suit was dismissed on 22.4.2006. The petitioner has filed Misc. Civil Appeal bearing No. 2570/2007 challenging the said Order which has been admitted by this Court and the matter is pending before this Court. In the said Appeal, this Court has directed both the parties to maintain status quo in respect of the properties of deceased Kaluram Nangade. The Will of the deceased Kaluram Nangade dated 15.11.1979 is challenged by both the parties in the appeal. Deceased Kaluram was holding a liquor licence authorising him to conduct liquor shop at Ghorpade Peth, Pune and he was running the liquor shop. The respondent has applied for the said licence to the Collector who has demanded heirship certificate. So, the respondent had made an application for heirship certificate before the Court of Civil Judge, Senior Division, Pune. In the said matter, the petitioner appeared and contested the matter and so the said application was treated as Regular Civil Suit being RCS 1571/2008. The petitioner, in the said suit, made an application under Section 10 of Civil Procedure Code. However, it was rejected by the learned Judge, holding that in respect of the liquor licence, no issue is pending in the Appeal before the High Court. The said order is challenged in this petition. Submissions: 4. Learned Counsel appearing for the petitioner has submitted 3 that in the Suit bearing no. 469/1996, the issue whether the petitioner – Rukhmini is the legally wedded wife of the Lt. Shri Kaluram Nangade was framed and it was decided in the negative and the appeal against the said order filed by the petitioner came to be admitted and the matter is pending before this Court. The learned Counsel has argued that while deciding the application for heirship certificate, the learned Civil Judge, Sr. Division has to consider the same issue which is agitated in the appeal and, therefore, the issue involved in the appeal and in the suit are materially and substantially one and the same and as such, the application under Section 10 of the Civil Procedure Code ought to have been allowed by the learned Civil Judge. 5. The Respondent, while opposing this petition, relied on the ruling in the case of Aloysius Manuel D souza & ors. Vs. Mary Kamala ’ William Manual D souza and others, reported in 2005 (6) Bom. C. R. 56 ’ , in which, the Learned Division Bench of this Court has held that- The grant of heirship certificate does not establish the “ right of such party in the property of the deceased by itself. In this view of the matter, the rights of the appellants, if any, in the property of the deceased are not taken away by grant of heirship certificate to the respondent no.1. On the other hand, Clause 7 further makes it clear that such heirship certificate holder is accountable to all persons having an interest in the property for the acts so done by him or her. ” 6. It was contended by the learned counsel appearing for the respondent that the application for heirship certificate is still pending and even if, the Certificate is granted in favour of the respondent- Kumudini, that 4 will authorise the respondent to run the business and the rights of the petitioner in the said property cannot be determined. Consideration : 7. The petitioner has lost the Suit No. 469 of 1995 and her appeal is admitted by the Division Bench of this Court. In the said appeal, whether the petitioner is legally wedded wife of Lt. Kaluram Nangade is the issue. The Petitioner has challenged the issuance of heirship certificate to the respondent on the ground that the respondent is not a legally wedded wife of late Kaluram Nangade. Thus, the issue that who is the legally wedded wife of Lt. Kaluraam Nangade is apparently one and the same in the appeal so also in the enquiry of succession certificate. While granting succession certificate, the Court has to consider prima facie better title of the rival claimants. The grant of heirship certificate does not take away the right of the other party to establish his or her title and right in the property of the deceased. So, the submissions of the learned Counsel for the respondent are accepted on this point. 8. In the present case, the marital status of the petitioner and the respondent is intricate question of fact and law, which is a direct issue and will be decided finally in the appeal preferred by the petitioner. The proceedings of heirship certificate are of such nature which permits the Court to grant heirship certificate on the basis of prima facie preferential title of the party. Further, there is no bar in issuing joint heirship certificate also. Therefore, though the parties in both the matters are same and the 5 issue in both the matters appears to be the same yet it is not substantially and materially same and the decision given in the enquriy of the heirship certificate does not give finality to the issue i.e. Who is the legally wedded wife of Lt. Kaluram Nangade. Therefore, the matter does not come under the purview of Section 10 of the Civil procedure Code. 9. It is necessary to mention that during the enquriy of the heirship certificate as contemplated under Section 373 of the Indian Succession Act, if the learned Trial Court finds it difficult to decide the prima facie preferential title to issue heirship certificate and decides to keep the matter pending till the decision of the appeal, the order of rejection of the application under Section 10 of the Civil Procedure Code should not be construed that it has taken away the discretion and power of the Trial Court to adjourn the matter or keep the matter pending on the ground of pendancy of the appeal. Therefore, there is no need to interfere with the order of the Trial Court. The petition is dismissed with no order as to costs. ( MRIDULA BHATKAR, J.) jpc/-