1 wp-10367.10.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10367 OF 2010 Dnyanoba Dagadu Harpale : Petitioner versus Maya Baban Harpale and anr. : Respondents. Mr. P K Hushing for the Petitioner. Mr. Vishwajeet V Mohite for Respondent Nos.1 and 2. CORAM : R M SAVANT, J. DATE : 25th November 2011 ORAL JUDGMENT 1 Rule, with the consent of the parties made returnable forthwith and heard. 2 The writ jurisdiction of this Court is invoked against the judgment and order dated 09/08/2010 passed by the 6th Joint Civil Judge, Senior Division by which order the application filed by the Respondents herein for grant of Heirship Certificate came to be allowed. 3 The Respondent No.1 herein claims to be the legally wedded wife of one Baban Dagadu Harpale. The Respondent No.1, aggrieved by the fact that after the death of said Baban Harpale, the lands were entered in the name of his brother Dnyoba Dagadu Harpale i.e. the Petitioner herein, filed a suit being Regular Civil Suit No.4184 of 2000 for a declaration that she is the legally wedded wife of the said Baban Harpale and claiming partition of the 2 wp-10367.10.sxw properties on the said basis. In the said suit, the parties went to trial and ultimately the said suit came to be dismissed on 18/7/2003. 4 After dismissal of the suit filed by the Respondents, the Respondents herein filed an application for grant of Heirship Certificate in respect of the said Baban Harpale. The same was filed under the Bombay Regulation VIII of 1827. In so far as the said Regulation is concerned, the relevant Regulations are Regulations 4 and 5 which read thus :- “(4) First – If, before the expiration of the time, any objection is made to the right of the person claiming as heir, executor or administrator, the Judge, on a day to be fixed (of which at least eight days’ previous notice shall be given to the parties), shall summarily investigate the grounds of the objections on the one hand, and of the right claimed on the other, examining such witnesses or other evidence as may be adduced by the parties, and either grant or refuse a certificate, as the circumstances of the case may required. Second-- But if from the evidence adduced, it appears that the question at issue between the parties is of a complicated or difficult nature, the Judge may suspend proceedings in the application for a certificate until the question has been tried by a regular suit instituted by one of the parties. (5) Whenever an executor is formally recognised, under the rule contained in section 4, the authenticity of the will , if any, by which he is appointed, shall be proved, and the certificate of executorship shall be endorsed thereon.” The said application filed by the Respondents was opposed by the Petitioner as well as the other heirs of Dagadu Khandu Harpale by filing their reply. In the 3 wp-10367.10.sxw said reply they had specifically averred that the suit filed by the Respondents, who are the applicants in the application made under the said Regulation, was dismissed by the Civil Court. A copy of the judgment in the said suit was also annexed to the reply. As can be seen, in terms of IInd part of Regulation 4 that if it appears to the Court that the question at issue between the parties is of a complicated or difficult nature, the Judge may suspend the proceedings in the application for a certificate until the question has been tried by a regular suit instituted by one of the parties. In the instant case, as indicated above, the suit had already been filed by the Respondents, and in the said suit, the Respondent No.1 had sought a declaration that she is the legally wedded wife of the said Baban Harpale. Though the said fact was brought to the notice of the learned Judge trying the said application, the said fact has not been even adverted to by the learned Judge. 5 In the context of the IInd part of Regulation 4, the learned Judge ought to have considered the said aspect viz. that when the applicant had already filed a suit and which suit has been dismissed, whether it was proper for him to exercise the jurisdiction under the said Act in the matter of grant of Heirship Certificate. The least that was expected was that the learned Judge ought to have stayed his hands till the Appeal filed by the applicants was taken up for hearing. The fact that the filing of the suit and its dismissal has not been considered by the learned Judge in my view vitiates the impugned order. In my view, therefore, the impugned order would have to be quashed and set aside 4 wp-10367.10.sxw and is accordingly quashed and set aside and the matter would have to be relegated back to the concerned learned Judge for a de-novo consideration. On such remand, the learned Judge to hear and decide the matter on the touchstone of the dismissal of the suit filed by the Applicants by the Civil Court. In the event the learned Judge is of the opinion that he can proceed with the application filed by the Respondents for Heirship Certificate, he would have to record reasons for the same. On remand the parties to appear before the concerned court i.e. the learned 6th Joint, Civil Judge, Senior Division, Pune on 15th December 2011, the concerned court, thereafter to fix the schedule as per its convenience. 6 The above Writ Petition is accordingly allowed. Rule is accordingly made absolute to the aforesaid extent, with parties to bear their respective costs. [R.M.SAVANT, J]