IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO. 7309 OF 2009
Shri Ashok Diga Deng
Vs
The State of Maharashtra.
CORAM : B.R. GAVAI J.
DATE : 21ST NOVEMBER, 2009.
1] Rule. Rule made returnable forthwith. Heard by consent.
By way of present petition, the petitioner challenges the order dated 23rd October, 2009 passed by the learned Civil Judge (Junior Division) Tuljapur, thereby directing the petitioners to pay court fee as per Schedule I, Article 12, of the Bombay Court Fees Act, 1959. The petitioners claim to be the legal heirs of one Digambar s/o. Sadashiv Deng, who died on 24th September, 1999. The petitioners have applied for grant of heirship certificate as legal heirs of deceased Digambar. The petitioners are the sons, wife, daughter in law of deceased Digambar.
2] It is contended I the application that the petitioners required the heirship certificate for submitting it in various Government Departments. On the said application, the order impugned herein is passed. In the said order, the learned Judge has observed that he has made an enquiry and in his enquiry, he has come to know that the present petitioners are entitled to more than Rs. 2 Lakhs each and, therefore, they are required to pay the court fees , as per Schedule I of Article 12 of the Bombay Court Fees Act.
3] Perusal of the Bombay Regulation VIII/1827 would reveal that under Rule 1, a legal heir of a person deceased is competent to represent him without a recognition from the court. Rule 2 of the said regulation would reveal that, however, if a heir, executor or administrator is desirous of having his right formally recognized by the court, the Judge on an application, shall issue a proclamation inviting all persons who dispute the right of the applicant to appear in the court within 1 month from the date of the proclamation and submit their objection . The said provision require that after considering the objections, if any, the Judge shall grant a certificate of heirship, executorship or administration. However, perusal of the 2nd part of the Rule 7, would reveal that the certificate does not confer any right to the property but only indicates the person, who, for the time being is in the legal management thereof. It further provides that granting such certificate does not finally determine nor injure the rights of any person.
4] In so far as Article 12 of Schedule I of the Bombay Court Fees Act, which has been referred by the learned Judge in the order, is concerned, it could be seen that the fees prescribed for certificate under the said regulation are same as the fees leviable in case of a probate, on the amount or value of the property in respect of which the certificate is asked for. Article 12 prescribes the percentage of fees to be payable in the matter of a probate or a will or a letter of administration with or without seal, depending upon the value of the property.
5] However, perusal of the present application would reveal that the applicants are not seeking a heirship certificate under the said regulation with respect to any property. It would be seen that the fees would be payable only if a heirship certificate is sought to be obtained, is in respect of same property.
. I do not understand the propriety of the learned Judge in making an Enquiry from the sources not disclosed in the order, regarding the list of persons, who are entitled to get compensation in village Nandgaon. The only requirement under the regulation prior to issuing a proclamation is to invite and to consider the objections, if any, received within 30 days from the date of the proclamation. Had anyone objected after the proclamation so issued, in that event only, I find that any enquiry in the matter would have been necessary. If the application filed by the petitioners was uncontested and if the petitioners had produced the documents in support of their claim that they; were heirs of deceased Digambar, I do not understand the propriety of holding any other enquiry.
6] As already discussed hereinabove, the second part of Rule 7, of the said regulations clearly provides that merely because such a certificate is issued, the person in whose favour such a certificate is granted does not get any right or title to any property. In that view of the matter, I find that the impugned order is not sustainable in law.
7] Rule is , therefore, made absolute in terms of prayer clause (B). C.C.expedited.
[B.R. GAVAI, J.]