Case Note & Summary
The petitioners, Parvatabai and Suresh More, filed a writ petition challenging an order dated 18/06/2018 passed by the 11th Joint Civil Judge Senior Division, Nagpur, in M.J.C. No.192 of 2017. The trial court had rejected the petitioners' application (Exhibit 18) seeking dismissal of proceedings initiated by the respondent, Surekha Surjuse, for grant of a legal heirship certificate under Bombay Regulation VIII of 1827. The background facts reveal that the petitioners had earlier filed an application under the same Regulation for a legal heirship certificate in respect of deceased Parasram Fakira More, which was granted by the Court of Civil Judge, Junior Division, Nagpur on 13/06/2017. Subsequently, on 02/03/2017, the respondent filed a separate application under the same Regulation, also seeking a legal heirship certificate for the same deceased, specifically describing certain properties and seeking a declaration that she was the legal heir. The petitioners were made parties as non-applicants in that proceeding. The petitioners then filed an application before the trial court seeking dismissal of the respondent's proceedings, arguing that since a certificate had already been granted in their favour, the second application was not maintainable. The trial court rejected this application, leading to the present writ petition. The legal issue centered on whether a second application for a legal heirship certificate under the Regulation is maintainable when a prior application for the same deceased has already been granted. The petitioners contended that the principle of res judicata under Section 11 of the Code of Civil Procedure, 1908, barred the second application. The respondent argued that proceedings under the Regulation are summary in nature and not suits, and therefore res judicata does not apply. The court analyzed the nature of proceedings under Bombay Regulation VIII of 1827, noting that it is a summary proceeding for determination of heirs and does not create a bar on successive applications. The court held that the principle of res judicata is not applicable to such proceedings, as they are not adjudicatory in the same manner as suits. The court found that the trial court had correctly rejected the petitioners' application for dismissal. Consequently, the writ petition was dismissed, and the trial court was directed to proceed with the respondent's application in accordance with law.
Headnote
A) Civil Procedure - Res Judicata - Successive Applications for Legal Heirship Certificate - Bombay Regulation VIII of 1827 - The court considered whether a second application for legal heirship certificate under the Regulation is barred by res judicata when a prior application for the same deceased has been granted. The court held that the principle of res judicata does not apply to proceedings under the Regulation as they are not suits but summary proceedings for determination of heirs. The court found that the respondent's application was maintainable and the trial court correctly rejected the petitioners' application for dismissal. (Paras 2-18)
Issue of Consideration
Whether a second application for grant of legal heirship certificate under Bombay Regulation VIII of 1827 is maintainable when a prior application for the same deceased person has already been granted in favour of other claimants.
Final Decision
Writ petition dismissed. Order dated 18/06/2018 passed by the trial court is upheld. The trial court is directed to proceed with M.J.C. No.192 of 2017 in accordance with law.
Law Points
- Bombay Regulation VIII of 1827
- legal heirship certificate
- res judicata
- maintainability of successive applications
- Civil Procedure Code
- 1908
- Section 11
