Case Note & Summary
The petitioners, who are the widow and children of the deceased Babarao Dhawangale, challenged the orders of the 3rd Joint Civil Judge, SD, Nagpur dated 4.3.2013 and 30.4.2013. The respondent Kusum had filed Misc. Application No. 140 of 2011 under the Bombay Regulation VIII of 1827 for a legal heirship certificate claiming to be the legally wedded wife of the deceased. The petitioners, who were not initially made parties, filed objections upon learning of the application through a proclamation. The trial court rejected the petitioners' applications for recall of the respondent for cross-examination and for permission to lead evidence, and subsequently allowed the respondent's application and issued the certificate. The High Court held that the objectors had a right to cross-examine the applicant and lead evidence in support of their objections. The impugned orders were set aside and the matter was remanded to the trial court for fresh consideration after affording full opportunity to both parties. The court also noted that under clause 4 of the Regulation, if the question is complicated, the judge may suspend proceedings and direct the parties to file a regular suit.
Headnote
A) Civil Procedure - Legal Heirship Certificate - Bombay Regulation VIII of 1827, Clause 4 - Natural Justice - The trial court rejected the petitioners' applications for recall of the respondent for cross-examination and for permission to lead evidence, and thereafter granted the legal heirship certificate ex-parte - Held that the objectors who had filed objections were entitled to cross-examine the applicant and lead evidence in support of their objections; the impugned orders are set aside and the matter is remanded for fresh consideration after affording full opportunity to both parties (Paras 1-6).
Issue of Consideration
Whether the trial court's rejection of the petitioners' applications for recall of the respondent for cross-examination and for permission to lead evidence, followed by grant of legal heirship certificate, is sustainable in law.
Final Decision
The impugned orders dated 4.3.2013 and 30.4.2013 are set aside. The matter is remanded to the trial court for fresh consideration after affording full opportunity to both parties to cross-examine and lead evidence. Rule made absolute accordingly.
Law Points
- Natural justice
- right to cross-examine
- right to lead evidence
- summary investigation under Bombay Regulation VIII of 1827
- clause 4 of Bombay Regulation VIII of 1827
- Section 215 of Indian Succession Act
- 1925
Case Details
2014 LawText (BOM) (07) 161
Writ Petition No. 90 of 2014
Mr C. V. Jagdale for petitioner, Mr S. D. Khati for respondent
Pramila wd/o Babarao Dhawangale and others
Kusum wd/o Babarao Dhawangale
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Nature of Litigation
Writ petition challenging orders of the trial court rejecting applications for recall and permission to lead evidence, and granting legal heirship certificate.
Remedy Sought
Petitioners sought setting aside of orders dated 4.3.2013 and 30.4.2013 and remand for fresh consideration.
Filing Reason
The trial court rejected petitioners' applications for recall of respondent for cross-examination and for permission to lead evidence, and then granted legal heirship certificate to respondent.
Previous Decisions
Trial court order dated 4.3.2013 rejecting recall and evidence applications; order dated 30.4.2013 granting legal heirship certificate.
Issues
Whether the trial court erred in rejecting the petitioners' application for recall of the respondent for cross-examination?
Whether the trial court erred in rejecting the petitioners' application for permission to lead evidence?
Whether the grant of legal heirship certificate without affording opportunity to objectors is sustainable?
Submissions/Arguments
Petitioners argued that they were entitled to cross-examine the respondent and lead evidence in support of their objections.
Respondent argued that the trial court's orders were correct and the certificate was rightly granted.
Ratio Decidendi
Objectors who have filed objections to an application for legal heirship certificate under Bombay Regulation VIII of 1827 have a right to cross-examine the applicant and lead evidence in support of their objections. The trial court must conduct a summary investigation under clause 4 of the Regulation and if the question is complicated, may suspend proceedings and direct a regular suit.
Judgment Excerpts
The objectors who had filed objections were entitled to cross-examine the applicant and lead evidence in support of their objections.
Under clause 4 of the Bombay Regulation VIII of 1827, if any objection is made, the Judge shall summarily investigate the grounds of objections and either grant or refuse a certificate.
Procedural History
Respondent filed Misc. Application No. 140 of 2011 for legal heirship certificate. Petitioners filed objections. Trial court rejected petitioners' applications for recall and evidence on 4.3.2013 and granted certificate on 30.4.2013. Petitioners filed writ petition challenging both orders.
Acts & Sections
- Bombay Regulation VIII of 1827: Clause 4
- Indian Succession Act, 1925: Section 215
