Case Note & Summary
The petitioner, Ganpati Vinayak Achwal, aged 85, applied for an heirship certificate under Rule 2 of the Bombay Regulation Act, 1827, in respect of his father and two uncles who died as bachelors, leaving immovable properties at Ambernath, Thane. The father died on 25 September 1968, and the uncles died on 20 November 1985 and 13 July 1990. The application was filed through the petitioner's son as Constituted Attorney. After issuing citations and public notices, no objections were received. However, the Civil Judge Senior Division, Kalyan, rejected the application on two grounds: (1) bar of limitation under Article 137 of the Limitation Act, 1963, and (2) physical incapacity of the petitioner to manage the properties. Aggrieved, the petitioner invoked the High Court's jurisdiction under Article 227 of the Constitution. The High Court examined the purpose of the Bombay Regulation Act, 1827, which is to provide formal recognition of heirs. The Court held that the right to apply for an heirship certificate is a continuous right, not subject to limitation, as the certificate merely recognizes existing heirs. The Court also held that the physical incapacity of the applicant is irrelevant because the certificate does not involve management of property. The High Court allowed the writ petition, set aside the trial court's order, and directed the trial court to issue the heirship certificate within four weeks.
Headnote
A) Limitation Act - Article 137 - Applicability to Heirship Certificate - The application for heirship certificate under Rule 2 of the Bombay Regulation Act, 1827 is not subject to the period of limitation prescribed under Article 137 of the Limitation Act, 1963, as the right to apply is a continuous right and the certificate is merely a formal recognition of heirs. (Paras 5-7) B) Bombay Regulation Act, 1827 - Rule 2 - Heirship Certificate - Physical Incapacity - The physical incapacity of the applicant to manage properties is not a relevant consideration for grant of heirship certificate, as the certificate only recognizes the heir and does not confer management rights. (Paras 8-9)
Issue of Consideration
Whether the application for heirship certificate under Rule 2 of the Bombay Regulation Act, 1827 is barred by limitation under Article 137 of the Limitation Act, 1963, and whether the physical incapacity of the petitioner is a valid ground for rejection of such application.
Final Decision
The High Court allowed the writ petition, set aside the order of the Civil Judge Senior Division, Kalyan dated 29.07.2013, and directed the trial court to issue the heirship certificate within four weeks from the date of receipt of the order.
Law Points
- Heirship certificate application not subject to limitation under Article 137 of Limitation Act
- 1963
- Physical incapacity of applicant irrelevant for grant of heirship certificate
- Heirship certificate is formal recognition of heirs
- Right to apply for heirship certificate is continuous right
