Case Note & Summary
The case involves a dispute over a Legal Heirship Certificate granted under Section 2 of the Bombay Regulation VIII of 1827. The petitioners, claiming to be the second wife and daughters of the deceased Chandrakant Shantaram Shankardas, sought revocation of the certificate granted to the respondents, who are the first wife and her daughters. The deceased died intestate on 14 August 2013. The petitioners alleged that the first wife deserted the deceased in 1982, a customary divorce occurred in 1983, and the deceased married the first petitioner in 1984. Two daughters were born from this union. The respondents contended that no divorce took place and the second marriage was invalid. The court examined the evidence, noting that the petitioners failed to provide any documentary proof of divorce or valid marriage. The court held that the burden of proof lies on the petitioners to establish the customary divorce and second marriage, which they did not discharge. The court found that the respondents, being the legally wedded wife and daughters, were entitled to the certificate. The petition was dismissed with no order as to costs.
Headnote
A) Succession Law - Legal Heirship Certificate - Revocation - Bombay Regulation VIII of 1827, Section 2 - Petition for revocation of Legal Heirship Certificate granted to first wife and her daughters - Petitioners claimed to be second wife and daughters, alleging customary divorce and subsequent marriage - Court held that burden to prove customary divorce and second marriage lies on petitioners - Petitioners failed to discharge burden - No evidence of customary divorce or valid second marriage - Certificate rightly granted to respondents - Petition dismissed (Paras 1-10).
Issue of Consideration
Whether the petitioners have made out a case for revocation of the Legal Heirship Certificate granted to the respondents under Section 2 of the Bombay Regulation VIII of 1827.
Final Decision
The Misc. Petition is dismissed. Notice of Motion No.57 of 2017 does not survive and is disposed of. No order as to costs.
Law Points
- Burden of proof
- Customary divorce
- Validity of second marriage
- Legal heirship certificate
- Bombay Regulation VIII of 1827
- Section 2
Case Details
2017 LawText (BOM) (11) 77
MISC. PETITION NO.32 OF 2017 WITH NOTICE OF MOTION NO.57 OF 2017
Mr.Aseem Naphade a/w.Mr.A.P. Singh, Advocate for the Petitioners/ Applicants. Ms.Rohini Dandekar, Advocate for Respondents.
Kusum Chandrakant Shankardas & Ors.
Rajeshri Chandrakant Shankardas & Ors.
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Nature of Litigation
Petition for revocation of a Legal Heirship Certificate granted under Section 2 of the Bombay Regulation VIII of 1827.
Remedy Sought
Revocation of the Legal Heirship Certificate granted to the respondents in Misc. Petition No.160 of 2015.
Filing Reason
Petitioners claim to be the widow and daughters of the deceased and assert that the certificate was wrongly granted to the respondents.
Previous Decisions
Legal Heirship Certificate was granted to the respondents in Misc. Petition No.160 of 2015.
Issues
Whether the petitioners have proved a customary divorce between the deceased and respondent no.1?
Whether the marriage between the deceased and petitioner no.1 is valid?
Whether the petitioners are entitled to revocation of the Legal Heirship Certificate?
Submissions/Arguments
Petitioners argued that respondent no.1 deserted the deceased in 1982, a customary divorce took place in 1983, and the deceased married petitioner no.1 in 1984, with respondent no.1's consent.
Respondents contended that no divorce occurred, the second marriage was invalid, and they are the only legal heirs.
Ratio Decidendi
The burden of proof lies on the petitioners to establish the customary divorce and the validity of the second marriage. The petitioners failed to discharge this burden, and thus the Legal Heirship Certificate granted to the respondents is upheld.
Judgment Excerpts
This Misc. Petition seeks revocation of a Legal Heirship Certificate granted under Section 2 of the Bombay Regulation VIII of 1827, in favour of the respondents herein.
The facts of the present case may be briefly noted as follows: In or about 1969, the marriage of respondent no.1 and the deceased was solemnized at Malvan.
It is the case of the petitioners that in the year 1982, respondent no.1 deserted the deceased, ever since when the deceased and respondent no.1 were living separately.
It is claimed that eventually, in or about 1983, there was a customary divorce between the deceased and respondent no.1.
It is the case of the petitioners that on 25th May, 1984, the deceased married petitioner no.1 as per Hindu rites and ceremonies.
On 10th November, 1986 and 7th August, 1993, petitioner nos.2 and 3 were, respectively, born from the wedlock between the deceased and petitioner no.1.
Procedural History
The respondents obtained a Legal Heirship Certificate in Misc. Petition No.160 of 2015. The petitioners filed Misc. Petition No.32 of 2017 seeking revocation of that certificate, along with Notice of Motion No.57 of 2017. The court heard the matter and dismissed the petition on 1 November 2017.
Acts & Sections
- Bombay Regulation VIII of 1827: Section 2
