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No Compulsion For Any Legal Heir Of Deceased Predecessor To Apply For Heirship Certificate: Bombay HC [Read Order]

Nitish Kashyap
12 Nov 2017 2:19 PM GMT
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The Bombay High Court recently allowed a miscellaneous petition that sought revocation of a Legal Heirship Certificate granted under Section 2 of the Bombay Regulation VIII of 1827 to respondents.

Justice SC Gupte heard the petition filed by one Kusum Chandrakant Shankardas and her two daughters. The petitioner is the widow of Chandrakant Shankardas, a retired Army officer who died intestate (without making a will) in August 2013.

Case Background

In 1969, Chandrakant Shankardas married Rajeshri, the petitioner’s sister. They had two daughters together, but in 1982, they started living separately.

It was the case of the petitioners that there was a customary divorce between the deceased and Respondent No.1 (Rajeshri) in 1983, after which they started living separately, and on May 25, 1984, the deceased married the petitioner as per Hindu rites and customs.

The couple had two daughters, one was born in 1986 and the second daughter was born in 1993. The four were living in a tenement that was being redeveloped by the Slum Rehabilitation Authority (SRA). After the death of Chandrakant in 2013, the petitioner started receiving Rs 14,000 from the developer, which continued till March 2016.

In March 2016, the petitioners filed an application under RTI and learnt that the respondents (Rajeshri and her two daughters) had obtained a legal heirship certificate through a miscellaneous application in 2015.

On the basis of the said certificate, the collector had added the name of Rajeshri in the redevelopment project. When the petitioners raised an objection before the SRA, it was rejected.

Thus, the petitioners filed the present petition for revocation of the heirship certificate.

Judgment

The court noted that in the miscellaneous petition filed by the respondents, there was no mention of the desertion on part of Rajeshri or the customary divorce between her and the deceased. Instead, the petition filed by the respondents claimed that they were the only heirs and next of kin of the deceased.

Before granting the heirship certificate, the court dispensed of with the mandatory requirement of a proclamation.

The court noted that in order to seek revocation of a heirship certificate granted under Section 2 of Bombay Regulation VIII of 1827, the applicant for revocation must make out three ingredients; firstly, it needs to be shown that there is a false suggestion or concealment of a material particular in the application for heirship certificate; secondly, such suggestion or concealment must be shown to have been made knowingly, thirdly, there should be no other consideration affecting the maintainability of the application for revocation.

The court also noted that since both Kusum and Rajeshri were sisters, it could not be accepted that the respondent’s claim of being the only heirs to the deceased was bona fide.

It was observed that the only objection raised by the respondents against the petitioners was that they did not apply for any succession or heirship certificate, and, that they encroached upon and forcibly occupied some other properties of the deceased.

“There is no compulsion for any legal heir of a deceased predecessor to either apply for a succession certificate or an heirship certificate. In fact, as required by Section 2 of Bombay Regulation VIII of 1982, it is only when the heir is desirous of having his right formally recognized by a Court that he needs to apply to the Judge for a heirship certificate. Forcible possession or occupation of the property of the deceased is, by its very nature, neither here nor there insofar as the present revocation application is concerned,” the court said.

Thus, the court concluded that the petitioners had succeeded in making out a clear case under Section 390 read with Section 383 (b) of the Indian Succession Act, 1925. The heirship certificate issued in the respondent’s favour was revoked and liberty was granted to all parties to apply for joint heirship in future.

Read the Order Here

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