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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 134 OF 2011
1. Shobhabai w/o Prakash Telure,
Age now 35 years, Occ: Household,
R/o. Bhim nagar, Kannad,
Tq. Kannad, Dist. Aurangabad.
2. Siddharth s/o Prakash Telure,
Age now 30 years, Occ: Education,
R/o. Bhim nagar, Kannad,
3.
Tq. Kannad Dist. Aurangabad.
Aamarpali d/o Prakash Telure,
Age now 18 years, Occ: Education,
R/o. Bhim nagar, Kannad,
Tq. Kannad Dist. Aurangabad. ...APPLICANTS
VERSUS
1. The State of Maharashtra,
Through Collector, Aurangabad.
2. Smt. Mandanbai w/o Prakash Telure,
Age now 40 years, Occ: Household,
R/o. Bhim nagar, Kannad,
Tq. Kannad Dist. Aurangabad.
3. Ku. Ujwala d/o Prakash Telure,
Age now 16 years, Occ: Education,
R/o. Bhim nagar, Kannad,
Tq. Kannad Dist. Aurangabad.
4. Ku. Sharda d/o Prakash Telure,
Age now 14 years, Occ: Education,
R/o. Bhim nagar, Kannad,
Tq. Kannad Dist. Aurangabad.
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5. Ku. Bharti d/o Prakash Telure,
Age now 11 years, Occ: Education,
R/o. Bhim nagar, Kannad,
Tq. Kannad Dist. Aurangabad.
6. Vishal s/o Prakash Telure,
Age now 11 years, Occ: Education,
R/o. Bhim nagar, Kannad,
Tq. Kannad Dist. Aurangabad.
(Respondent Nos. 3 to 6 under
Guardianship of Resp.No.2.) ...RESPONDENTS
...
Mr. H.M. Salve, Advocate for applicants.
Mr. D.V. Tele, AGP for respondent No.1.
Mr.K.U. Nikam,Advocate for respondent Nos. 2 to 6.
...
CORAM :S.S. SHINDE, J.
RESERVED ON :28-09-2011
PRONOUNCED ON :04-10-2011
JUDGMENT :
. Rule. Rule made returnable forthwith.
With the consent of learned Counsel for the
parties, the matter is taken up for final hearing.
2. This Civil Revision Application is filed
challenging the judgment and order dated
04-03-2011 in Regular Civil Appeal No. 119 of 2007
passed by the District Judge-5 Aurangabad. The
revision applicants herein filed M.A.R.J.I.
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No. 188 of 2006 in the Court of the Civil Judge,
Junior Division, Kannad. The facts stated in the
M.A.R.J.I. No.188 of 2006 are reproduced herein
below for ready reference.
“1. That, the Prakash s/o Shahadu Telure
(hereinafter referred the deceased) died
on dt.23-10-2005 at village Kannad,Tq.Kannad Dist. Aurangabad.
2.
That the ordinary and permanent
residence of deceased at the time of deathwas at Bhimnagar, Kannad Tq. Kannad Dist.
Aurangabad.
3. That the deceased had left the following
members of the family :-
Sr. Name of the legal heirs. Relationship with
No. the deceased.
Wife
1 Shobhabai w/o Prakash Telure
Son
2 Siddharth s/o Prakash Telure
3 Aamrapali d/o Prakash Telure daughter
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4. That, the petitioners No. 1 to 3 are
the legal heirs of the deceased, besides
them, there is no other successors legal
representatives to the deceased. As such
the petitioners are entitled for heirship
certificate as prayed. The dseceased was
governed by the Hindu Law.
5. That the deceased has left no will,
no application has been made for grant of
letters of administration of the
deceased.
6. That, there is no impediment U/sec.
370 or other provisions of the Indian
Succession Act and any other enactment to
grant of the certificate or to the
validity thereof when granted.
7. That, the deceased was in service in
the Revenue Office, Kannad under Deputy
Collector, Sillod and working as a
Talathi. He was died on the duty on dt.
23.10.2005. The petitioner NO. 1 would
have been chances to get service on
compassionate basis from the concerned
department and to get official all
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benefits.
8. That, the petitioners when approached
to the concerned Authority of department
and requested to them to give benefits of
compassionate basis, that time the
concerned Authority has directed to the
petitioner to obtain the legal heirship
certificate from court for the above
purpose.
9.
igThat, the legal heirship
certificate may kindly be issued in the
name of the above petitioners.”
3. The Civil Judge, Junior Division, Kannad
passed the following order.
” Petitioner moved this application for
heirship certificate.
A notice was published in local daily
newspaper ‘Tarun Bharat’ calling anybodyto raise objection if any within one
month of the date of publication of the
notice. In response of publication of
said notice objector Mandanbai Prakash::: Downloaded on – 09/06/2013 17:48:45 :::
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objection at Exh. 14. Thus, thisposition is become contentious.
Learned advocate S.K. Shejwal argued
that the objector appeared beyond the
period mentioned in the notice and onthis point he submitted for discarding
the objection. However, I found no
substance in such argument, becausethough the objector appeared beyond the
period mentioned in the notice, yet in
the interest of justice an opportunitymust be given to objector to contest the
application.
Since the petition is become
contentious it needs to be sent toHon’ble Civil Judge (S.D.) Aurangabad.
Hence in view of Chapter XIV para 304 &305 of Civil Manual, the petition be
transferred to Hon’ble Civil Judge,
Senior Division, Aurangabad.”
4. On 23-03-2007 the Civil Judge, Senior
Division, Aurangabad after considering the oral
and documentary evidence, allowed the application
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filed by the revision applicants and issued
certificate.
5. Aggrieved by the said judgment and order
dated 23-03-2007 respondent No. 2 herein Mandanbai
filed Regular Civil Appeal No. 119 of 2007 before
the Court of the District Judge-5 Aurangabad.
. The District Judge-5, Aurangabad allowed
the appeal filed by Mandanbai and quashed and set
aside the order dated 23-03-2007 holding that
there is no satisfactory evidence about the
ceremonies of marriages and there is no evidence
to show whose marriage took place first.
6. Being aggrieved by the judgment and order
passed by the appellate Court, this Civil Revision
Application is filed by the revision applicants.
. Learned Counsel appearing for the
revision applicants submits that, revision
applicant No.1 Shobhabai w/o Prakash Telure is
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legally wedded wife of deceased Prakash s/o
Shahalu Telure. Revision applicant No.2 Siddharth,
revision applicant No. 3 Amarpali are son and
daughter of deceased Prakash. Deceased Prakash
was working as Talathi in the office of Deputy
Collector, Sillod, who died on 23-10-2005. It is
submitted that, after death of Prakash, the
revision applicants approached to authority with a
request to provide employment on compassionate
ground. The authority then asked the revision
applicants to bring legal heirs certificate for
getting the benefit. Therefore, revision
applicants filed application before the Civil
Judge, Junior Division, Kannad under Bombay
Regulation VIII of 1827. The Civil Judge, Junior
Division, Kannad on receiving application from the
revision applicants issued public proclamation
inviting objection if any.
7. Respondent No. 2 herein Mandanbai after
knowing, after expiry of period filed objection
denying that the revision applicants are legal
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heirs of deceased Prakash and claimed that, she
herself and her children are legal heirs of
deceased Prakash. The Civil Judge, Junior
Division, Kannad on receiving this objection from
the respondents herein, transferred the
application to the Court of the Civil Judge,
Senior Division, Aurangabad.
8. It is further submitted that, the Civil
Judge, Senior Division, Aurangabad framed issues.
In support of the claim of the revision
applicants, revision applicant NO.1 Shobhabai w/o
Prakash examined herself as P.W. 1 and in her
support examined P.W. 2 Haribhau, P.W. 3 Bhimrao
and produced the documentary evidence. These
witnesses asserted that Mandanbai is wife of Sheku
s/o Chinda. Respondent No. 1 Mandanbai examined
herself as P.W. 1. Both the sides produced
documentary evidence in support of their
affidavits. Copy of affidavit and cross of P.W. 2
Haribhau is placed on record. Learned Counsel
invited my attention to the affidavit and cross of
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P.W. 1 Shobhabai. He further invited my attention
to copy of affidavit and cross of P.W. 2 Haribhau.
Learned Counsel further invited my attention to
affidavit of P.W. 3 Bhimrao which is placed on
record alongwith Civil Revision Application.
. Learned Counsel for the revision
applicants further invited my attention to the
affidavit in cross of D.W. 1 Mandanbai. Learned
Counsel for the revision applicants would submit
that, after hearing both the parties, the Civil
Judge, Senior Division, Aurangabad has allowed
Misc. Application No. 188 of 2006 thereby
dismissing the objection raised by the respondents
and legal heirs certificate is rightly issued in
favour of the revision applicants. Learned
Counsel further invited my attention to the
reasons recorded by the Civil Judge, Senior
Division, Aurangabad while granting legal heirs
certificate in favour of the revision applicants.
9. Learned Counsel for the revision
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applicants submits that, the appellate Court has
exceeded the jurisdiction and erred in quashing
and setting aside the judgment and order of the
Civil Judge, Senior Division, Aurangabad for want
of evidence of ceremony of marriage and dates of
marriages. It is submitted that, the Civil Judge,
Senior Division, Aurangabad investigated the
question in dispute in summary proceedings where
for proving marriage standard of proof need not be
so high as required in regular civil proceedings.
Learned Counsel further submitted that, without
evidence of ceremony of marriage, there are
factors i.e. acceptance of society as husband and
wife, continuous cohabitation of parties as
husband and wife, openly living as husband and
wife and acceptance of their children by society,
which provides sufficient and conclusive inference
of the marriage. It is further submitted that,
there is sufficient evidence to prove the
marriage. P.W. 1 Shobhabai has stated on oath on
14-05-1989 as per Budha Rites her marriage took
place with deceased Prakash at village Wasadi. In
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her support, she examined P.W. 2 Haribhau, P.W. 3
Bhimrao who are real elder brother of deceased
Prakash. These witnesses have also stated the same
fact. They have no interest to accept a lady who
is not married with their brother Prakash. Their
version in the cross examination had not been
shaken, they being members of family are competent
to state on the facts of marriage of Prakash.
.
It is further submitted that, documentary
evidence in support of marriage of revision
applicant NO.1 with deceased Prakash was produced
on record. Copy of invitation (marriage) card was
produced on record. After the marriage, the
information was recorded in the office of
Grampanchayat Wasadi on 16-05-1989. Exhibit-27
is certificate issued by Grampanchayat Wasadi to
that effect. Deceased Prakash was in service in
the year 1992 and after his marriage, he submitted
nominee form for getting benefits in future to his
heirs. In the nomination form, deceased Prakash
has shown Shobhabai w/o Prakash and Siddharth s/o
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Prakash as nominees. Learned Counsel submits that,
the statement of Prakash amounts to an admission
which is material aspect that the marriage of
Shobhabai with deceased Prakash was
solemnised/performed. It is further submitted
that, respondent Mandanbai failed to prove her
marriage with deceased Prakash. She failed to
establish when her marriage took place. The
District Judge failed to consider that Mandabai is
wife of deceased Sheku s/o Chinda Lokhande, who
was working as labourer in Kannad Sakhar Karkhana.
Mandanbai had received benefits of her husband
Sheku. Though Mandanbai denied the said fact, the
document produced on record rebutted her denial.
It is clear that, voters list is at Exh. 61,
wherein name of Mandanbai is shown at Sr. No. 578
alongwith name of Prakash and Shoba at Serial No.
576 and 577 at House No. 18. It is further
submitted that, the District Judge failed to
consider other valuable evidence. Exh. 30 is
death certificate of Sheku Chinda who died on
22-07-1989 and reported on 26-07-1989 in
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Grampanchayat. Exh. 33 is a copy of voters list
for the year 1988 wherein Sheku s/o Chindaji is
shown as No. 659 and Mandanbai wife of Sheku is at
Sr. No. 660. The documents shown Mandanbai since
before 1988 was wife of deceased Sheku s/o Chinda.
Exh. 62 is a copy showing that Mandanbai had
received the benefit of deceased Sheku s/o Chinda.
It is not the case that above documents are
fabricated.
10. It is further submitted that, Mandanbai
after death of Prakash on the basis of affidavit
dated 01-11-2006 of her brother Anna Sakharam
Bagul obtained marriage certificate from
Grampanchahyat Sawkheda showing her marriage took
place on 19-04-1988 with Prakash. She filed
objection on 12-01-2006, affidavit on 10-10-2006,
cross examined on 19-12-2006, however, there is no
reference of date of marriage in her cross
examination. Therefore, it is clear that, the
marriage certificate produced by Mandanbai is a
created document and the appellate Court erred in
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giving importance to the said document. Learned
Counsel further submitted that, the alleged
documents which are produced on record by
Mandanbai are in the year 2006. However,
documents produced by revision applicant No. 1 are
from year 1988, 1989 onwards. Learned Counsel
further submits that, the District Judge is not
correct in holding that, from the assertion
between the parties the matter is complicated and
its nature is aggravated due to insufficient
direct evidence. It is further submitted that, in
the present case, the Civil Judge, Senior Division
from the evidence on record was satisfied that,
Shobhabai is legally married wife of deceased
Prakash and Siddharth and Amarpali are son and
daughter of deceased Prakash. It is submitted
that, sufficient evidence was produced on record
to show that Shobhabai married Prakash on
14-05-1989. Siddharth and Amarpali are begotten
from Prakash. It is further submitted that, the
revision applicants herein in support of their
case, examined revision applicant No.1 at Exh. 24.
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She also examined Haribhau Shahadu Telure and
Bhimrao s/o Shahadu Telure, who are the real
brothers of deceased Prakash. The learned Counsel
for the revision applicants herein invited my
attention to the number of documents which were
produced on record before Court below which are as
follows :
(1) certified copy of the death extract of
deceased Prakash at Exh. 27 (2) certified copy of
nomination filed by deceased Prakash in respect of
Provident Fund at Exh. 28, (3) Photo copy of
letter issued by Tahasildar Kannad at Exh. 29, (4)
death extract of Sheku Chindhya Lokhande at Exh.
30, (5) the certificate issued by Municipal
Council Kannad in respect of opponent No.1 at Exh.
31, (6) the certificate issued by Kannad Sahakari
Sakhar Karkhana Ltd., dated 06-02-2006 at Exh. 32,
(7) voters list for the year 1988 of village
Kannad at Exh. 33, (8) death extract of Prakash
Telure at Exh. 34, (9) certificate issued by
Kannad Municipal Council in respect of the
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revision applicants at Exh. 35, (10) the
invitation card of Jaldan Vidhi in respect of
deceased at Exh. 49, (11) the attested copy of
monthly payment in respect of Sheku Lokhande at
Exh. 62 and (12) death extract of Sheku Lokhande
at Exh. 70.
11. Therefore, learned Counsel appearing for
the revision applicants relying upon the grounds
taken in the revision application, annexures
thereto, documents placed on record and reasons
recorded by the Civil Judge, Senior Division,
Aurangabad while granting certificate in favour of
the revision applicants would submit that, this
Civil Revision Application deserves to be allowed.
In the alternate, he submits that, in case this
Court is not convinced to allow the Civil Revision
Application, in that case, appointment/service of
Siddharth may be protected till the suit filed by
Mandanbai is finally disposed of.
12. On the other hand, learned Counsel
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appearing for the respondents submitted that, the
revision applicants herein are the original
applicants who had filed the application
M.A.R.J.I. No. 188 of 2006 for grant of heirship
certificate, claiming to be the legal heirs of one
deceased Prakash Shahadu Telure, r/o Kannad, Dist.
Aurangabad, who was serving as Talathi. Said
application came to be allowed by the learned
Civil Judge, Senior Division, Aurangabad. It is
further submitted that, aggrieved thereby, the
respondents herein had preferred R.C.A. No. 119 of
2007 before the District Judge, Aurangabad, which
came to be allowed and the judgment and order of
the Civil Judge, Senior Division, Aurangabad
granting heirship certificate to the revision
applicants has been set aside. It is further
submitted that, present respondents are the
original objectors before the Court of the first
instance and the appellants before the First
Appellate Court.
. It is further submitted that, original
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application M.A.R.J.I. No. 188 of 2006 was filed
under the provision of Rule 4 of the Bombay
Regulation VIII of 1827. The said Regulation VIII
of 1827 clearly provides that, if somebody wants
recognition in respect of the right to any movable
or immovable property of any deceased person, he
may apply for such recognition in the form of
Certificate of heirship. If there is no any such
right to any movable or immovable property, no
such certificate can be granted. It is further
submitted that, the revision applicants have not
claimed the heirship certificate in respect of any
property, either movable or immovable owned by the
deceased Prakash and as such, the application
legally was not tenable and ought to have been
rejected. It is further submitted that, the
parties to the proceedings have led oral and
documentary evidence and as the inquiry was of
summary nature, the documents have been exhibited
without having been proved as per the provisions
of the Indian Evidence Act. The documents produced
and relied upon by the revision applicants herein
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at Exhbit-28, 29, 31, 32, 35, 49, 62 and the
marriage card filed at page NO.46 of paper book
herein, have not been duly proved through proper
witnesses.
13. Learned Counsel for the respondents
further submitted that, the oral evidence led by
the revision applicants is also not trustworthy.
The deposition of applicant No.1 Shobhabai (P.W.1)
is at page No. 27 of the paper book. She at the
end of paragraph NO.1 of her examination in chief,
has specifically contended that, she started
residing with her deceased husband at Bhimnagar,
Kannad and is still residing there. However, in
her cross examination, in paragraph No.9 at page
No. 33 of the paper book, she has stated that she
cannot tell the names of the adjoining residents
of her house at Bhimnagar, Kannad. It is further
submitted that, P.W. 1 has admitted that, her
children are residing at village Wasadi, Tq.
Kannad with her parents. It is further submitted
that, P.W. 2 Haribbhau Telure also has admitted in
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his cross examination at Page NO. 37 of paper book
that, Shobhabai resides at Wasadi, Tq. Kannad
Dist. Aurangabad.
. It is further submitted that, original
applicants have also examined another witness
namely Bhimrao Telure (P.W.3) in support of their
case. However, though he was cross examined, his
cross examination is missing from the record and
proceedings of the case and this fact was revealed
during the hearing of the First Appeal and
therefore, his testimony is of no avail to the
revision applicants. It is also submitted that,
there are other certain important admissions on
record which go in favour of the present
respondents. P.W. 2 Haribhau in his cross
examination has clearly admitted that, respondent
No. 6 herein namely Vishal is the son of deceased
Prakah Telore begotten from respondent No.1
Mandanbai and his name was mentioned in the
invitation card that was circulated for the
Jaladan Vidhi (the ceremony of the last rites of
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deceased Prakash), alongwith the names other
relatives of said Prakash. It is also submitted
that, photocopy of one such card was also produced
by the revision applicants on record wherein the
name of said Vishal Prakash Telure was missing.
14. Learned Counsel for the respondents
further submitted that, the revision applicants
have produced the Voters list of Kannad
Constituency for the year 1998 at Exhibit-33 which
is at page 54 of paper book, to show that,
respondent No. 1 herein was the wife of one Sheku
Chintaji and names of said Sheku and one Mandanbai
are appearing at Sr. No. 659 and 660 in the said
list and they are shown to be aged 35 and 30 years
respectively. It is further submitted that, in
the same list at Sr. No. 676 the name of deceased
Prakash Shahadu also appears and his age is shown
as 21 years and it is very much hard to digest
that, a man can have or has any sexual
relationship with a woman about 10 years elder
than him. The revision applicants are trying to
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take disadvantage of the similarity in the name of
respondent No.1 with the name of wife of said
Sheku Chintaji. It is further submitted that, the
respondents herein have also produced on record
before the Court of instance the number of
documents which have presumptive value and they
are school leaving certificates of the children at
Exhibit Nos. 38, 39 and 40, the election identity
card issued by the Government at Exhibit-36,
voters list at Exhibit-47 and 61 and these all are
the documents having presumptive value which has
not been rebutted by the revision applicants.
Learned Counsel further submitted that, first
appellate Court after making the scrutiny of the
abovesaid oral and documentary evidence has
rightly come to the conclusion that, there is a
complicated question at issue between the parties
that of a complicated nature and can be resolved
by a regular suit only and cannot be decided
judiciously in a summary proceeding. The first
Appellate Court, therefore, has rightly directed
the parties to get the dispute settled by filing
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the regular suit in respect of their status. The
learned Counsel further submitted that,
considering the above mentioned facts and position
of law, Civil Revision Application may kindly be
rejected.
15. I have given due consideration to the
rival submissions. Since this is a Civil Revision
Application, unless case is made out within scope
of Section 115 of the Code of Civil Procedure,
Civil Revision Application cannot be entertained.
While exercising revisional jurisdiction, this
Court has to keep in mind the scope of Section 115
of the Code of Civil Procedure.
. In case of M.L. Sethi Vs. Shri. R.P.
Kapoor, reported in A.I.R. 1972 SC 2379, the
Supreme Court has observed that even gross errors
of facts and law cannot be gone into in revisional
jurisdiction. Yet, in another judgment in case of
DLF Housing & Constructions Co. (P) Ltd. vs.
Saroopsing and others, reported in AIR 1971 SC
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2324, the Supreme Court held that while exercising
revisional jurisdiction under Section 115, it is
not competent to the High Court to correct errors
of fact however gross or even errors of law unless
the errors have relation to the jurisdiction of
the Court to try the dispute itself. Yet in
another judgment in the case of Managing Director
(MIG) Hindustan Aeronautics Ltd. Balanagar
Hyderabad and another vs. Ajit Prasad Tarway,
Manager (Purchase and Stores) Hindustan
Aeroinautics Ltd., Balanagar, Hyderabad reported
in AIR 1973 SC 76, the Honourable Supreme Court
held that revisional Court can only see whether
the Court below had jurisdiction. If it had
jurisdiction to entertain the proceedings, the
High Court cannot interfere. In the case of
Harishankar and others vs. Rao Giridhari Lal
Chowdhary, reported in AIR 1963 SC 698, the
Supreme Court has distinguished between right of
appeal and right of revision and held that, scope
of revisional jurisdiction is limited. Yet in
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another judgment in the case of Faijulbee Hajeel &
others vs. Yadali Amir Shaikh Ansari, reported in
1984(2) Bom.C.R. 253, the Division Bench of this
Court held that the decision on question of facts
is not amenable to revisional jurisdiction of the
High Court. In the judgment in case of Sanjay
Kumar Pandey and others vs. Gulabhar Sheikh and
others reported in AIR 2004 SC 3354 : [2004(5) ALL
MR (S.C.) 542], the Supreme Court held that the
revisional court cannot refer to part of the
evidence and reverse the findings of the fact. In
paragraphs 4 and 5, the Cort has clarified that
the revisional would be exercised in exceptional
circumstances and normally the party should file
independent suit to establish title.
16. In the present case, the relevant
provisions which are applicable are Chapter I of
the Bombay Regulations, which reads thus :
“Rules for the Recognition of Heirs,
Executors and Administrators when there is::: Downloaded on – 09/06/2013 17:48:46 :::
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1. Legal heir, etc. of person deceased
competent to represent him without
recognition from court :
Whenever a person dies leaving
property, whether movable or immovable,
the heir or executor, or legal
administrator, may assume the management,
or sue for the recovery, of the property,
in conformity with the law or usage
applicable to the disposal of the said
property, without making any previous
application to the Court to be formally
recognized.
2. First. But if such recognition
requested, proclamation will be issued :
But if an heir, executor or
administrator is desirous of having his
right formally recognized by the Court,
for the purpose of rendering it more safe
for persons in possession of, or indebted
to, the estate to acknowledge and deal
with him, the Judge, on application, shall
issue a proclamation, in the form
contained in Appendix A, inviting all
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persons who dispute the right of the
applicant to appear in the Court within
one month from the date of the
proclamation and enter their objections,
and declaring that, if no sufficient
objection is offered, the Judge will
proceed to receive proof of the right of
the applicant, if satisfied, grant him a
certificate of heirship, executorship, or
administratorship.
Second. Publication of proclamation :
( Rep. Act. XII of 1873.)
3. If no objection appears, recognition
to be granted :
If, at the expiration of the time
mentioned in the proclamation no
sufficient objection has been made, the
Court shall forthwith receive such proof
as may be offered of the right of the
person making the claim, and if satisfied,
shall grant a certificate in the form
contained in Appendix B, declaring him the
recognized heir, executor or administrator
of the deceased.
4. First : Objection appearing to the
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examined and recognition given or refused
accordingly :
If, before the expiration of the
time, any objection is made to the right
of the person claiming as heir, executor
or administrator, the Judge, on a day to
be fixed (of which is at least eight days
previous notice shall be given to the
parties), shall summarily investigate the
grounds of the objections on the one hand,
and of the right claimed on the other,
examining such witnesses or other evidence
as may be adduced by the parties, and
either grant or refuse a certificate, as
the circumstances of the case may require.
Second : If question is complicated or
difficult, matter to be left for
adjudication :
But if from the evidence adduced, it
appears that the question at issue between
the parties is of a complicated or
difficult nature, the Judge may suspend
proceedings in the application for
certificate until the question has been
tried by a regular suit instituted by one
of the parties.”
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. Regulation 8 is important which reads
thus :
“8. Refusal of a recognizition no
judgment against claim of applicant :
The refusal of a certificate by the
Judge shall not finally determine the
rights of the person whose application is
refused, but it shall still be competent
to him to institute a suit for the
purpose of establishing his claim.”
17. The appellate Court has considered
extensively submissions of the parties and also
has taken a note of various documents produced on
record by the parties. The revision applicants
herein filed/placed reliance on the following
documents:
(1) certified copy of the death extract of
deceased Prakash at Exh. 27 (2) certified copy of
nomination filed by deceased Prakash in respect of
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Provident Fund at Exh. 28, (3) Photo copy of
letter issued by Tahasildar Kannad at Exh. 29, (4)
death extract of Sheku Chindhya Lokhande at Exh.
30, (5) the certificate issued by Municipal
Council Kannad in respect of opponent No.1 at Exh.
31, (6) the certificate issued by Kannad Sahakari
Sakhar Karkhana Ltd., dated 06-02-2006 at Exh. 32,
(7) voters list for the year 1988 of village
Kannad at Exh. 33, (8) death extract of Prakash
Telure at Exh. 34, (9) certificate issued by
Kannad Municipal Council in respect of the
revision applicants at Exh. 35, (10) the
invitation card of Jaldan Vidhi in respect of
deceased at Exh. 49, (11) the attested copy of
monthly payment in respect of Sheku Lokhande at
Exh. 62 and (12) death extract of Sheku Lokhande
at Exh. 70.
18. Learned Counsel appearing for the
respondents herein placed reliance/relied upon the
following documents in support of their case.
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Respondent No. 1 Mandanbai examined
herself at Exhibit-52. She produced on record
(1) certified copy of school leaving register in
respect of opponent No. 4 Sharda at Exh. 38,
opponent No.5 at Exh. 39, opponent No. 6 Vishal at
Exh.40, (2) election identity card of opponent
No.1 at Exh.36, (3) the election identity card of
deceased Prakash at Exh. 37, (4) Voters list at
Exh. 47, (5) marriage registered certificate of
Mandanbai with Prakash at Exh. 60, (6) Voters list
dated 01-01-2006 at Exh. 61 and (7) affidavit of
Anna Sakharam Bagul at Exh. 67.
19. The appellate Court has considered the
case of the revision applicants that, opponent
No. 2 Mandanbai is widow of Sheku who died on
02-07-1989 and further, Mandanbai has taken
benefit due to his death from Kannad Sakhar
Karkhana. The appellate Court observed that,
though such contention is raised by the revision
applicants, no any officer from the said sugar
factory was examined so as to prove that,
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Mandanbai is widow of one deceased Sheku and she
has obtained benefit from Kannad Sakhar Karkhana.
Said aspect is considered in para-12 of the
appellate Court’s judgment.
20. In para-13 the appellate Court has
observed that, the respondents herein did not
produce any document to show that opponent No. 3
Ujwala is the daughter of deceased Prakash. The
appellate Court in para-14 has considered the
documents produced by the respondents herein i.e.
extract of school register of Sharda, Bharti and
Vishal. It is observed that, the name of Prakash
is appearing as their father. The birth date of
Sharda, Bharti and Vishal is also recorded in the
said paragraph. Other documents in respect of
claim of the revision applicant No.1 that, she is
legally wedded wife of Prakash is also considered
in the said paragraph. The appellate Court has
extensively considered the documents produced by
both the sides. The appellate Court in Para-15 has
considered the provisions of Bombay Regulation
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Act, 1827.
. In para-16 the appellate Court has
recorded that, the lower Court without considering
the status of opponent Nos.3 and 6 has rejected
their prayer though from the evidence through
cross examination of witness No. 2 on behalf of
the revision applicant NO.1 clearly and
conclusively proved that opponent No. 5 is son of
deceased Prakash, whether they are legitimate,
illegitimate, have right to inherit the property
or have no right to inherit the property have not
been considered.
21. The appellate Court has considered the
provision of Section 16 of the Hindu Marriage Act
extensively in para-16 of the impugned judgment
and reached to the conclusion that, if the
judgment and order under challenge is kept as it
is, it certainly will affect adversely forever
against opponent Nos. 3 to 6. Therefore, the
appellate Court recorded the findingS that,
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considering all facts and circumstances involved
in the case, the petitioners and opponents have
failed to prove requisites so as to record
positive findings on their respective assertions.
Therefore, the appellate Court granted liberty to
the parties to approach before the regular Court
by filing a suit to get determine their status,
rights and interest.
22.
I have given anxious consideration to the
points raised by the learned Counsel appearing for
the respective parties. In revisional
jurisdiction, unless their is some jurisdictional
error is committed by the Court below or perverse
findings are recorded by the Court below, in that
case only interference is warranted.
23. On going through the rival contentions
and documents which are placed on record, I am of
the view that, the revision applicant No.1
Shobhabai has not convincingly proved her marriage
with Prakash. The reasons recorded by the
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appellate Court are inconsonance with the evidence
brought on record. This Court while exercising
revisional jurisdiction, should refrain from
discussing any document or evidence brought on
record since the appellate Court has granted
liberty to the parties to approach the competent
civil Court to get their rights and interest
adjudicated by leading evidence. Any comments on
the merits of the matter would prejudice the
interest of the parties. Therefore, any extensive
comments on the documents/evidence which is placed
on record are avoided.
. From careful perusal of the pleadings by
the parties, documents placed on record and
evidence scanned by the appellate Court, it will
have to be concluded that, neither Shobhabai nor
Mandanbai have placed sufficient evidence on
record or proved documents which would lead to
only inference that their marriage with Prakash is
legal one. In the given case, it may be also
necessary to find out whose marriage is first in
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time with Prakash. Therefore, unless appropriate
evidence is led by the parties and documents are
proved, in the facts and circumstances of this
case, it is not possible to accept the claim of
either Shobhabai or Mandanbai. In that view of
the matter, in my considered opinion, the findings
recorded by the appellate Court are in consonance
with the evidence brought on record.
24.
It is true that, when application is made
for heir certificate, in the first instance the
concerned Court has to exercise powers in a
summary manner and in a case where there no
serious dispute, such procedure adopted by the
Court and issuance of certificate may be
acceptable. However, in the facts and
circumstances of this case, when both the parties
are seriously canvassing their claim, in that
case, unless the competent civil Court records
the findings after appreciation of evidence and
after giving opportunity to the parties to prove
the documents, it is not possible to accept the
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claim of either of the parties. In that view of
the matter, in the facts of this case it will have
to be held that, the appellate Court did reach to
the correct conclusion. It is also not out of
place to mention, that merely placing on record
the marriage invitation card or certificate issued
by Grampanchayat or any other document without
proving the said, same is is not sufficient to
prove the claim. It is necessary that such
documents are required to be proved. In the facts
of this case, Shobhabai and Mandanbai have placed
number of documents on record and without proving
such documents, it is not possible to record
definite conclusion by adopting summary procedure.
In that view of the matter, the view taken by the
appellate Court needs no interference in
revisional jurisdiction.
. During course of arguments, learned
Counsel appearing for the revision applicants
submitted that, revision applicant No.2 has got
appointment on compassionate ground on the basis
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of certificate already issued and therefore, in
case Mandanbai files suit and till such suit is
decided, interest of revision applicant No.2 may
be protected. Of course, this is an alternate
submission, in case revision fails.
25. As discussed hereinabove, I am not
inclined to allow this Civil Revision Application.
However, since revision applicant No.2 has got
employment on compassionate ground by producing
certificate issued on the direction of the Court,
in my opinion, ends of justice would meet if the
appointment of revision applicant No.2 is
protected for further four months.
26. It is made clear that, this Court has not
expressed any opinion about who should approach
the civil Court. Since the appellate Court has
given liberty to both the sides, it is for the
parties to approach the competent civil Court and
get their rights and interest adjudicated and
decided. However, it is made clear that, the
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appointment of revision applicant No. 2 Siddharth
should not be disturbed for four months from
today.
27. The Civil Revision Application stands
dismissed. Rule discharged. However, it is made
clear that, the appointment of revision applicant
No. 2 Siddharath is protected for four months from
today.
. Any observations hereinabove are made
only for the purpose of deciding this Civil
Revision Application and would not come in the way
of parties, while prosecuting the suits before the
competent Court.
sd/-
[S.S. SHINDE, J.]
sut/SEP11
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