Bombay High Court
Smt. Umabai Dattu Bhoir(Deceased) Thr. … vs Malati Kisan Bhagat And Another on 29 April, 2025
2025:BHC-AS:22136
21-AO-166-2023.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 166 OF 2023
WITH
INTERIM APPLICATION NO. 2099 OF 2023
1. Smt. Umabai Dattu Bhoir
(Since deceased through legal heirs
Applicant no. 2, 3 and 4)
2.. Indira Anant Thakur
Age : 55 yrs, Occu : Housewife
R/o. Tembhode, Taluka - Panvel
District - Raigad, Pincode : 401405
3. Manda Pandurang Bhoir
Age : 50 yrs, Occupation - Housewife
R/at : Dahisar Mori, District Thane ... Appellants
Pincode : 400 612 (Original Defendants)
Versus
1. Malati Kisan Bhagt
Age : 55 Years, Occu : Housewife
R/at - Kalyan, Koliwada
District - Thane
2. Hirabai Gajanan Bhagat
Age - 50 years, Occu : Housewife
R/at: Panvel, Koliwada,
District - Raigad ... Respondents
Pincode - 415501 [Org. Plaintiffs]
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Mr. Drupad S. Patil a/w. Mr. Prasad Keluskar for the Appellants.
None for the Respondents.
CORAM : GAURI GODSE, J.
DATE : 29th APRIL 2025
JUDGMENT :
1. In view of the order dated 1 st April 2024, this appeal is heard
for final disposal. Heard learned counsel for the appellants. Though
served, none appeared for the respondents.
2. The trial court rejected the plaint under clause (d) of Rule 11
of Order VII of the Code of Civil Procedure, 1908 [“CPC“]. However,
the appellate court reversed the trial court’s order and restored the
suit to its original position by setting aside the order of rejection.
Hence, this appeal by the original defendants.
3. The appellants had filed an application under the Bombay
Regulation VIII of 1827 [“Bombay Regulation”] for the grant of an
heirship certificate. The respondents were not party to the
proceedings initiated by the appellants. By order dated 21 st August
2018, the appellants’ application was allowed, and it was declared
that the appellants are recognised as the legal heirs of deceased
Changa @ Changu Pada Bhoir. Accordingly, the heirship certificate
in favour of the appellants was issued in the form contained in
Appendix B of the Bombay Regulation.
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4. The respondents also claim to be heirs and legal
representatives of the deceased Changa @ Changu Pada Bhoir.
The dispute between the parties regarding the title pertains to the
same property. However, both parties claim that their respective
predecessor in title by name, Changa @ Changu Pada Bhoir is the
owner of the suit property. The respondents filed a civil suit for a
declaration that they are the owners of the suit property and further
prayed for a declaration that the proceedings under the Bombay
Regulation and the certificate issued therein would not bind them. In
this suit, the appellants filed an application under Order VII, Rule 11
of the CPC, for the rejection of the plaint. The trial court rejected the
plaint, holding that the Civil Court would not have jurisdiction to
revoke the heirship certificate granted by the Testamentary Court.
5. The trial court held that the dispute between the parties was in
respect of who is the legal heir of deceased Changa @ Changu
Pada Bhoir, and thus, the same can be decided by the
Testamentary Court and not by the Civil Court. The trial court held
that, since there were two separate heirship certificates relied upon
by both parties, in the absence of any concrete decision by the
Testamentary Court regarding the legal heirs of the deceased,
Changa @ Changu Pada Bhoir, no relief could be granted in the
Civil Court. Hence, the appellants’ application under Order VII Rule
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11 of the CPC was allowed, and the plaint was rejected.
6. The respondents preferred an appeal challenging the rejection
of the plaint. The respondents relied upon the decision of this court
in the case of Parvatabai @ Beby wd/o Parasram More and Another
vs. Surekha @ Rekha wd/o. Dashrath Surjuse 1. The appellate court
held that, considering the averment in the plaint, the suit was based
on the right accrued to the plaintiffs as heirs of the deceased in
respect of the suit property. Since two heirship certificates were
issued by the Testamentary Court, and the issue raised concerned
the right to the property through the respective predecessors in title
of the parties, the appellate court held that the dispute was
cognizable by the Civil Court.
7. The appellate court held that the plaint discloses a cause of
action for the plaintiffs to sue for their right to the suit property. The
appellate court held that there was no express bar under any law
that would allow the suit to be rejected at the threshold. Thus, the
rejection of the plaint is set aside by the appellate court, and the suit
is restored.
8. Learned counsel for the appellants submits that the impugned
order passed by the appellate court ignores the provision of Section
387 of the Indian Succession Act, 1925 [“Succession Act“] and the
1 2019 SCC OnLine Bom 303
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second part of Section 7 of the Bombay Regulation. He submits
that the trial court had rightly rejected the plaint under clause (d) of
Rule 11 of Order VII of the CPC. Learned counsel for the appellants
relied upon the decision of the Hon’ble Apex Court in the case of
Madanuri Sri Ram Chandra Murthy vs. Syed Jalal 2 to support his
submissions that the Civil Court’s jurisdiction would be barred and
the plaint was liable to be rejected under Order VII Rule 11(d).
Learned counsel for the appellant relied upon Section 387 of the
Indian Succession Act, 1925, which reads as under :
“387. Effect of decisions under this Act, and liability of
holder of certificate thereunder.–
No decision under this Part upon any question of right
between any parties shall be held to bar the trial of the
same question in any suit or in any other proceeding
between the same parties, and nothing in this Part shall
be construed to affect the liability of any person who may
receive the whole or any part of any debt or security, or
any interest or dividend on any security, to account
therefore to the person lawfully entitled thereto.”
Learned counsel for the appellants submitted that the observation
with regard to the words used in Section 387 is with reference to the
question of right between the parties and thus the same would not
apply in the present case as the issue between the parties to the
2 (2017) 3 SCC 174
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present suit was not subject matter in the proceedings under
Bombay Regulation. He submits that the respondents were not
party to the proceedings in the application for issuance of the
heirship certificate under the Bombay Regulation. Hence, according
to the learned counsel for the appellants, the correct remedy
available for the respondents would be to either apply for revocation
of the certificate or file an appeal.
9. Learned counsel for the appellants submits that the remedy
available to a party aggrieved by the grant of the heirship certificate
would either be under Section 383 of the Succession Act for
revocation of the certificate or appeal under Section 384 of the
Succession Act. He thus submits that the remedy against the
heirship certificate granted under the Bombay Regulation would
therefore be available under Section 383 or Section 384 read with
Section 390 of the Succession Act.
10. Learned counsel for the appellants further submits that the
second part of Section 7 of the Bombay Regulation also provides
for annulment of the certificate by the Zilla Court. He submits that
the words used in the second part of Section 7 of the Bombay
Regulation state that the Zilla Court shall annul the certificate. He
thus submits that even under the Bombay Regulation, the remedy
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provided is annulment of the certificate by the Zilla Court. He thus
submits that when a remedy is provided under the Bombay
Regulation as well as under the Succession Act, the Civil Court’s
jurisdiction would be barred from challenging or raising any
objection to the certificate granted under the Bombay Regulation.
11. Learned counsel for the appellants submits that the decision
of this court in the case of Parvatabai would not be applicable in the
present case. He submits that this court’s observation regarding the
availability of filing an appeal under Section 384 is based on the
facts of the case, specifically the prayers, and as a second
application was filed for the issuance of the heirship certificate. He
thus submits that the observation by this court in the case of
Parvatabai that the remedy of filing an appropriate suit before the
Civil Court is available to the aggrieved party was regarding the
facts and circumstances of that case. Learned counsel for the
appellants thus submits that considering the remedies available
under the Succession Act and the Bombay Regulation, the Civil
Court’s jurisdiction would be barred to challenge or raise any
objection with regard to the heirship certificate issued under the
Bombay Regulation.
12. I have perused the papers of the appeal as well as the
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relevant provisions relied upon by the learned counsel for the
appellants. There is no exclusion of the Civil Court’s jurisdiction
either under the Succession Act or the Bombay Regulation with
reference to the prayers and rights claimed on the property in the
present suit. Section 7 of the Bombay Regulation reads as under :
“7. First.–An heir, executor or administrator, holding the
proper certificate, may do all acts and grant all deeds
competent to a legal heir, executor or administrator, and
may sue and obtain judgment in any Court in that
capacity.
Second.–But, as the certificate confers no right to the
property, but only indicates the person who, for the time
being, is in the legal management thereof, the granting of
such certificate shall not finally determine nor injure the
rights of any person; and the certificate shall be annulled
by the Zilla Court, upon proof that another person has a
preferable right.
Third.–An heir, executor or administrator, holding a
certificate, shall be accountable for his acts done in that
capacity to all persons having an interest in the property,
in the same manner as if no certificate had been granted.”
The second part of Section 7 of the Bombay Regulation provides for
annulment of the certificate by the Zilla Court. However, there is no
express bar to the Civil Court’s jurisdiction. A plaint can be rejected
where it appears from the statement made in the plaint that the suit
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is barred by any law.
13. I do not find any substance in the argument raised by the
learned counsel for the appellants by relying upon Section 387 of
the Succession Act to reject the plaint at the threshold as barred by
law. Section 387 of the Succession Act provides that a decision
under Part X of the Succession Act, upon any question of right
between any parties, shall not be held as a bar to the trial of the
same question in any suit or any other proceeding between the
same parties. Thus, what is contemplated by the language of
Section 387 is that the decision under Part X shall not conclusively
decide the rights of the parties and the adjudication under the said
Part of the Act would be limited to the prayers made under the
provisions of Part X of the Succession Act for grant of succession
certificate. Therefore, Section 387 of the Succession Act cannot be
construed as any bar to the civil court’s jurisdiction to try and decide
the suits as per the jurisdiction provided under Section 9 of the
CPC.
14. In the case of Madanuri Murthy, the Hon’ble Apex Court held
that since the power conferred on the court to terminate civil action
at the threshold is drastic, the conditions enumerated under Order
VII Rule 11 of the CPC for the exercise of the power of rejection of
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the plaint have to be strictly adhered to. The facts of that case
pertained to a dispute regarding Wakfs, where the aggrieved party
must approach the Wakf Tribunal constituted under Section 83 of
the Wakf Act, 1995, and consequently, the jurisdiction of the civil
court is taken away. Hence, the Hon’ble Apex Court held in view of
the facts of the said case that the plaint did not disclose the cause
of action and was also barred by law; hence, liable to be rejected at
the threshold. In the facts of the present case, the decision of the
Hon’ble Apex Court in the case of Madanuri Murthy is of no
assistance to the arguments raised on behalf of the appellants.
15. This Court in the case of Parvatabai held that Section 384 of
the Succession Act is concerned with the aspect of filing an appeal
by a person aggrieved when either the grant of a certificate is
refused or revoked under Part X of the Succession Act. In the facts
of the said case, this court held that the remedy available was either
to file a suit under Section 387 or an application for revocation
under Section 383 of the Succession Act or an application for
annulment of the certificate under clause 7 of the Bombay
Regulation. However, this Court further held that the remedy of filing
an appropriate suit before the civil court was available to the
aggrieved party.
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16. In the present case, the respondents have made a
substantive prayer in the suit for a declaration of their title to the suit
property. The consequential prayer is for a declaration that the
proceedings and the orders passed under the proceedings initiated
under the Bombay Regulation would not be binding upon the
plaintiffs. Thus, considering the averments in the plaint and the
prayers in the suit, none of the prayers can be held as barred by
any law. The substantive prayer regarding the declaration of title
would fall within the exclusive jurisdiction of the Civil Court, as the
issue of title to the property cannot be decided either under the
provisions of the Succession Act or the provisions of the Bombay
Regulation. The prayers in the suit would not fall under either of the
remedies available under the Succession Act and the Bombay
Regulation. Section 9 of the CPC provides for the Civil Court’s
jurisdiction to try all civil suits unless barred. The prayers in the suit
regarding the declaration of title to the suit property would fall within
the exclusive domain of the Civil Court. Hence, the civil court has
the jurisdiction to decide the suit in the present case.
17. There is no express bar to the civil court’s jurisdiction provided
under the provisions of the Succession Act or the Bombay
Regulation. The appellate court is therefore right in holding that in
the absence of any bar to the civil court’s jurisdiction, the plaint
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cannot be rejected at the threshold either under Order VII Rule
11(a) or (d) of the CPC. The appellate court held that the plaint
discloses a cause of action for the prayers for declaration, and thus,
the plaint cannot be rejected at the threshold.
18. Therefore, in my opinion, remedies available under the
Succession Act and the Bombay Regulation cannot be construed as
any bar to the Civil Court’s jurisdiction to seek a declaration of title
and other consequential reliefs as prayed in the present suit. In the
present case, considering the prayers in the suit, the first appellate
court is correct in holding that the plaint cannot be rejected at the
threshold. Thus, the impugned order setting aside rejection of the
plaint and restoring the suit to its original position cannot be faulted.
I therefore see no reason to interfere with the impugned order.
There is no merit in the appeal.
19. Hence, for the reasons recorded above, the appeal is
dismissed.
20. In view of the dismissal of the appeal, the pending application
is disposed of as infructuous.
Digitally
signed by
RAJESHWARI
[GAURI GODSE, J.]
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2025.05.20
03:25:37
+020012/12
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