Umabai Dattu Bhoir and Ors. v. Malati Kisan Bhagt and Ors.

1. In view of the order dated 1st 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 21st 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.

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 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 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 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 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 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 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 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.