It is mandatory for the Court to issue an heirship certificate, if no objector comes forward within one month from the date of citation publication

Proceeding for heirship certificate can not be suspended till the decision of separate suit for partition filed by the objector

    This writ petition challenges the order dated 18.07.2018 passed by the Civil Judge, Junior Division, Ghatanji, whereby an application filed by the petitioner under Section 2 of the Bombay Regulation Act, 1827 for grant of heirship certificate has been kept suspended, till conclusion of civil suit pending between the parties.[Para No.2]

    The petitioner had filed the aforesaid application before the Court below claiming that she was the only wife of deceased Ramniklal Gandecha and that they had no children. On this basis, the petitioner prayed for grant of heirship certificate under the aforesaid provision to be declared the only heir of the said deceased Ramniklal Gandecha.[Para No.3]

    In the said proceeding, the respondent no.1, who was the sister of the said deceased Ramniklal Gandecha, filed an objection. In the said objection, it was pointed out that the said objector had filed a civil suit bearing Regular Civil Suit No. 7 of 2016 before the Civil Judge, Junior Division, Ghatanji, being a suit for partition and separate possession, wherein the petitioner, brother and sister of the said objector were defendants. It was contended by the said objector (respondent no.1) that if heirship certificate was granted to the petitioner, she would approach the competent authority for mutation of her name in the house property in which she was residing. It was contended that, according to the objector -respondent no.1, the said house property belonged to her father, in respect of which the aforesaid suit for partition and separate possession had been filed.[Para No.4]

    By the impugned order, the Court below has come to the conclusion that when the aforesaid suit for partition and separate possession had been already filed by the respondent no.1(objector), the application filed by the petitioner under Section 2 of the aforesaid Act would have to wait final adjudication of rights of parties in the aforesaid suit. On this basis, the proceedings in the application filed by the petitioner were suspended till the conclusion of the civil suit.[Para No.5]

    A perusal of Section 2 of the aforesaid Act and the application filed by the petitioner thereunder shows that the only prayer made by the petitioner is for grant of heirship certificate to declare that she is the only heir of the deceased Ramniklal Gandecha. A perusal of the objection raised on behalf of respondent no.1 shows that the said respondent has admitted the fact that the petitioner was the only wife of the deceased Ramniklal Gandecha and that they had no children. In view of the aforesaid facts, it would be evident that the claim made in the application filed by the petitioner under the provisions of the said Act, even if granted, would not result in recognition of any rights of the petitioner in respect of the said house property and that an application for mutation before the competent authority, if preferred by the petitioner, would be decided as per law after issuance of notice by the competent authority. Grant of heirship certificate would not ipso facto lead to recognition or crystallization of any rights of the petitioner in the house in question. At best, it would assist the petitioner in claiming that she was entitled to the rights that the deceased Ramniklal Gandecha was entitled, as his only heir.[Para No.6]

    Therefore, apprehension expressed by the objector before the Court in the present proceedings was misconceived. The Court below also erred in suspending the proceeding in the present case only on the ground that the aforesaid suit filed by the respondent no.1 was pending before the said Court. The issues raised in the said suit, filed for partition and separate possession, would certainly be decided on merits by the Court and mere pendency of the aforesaid suit ought not to result in suspension of proceedings in the present case. This is fortified by a decision referred to by the learned counsel appearing for the petitioner in the case of Ganpati Vinayak Achwal - 2015(2) All MR 285 wherein this Court held as follows:

Bequeath of disproportionate share in Will does not make the Will suspicious or unnatural

Thus, from the tenor of the Will read with the document dated 30 September, 2000, it appears that Pravin had equal love and affection for Ashok and Dipti. However, Pravin was of the opinion that he had spent sufficient sums of money on Dipti to give her a comfortable life and hence he did not think it necessary to leave much of his properties to his daughter. However, it is not that Dipti was totally deprived by Pravin in the Will. As noted, 9% Relief Bonds with face value of Rs.31,00,000/- and Maturity Value of over Rs.48,00,000/- were left for Dipti. It has also come out from the evidence on record that Dipti and her husband are both well established in U.S.A. and between the two of them, they earn over 1 million U.S. dollars per year. This factor is also likely to have played in the mind of the testator in deciding that it was not necessary to leave much for Dipti who was financially more than secure. Just because the bequests in favour of the testator's two children are not equal and may even be disproportionate, the same in my view, per se would not amount to a suspicious circumstance or make the Will unnatural. A Will is generally made when the testator desires to alter the natural course of succession. As observed by the Apex Court in the case of Ramabai Padmakar Patil (Dead) v. Rukminibai Vishnu Vekhande (supra), a Will is executed to alter the natural mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass equally to his natural heirs there is no necessity at all of executing a Will. It is true that the propounder of a Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that the natural heirs or some of them have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance.[Para No.31]

    In S. Sundaresa Pai vs. Sumangala. T. Pai (supra), the Hon'ble Supreme Court observed at Paragraph 7 of the judgment inter alia as follows:

"The uneven distribution of assets amongst children, by itself, cannot be taken as a circumstance causing suspicion surrounding the execution of the will. One son was given bulk of immovable properties; another none; another half share in one immovable property; other half being given to the plaintiff and another daughter and husband were given nothing. It is also not in dispute that some properties were given in gift to the plaintiff by her mother during her lifetime. There was nothing unnatural."[Para No.51]

No obligation on legal heirs to intimate the death of the assessee to the revenue/income tax department

Notice u/s. 148 of Income Tax Act issued to the deceased assessee requiting details of finantial transactions made by him in the past - Income tax department contacted the daughter of deceased on phone - they transferred the proceeding on her PAN - order passed against her - order challenged in writ petition

It is well settled law that an alternative statutory remedy does not operate as a bar to maintainability of a writ petition in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or notice or proceedings are wholly without jurisdiction or the vires of an Act is challenged. [See Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, (1998)8 SCC 1].[Para No.23]

Further, the fact that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequently would have no legs to stand. If the notice goes, so does the order of assessment. It is trite law that if the Assessing Officer had no jurisdiction to initiate assessment proceeding, the mere fact that subsequent orders have been passed would not render the challenge to jurisdiction infructuous. In Calcutta Discount Co. Ltd. Vs. Income Tax Officer, Companies District I Calcutta and Another, AIR 1961 SC 372 the Supreme Court has held as under:-

"27. .....It is well settled however that though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences.
28. Mr Sastri mentioned more than once the fact that the Company would have sufficient opportunity to raise this question viz. whether the Income Tax Officer had reason to believe that underassessment had resulted from non-disclosure of material facts, before the Income Tax Officer himself in the assessment proceedings and if unsuccessful there before the appellate officer or the Appellate Tribunal or in the High Court under Section 66(2) of the Indian Income Tax Act. The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action.
29. In the present case the Company contends that the conditions precedent for the assumption of jurisdiction under Section 34 were not satisfied and come to the court at the earliest opportunity. There is nothing in its conduct which would justify the refusal of proper relief under Article 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons....."[Para No.24]