Dismissed

Shaikh Kathumiyan Banemiyan v. Kisan Deorao Pawar Gpa Gangadhar Kondiram Kate

Bombay HC12 Mar 2013WP/1933/2013

Case brief

AI extract

What is this about?

The Single Judge dismissed the writ petition filed to challenge the order rejecting a preliminary issue on limitation concerning the revocation of an heirship certificate. The court held that allegations of fraud made the matter a mixed question of law and fact, not triable as a preliminary issue, and declined to exercise jurisdiction under Article 227.

What did the court decide?

The writ petition filed under Article 227 of the Constitution of India is dismissed. No costs.

Shaikh Kathumiyan Banemiyan Vs Kisan Deorao Pawar… — Succession and Inheritance | Bombay HC (2013)

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1 W.P. 1933.2013

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FARAD CONTINUATION SHEET No.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1933 OF 2013

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Shaikh Kathumiyan S/o Banemiyan V/s Kisan Deorao Pawar

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Office Notes,Office	Court's or Judge's orders
Memoranda of
Coram,appearances,	................................
Court's orders or	CORAM : S.V.GANGAPURWALA, J.
directions and
Registrar's orders	DATE : 12/03/2013

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Mr. S.J.Salunke, Advocate for the Petitioner.

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PER COURT :

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The application filed by the petitioner to frame and decide the issue of limitation as preliminary issue is rejected. Aggrieved thereby the present Writ Petition is filed.

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Mr. Salunke, the learned Counsel for the petitioner submits that the respondent had filed an application for revocation of the heir ship certificate after lapse of twelve (12) years. The same was barred by limitation. Though no period of limitation is prescribed, as per Article 139 of the Limitation Act, the proceedings ought to

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2 W.P. 1933.2013

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have been filed within three (3) years. For that purpose, the learned counsel relies on the Judgment of the Apex Court in the case of Shakuntala Devi & Ors. V/s Chamru Mahto & Anr. reported in AIR 2009 Supreme Court - 2075 .

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The learned counsel further contends that there is no question of any disputed question of fact and in such a case the issue of limitation has to be framed as preliminary issue. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of Orissa High Court in the case of Baishnab Charan Ray V/s Debraj Sahoo and Anr. reported in AIR 2004 Orissa - 3 .

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With the assistance of the learned counsel, I have gone through the order.

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The respondent has filed proceedings for revocation of heir ship certificate granted in favour of the petitioner. The heir ship certificate is granted in favour of the petitioner in the year 1998 and an application for revocation of the said certificate has been filed by the present respondent in the year 2010. It is filed after a long slumber of twelve (12) years.

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The respondent in his application for revocation of heir ship certificate has averred about the fraud played by the petitioner

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3 W.P. 1933.2013

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while obtaining the heir ship certificate. When a fraud is averred, then in such a case, Section 17 of the Limitation Act would operate. It would become mixed question of law and fact. If an issue is one which involves mixed question of law and fact, the same is not to be tried as a preliminary issue.

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More over, the proceedings for revocation of heir ship certificate are summary in nature.

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In light of the above, I am not inclined to entertain the Writ Petition under Article 227 of the Constitution of India.

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The Writ Petition as such is dismissed. No costs.

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[ S.V.GANGAPURWALA, J. ]

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KNP/W.P. 1933.2013

Shaikh Kathumiyan Banemiyan v. Kisan Deorao Pawar Gpa Gangadhar Kondiram Kate

Case brief

What is this about?

What did the court decide?

Shaikh Kathumiyan Banemiyan v. Kisan Deorao Pawar Gpa Gangadhar Kondiram Kate

Case brief

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What did the court decide?

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