Kerala High Court
Rohini S.T vs The Tahsildar, Taluk Office on 30 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
WP(C) NO. 9657 OF 2021
PETITIONER:
ROHINI S.T.,
AGED 32 YEARS, W/O.SURAJ V.S., PISHARATH
ILLAVUNGALPARAMBU, VADAVUKODE KAILAS COLONY
P.O., THEVAKKAL, ERNAKULAM, PIN - 682 021,
PRESENTLY RESIDING AT POOVANTHARA HOUSE,
PERUMBALAM P.O., CHERTHALA, ALAPPUZHA.
BY ADVS.
SHIBI.K.P.
SRI.C.K.SUNIL
SMT.T.T.JAYANTHY
SHRI.PRADEEP T.C.
RESPONDENTS:
1 THE TAHSILDAR,
TALUK OFFICE, ALUVA EAST, PIN - 683 112.
2 THE DEPUTY TAHSILDAR, TALUK OFFICE,
CHERTHALA, PIN - 688 570.
3 THE VILLAGE OFFICER,
ALUVA EAST, PIN - 683 112.
4 THE VILLAGE OFFICER
PERUMBALAM VILLAGE, CHERTHALA, PIN- 688 570.
SMT.PRINCY XAVIER GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.9657 of 2021 2
C.R.
P.B.SURESH KUMAR, J.
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W.P.(C) No.9657 of 2021
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Dated this the 30th day of July, 2021.
JUDGMENT
The question falls for consideration in this matter is
whether the competent authority for grant of heirship
certificate sought by the petitioner is justified in insisting copy
of the First Information Report lodged in connection with the
missing of the father of the petitioner for granting the said
certificate excluding the name of her father.
2. The mother of the petitioner died on
14.02.2013. It is stated by the petitioner that her father
Thankappan had left the company of her mother and the
petitioner, about 30 years ago and his whereabouts are not
known to them thereafter. It is stated that earlier also, the
father of the petitioner had left the company of her mother and
came back after one and a half years, and it is in the said
circumstances that the mother of the petitioner did not lodge
any complaint with the police in connection with the missing of
her father, expecting that he would come back. Since the
whereabouts of the father of the petitioner is not known for the
last more than 30 years, on the death of the mother of the
petitioner, the petitioner preferred an application for heirship
certificate. The case of the petitioner is that since the deceased
does not have any blood relatives other than the petitioner,
and since the whereabouts of her father is not known for the
last more than 30 years, it has to be certified by the competent
authority that the petitioner is the sole heir of her deceased
mother. In the enquiry conducted pursuant to the said
application, it was revealed to the competent authority that the
petitioner and her father are the only heirs of the deceased and
that the whereabouts of her father is not known for the last
more than 30 years. Nevertheless, it is stated that the
competent authority, namely the first respondent has issued
Ext.P11 communication to the concerned Village Officer to
require the petitioner to re-submit the application with a copy
of the First Information Report lodged in connection with the
missing of the father of the petitioner. The petitioner is
aggrieved by Ext.P11 communication. The case set out by the
petitioner in the writ petition is that since the mother of the
petitioner did not lodge any complaint in connection with the
missing of the father of the petitioner having regard to his
previous conduct, the petitioner is unable to obtain heirship
certificate on account of the insistence of the copy of the First
Information Report by the authorities. It is also the case of the
petitioner that the insistence of the document aforesaid, in the
facts and circumstances of the case is unreasonable, arbitrary
and unjust. The petitioner, therefore, seeks appropriate
directions in this regard in the writ petition.
3. Heard the learned counsel for the petitioner as
also the learned Government Pleader.
4. The learned counsel for the petitioner pointed
out that it was revealed in the enquiry conducted by the Village
Officer that the whereabouts of the father of the petitioner is
not known for the last more than 30 years, and when the
materials available before the competent authority indicates
that if a person has not been heard of for more than seven
years by those who would have naturally heard of him if he had
been alive, the competent authority is bound to presume, in
the light of Section 108 of the Indian Evidence Act that he is
dead and issue heirship certificate without including his name
in the certificate. It was contended by the learned counsel that
there is no legal basis for insisting copy of the First Information
Report lodged in connection with the missing of persons
invariably in all cases.
5. Per contra, the learned Government Pleader
submitted that a copy of the First Information Report lodged in
connection with the missing of persons is insisted while issuing
heirship certificate to maintain consistency in the procedure for
grant of heirship certificate and the insistence of the said
document cannot, therefore, be said to be unreasonable,
arbitrary or unjust.
6. I have considered the submissions made on
behalf of the parties on either side.
7. Section 108 of the Indian Evidence Act reads
thus:
108. Burden of proving that person is alive who has
not been heard of for seven years. -- [Provided that
when] the question is whether a man is alive or dead, and
it is proved that he has not been heard of for seven years
by those who would naturally have heard of him if he had
been alive, the burden of proving that he is alive is 2
[shifted to] the person who affirms it.
In terms of the extracted provision, if it is established that a
person has not been heard of for more than seven years by
those who would naturally have heard of him if he had been
alive, the burden of proving that the person is alive is on the
person who affirms it. In other words, if a person has not been
heard of for more than seven years by those who would have
naturally heard of him if he had been alive, in the absence of
any materials to show that he is alive, he can be presumed to
have been dead. The first respondent does not have a case
that the father of the petitioner is alive or that he has been
heard of during the last 30 years by the petitioner or any of her
relatives. On the other hand, it was revealed in the enquiry
conducted on the application preferred by the petitioner that
the father of the petitioner has not been heard of for more than
30 years. The enquiry has been conducted by the Village
Officer, Aluva East. Ext.P9 is the report submitted by the Village
Officer in this regard. The relevant portion of Ext.P9 report
reads thus:
ആലവ ഈസ വല ജൽ ക കന ട തറകരയൽ പ ഷ രത ഇലവങൽ പറമ വടൽ
തങപൻ മകൾ ലര ഹ ണ S.T ലഗൽ ഹഹയർഷ പ ന ലവണ അലപക ചടളത ണ .
പ ല1ശക ലന3ഷണതൽ അലപകകയഹട പ ത വ ശ തങപൻ 30 വർഷമ യ ന ട
വട ലപ യടളത7 ടയ ഹന പറയ ഹത ര അറവ7 ഇ തതമ ണ . അലപകകയഹട
മ ത വ മ ണ 14-2-2013 ൽ മരണഹപടടളത7 അവക ശയ യ അലപകക
ശ മത :ലര ഹ ണ മ തമ ണളഹതന ല= ധ?ഹപടടളതമ ണ.
Of course, the procedure for grant of heirship certificate shall
be consistent, but the same shall not result in injustice to the
parties. In the case on hand, the explanation offered by the
petitioner for not lodging the First Information Report in
connection with missing of her father is that having regard to
the previous conduct of her father, the family expected bona
fide that he would come back after some time. The family of
the petitioner, according to me, cannot be blamed for having
not lodged any First Information Report with the police in a
case of this nature. If the family cannot be found fault with for
having not lodged the First Information Report, the denial of
heirship certificate to the petitioner would be certainly
arbitrary, so long as the competent authority does not affirm
that the father of the petitioner is alive. I take this view also for
the reason that in so far as the competent authority does not
entertain a doubt to the stand of the petitioner aforesaid, the
petitioner would certainly be issued heirship certificate applied
for after seven years, if she lodges a First Information Report
now concerning the missing of her father. It is seen that on
similar facts, in W.P.(C) No.8107 of 2010, this Court held that if
it is reasonably certain that the person went missing and he
has not been heard of for more than seven years, he shall be
presumed to have been dead.
In the said view of the matter, the writ petition is
allowed and respondents 1 and 2 are directed to issue the
heirship certificate sought by the petitioner forthwith, without
insisting copy of the First Information Report, if any, lodged in
connection with the missing of the father of the petitioner. This
shall be done within the minimum period required for issuance
of such certificates.
Sd/-
P.B.SURESH KUMAR, JUDGE
YKB
APPENDIX OF WP(C) 9657/2021
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE PHOTOGRAPH OF
PETITIONER'S MARRIAGE UNDER THE
SUPERVISION OF THE PETITIONER'S UNCLE.
EXHIBIT P2 THE TRUE COPY OF SALE DEED NO.2309/1984
IN SY.NO.630/2 OF ALUVA EAST VILLAGE
REGISTERED AT ALUVA SRO IN FAVOUR OF
MADHAVAI AND PADMANABHAN.
EXHIBIT P3 THE TRUE COPY OF RELEASE DEED
NO.845/2000 IN RE.SY.NO.305/34 (OLD
SY.NO.630/2 & 616/10) OF ALUVA EAST
VILLAGE REGISTERED AT ALUVA SRO BY THE
PETITIONER'S UNCLE SRI.RAGHAVAN IN
FAVOUR OF THE PETITIONER'S MOTHER
SMT.MANI K.M.
EXHIBIT P4 THE TRUE COPY OF THE RATION CARD
NO.1736010699 IN THE NAME OF
PETITIONER'S MOTHER SMT.MANI K.M.
EXHIBIT P5 THE TRUE COPY OF AADHAR CARD OF
PETITIONER'S MOTHER SMT.MANI K.M. WITH
AADHAR NUMBER 9847856519548.
EXHIBIT P6 THE TRUE COPY OF THE SECONDARY SCHOOL
LEAVING CERTIFICATE SHOWING THE
ADDRESS.
EXHIBIT P7 THE TRUE COPY OF THE AADHAR CARD
NO.975852461250 OF THE PETITIONER
SHOWING THE ADDRESS OF THE PROPERTY.
EXHIBIT P8 THE TRUE COPY OF APPLICATION DATED
5/11/2020 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT FOR OBTAINING
THE LEGAL HEIRSHIP CERTIFICATE.
EXHIBIT P9 THE TRUE COPY OF THE REPORT NO.490/2020
DATED 13/11/2020 OF THE 3RD RESPONDENT,
VILLAGE OFFICER ALUVA EAST.
EXHIBIT P10 THE TRUE COPY OF THE REPORT NO.77/2020
DATED 16/11/2020 OF 4TH RESPONDENT,
VILLAGE OFFICER, PERUMBALAM VILLAGE,
CHERTHALA TALUK TO THE 2ND RESPONDENT.
EXHIBIT P11 THE TRUE COPY OF REPORT NO.F4-
11364/2020 DATED 20 /11/2020 ISSUED BY
THE 2ND RESPONDENT, DEPUTY TAHSILDAR TO
THE PETITIONER.
EXHIBIT P12 THE TRUE COPY OF THE CERTIFICATE DATE
06/11/2020 ISSUED BY JINILA RASHEED,
CHAIRPERSON, STANDING COMMITTEE (HEALTH
AND EDUCATION), EDATHALA GRAMA
PANCHAYAT.
