Kerala High Court

Premalatha Subhash vs The State Of Kerala on 6 October, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
            THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
    WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                          WP(C) NO. 13305 OF 2018
PETITIONER:

            PREMALATHA SUBHASH, AGED 61 YEARS
            W/O. SUBHASH ANANDAN, PERMANANTLY RESIDING SADGURU
            CHHAYA, KALYAN CITY, KALYAN, MAHARASHTRA- 421 301,
            (RESIDING AT PUTHUKUDY HOUSE, POST PANNIYANNUR,
            PANNIYANNUR AMSOM, CHAMBAD DESOM,
            THALASSERI TALUK- 670 671.

            BY ADV SRI.SATHEESHAN ALAKKADAN



RESPONDENTS:

    1       THE STATE OF KERALA
            REPRESENTED BY SECRETARY TO GOVERNMENT,
            DEPARTMENT OF REVENUE,
            THIRUVANANTHAPURAM - 695 001.

    2       DISTRICT COLLECTOR
            COLLECTROATE OFFICE,
            KANNUR DISTRICT- 670 002.

    3       THE THAHASILDAR TALUK OFFICE
            THALASSERY, KANNUR DISTRICT- 670 101.

    4       THE VILLAGE OFFICER,
            OFFICE OF THE PANNIYANNUR VILLAGE
            THALASSERY, KANNUR DISTRICT- 670 671.

            BY GOVERNMENT PLEADER SRI.K.M.FAISAL




     THIS     WRIT   PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
16.09.2021, THE COURT ON 06.10.2021 DELIVERED THE FOLLOWING:
 WP(C) NO. 13305 OF 2018              2


                                                                "C.R"
                             JUDGMENT

The petitioner's mother-in-law Lakshmi Anandan expired on

19.02.2007 at Karnataka. Petitioner's husband expired on 27.07.2013.

According to the petitioner, herself, her son and sister-in-law are now

permanently residing in the State of Maharashtra and being so, they

are not in a position to look after the property of deceased Lakshmi

Anandan described in Ext.P1 partition deed situated in Thalassery

Taluk and propose to dispose of the property by way of sale.

Therefore, the petitioner approached the 3rd respondent, the Tahsildar,

Thalassery, with an application dated 05.10.2016 for obtaining legal

heirship certificate of deceased Lakshmi Anandan. However, the 3 rd

respondent rejected her request as per Ext.P5 order stating that, neither

the deceased nor the petitioner, her son or her sister-in-law whose

names mentioned in the application are permanently residing within

the territory of Thalassery Taluk and therefore, the legal heirs of

deceased Lakshmi Anandan cannot be determined from that office. It

is also stated therein that the petitioner could approach the Civil Court

for obtaining Succession Certificate. Ext.P5 order is impugned in this

writ petition. The petitioner has also prayed for direction to the 3 rd

respondent to issue legal heirship certificate as per her application

dated 05.10.2016.

2. According to the petitioner, no proper enquiry was conducted

by the 3rd respondent before rejecting the application for legal heirship

certificate and Ext.P1 partition deed would show that the deceased

Lakshmi Anandan was permanently residing in Thalassery Taluk.

3. A counter affidavit is filed by the 3rd respondent stating that the

application for the legal heirship certificate has been rejected after

conducting proper enquiry through the Village Officer, Panniyannur

and the enquiry revealed that, neither the deceased nor her heirs were

permanent residents of Thalassery Taluk. It is further stated that the

legal heirship certificate is issued for the purpose of financial

transactions limited upto Rs.1 lakh only and the purpose shown in the

application is for property transaction which crosses the said limit.

4. Heard the learned Counsel for the petitioner and the learned

Government Pleader for the respondents.

5. According to the petitioner, Ext.P1 partition deed would show

that Lakshmi Anandan was permanently residing at the address in

Thalassery Taluk and the 3rd respondent did not take into consideration

the said document while rejecting the application for legal heirship

certificate. The petitioner contends that the reasons stated in Ext.P5 for

rejecting the application for legal heirship certificate are erroneous and

unsustainable in law. She also relied on the decision of this Court

reported in Vishalakshi v. Bank of India [2006 (2) KLT 488] wherein

it has been held that, a Succession Certificate can be applied for only

in respect of debts and securities and cannot be granted in respect of

immovable property and therefore, the petitioner cannot be relegated

to Civil Court particularly when there is no dispute in between the

heirs.

6. Usually, an heirship certificate serves to identify the relationship of

the heirs to the deceased person.Clause 261 of the Kerala Village Manual

and G.O.(MS)No.359/67/RD dated 10.08.1967 deal with issuance of

heirship certificate. Clause 261 of the Manual provides that the heirs of

a deceased person shall produce heirship certificate issued by the

Tahsildar for receiving the savings deposited by the deceased with the

Government or other institutions or other eligible amounts due to the

deceased from the Government or other institutions.

7. G.O.(MS)No.359/67/RD dated 10.08.1967 deals with

Standing Orders on issuance of certificates and under the head

'Heirship Certificates', it provides that, under the provisions of the

Kerala Financial Code, Volume 1, pay, leave salary and other

emoluments due to and claimed on behalf of a deceased Government

servant can be paid without the production of the usual legal authority,

but on production of an heirship certificate issued by the Tahsildar in

whose jurisdiction the Government Servant lived and died or was

drawing his pay etc. or in whose jurisdiction the heirs of the deceased

live, provided the amount due to the deceased Government Servant

does not exceed Rs.1 lakh (as amended by G.O. (Ms) No.

136/2007/RD dated 27.04.2007). G.O.(MS)No.359/67/RD dated

10.08.1967 further provides that as per Part III of the Kerala Service

Rules, the arrears of pension of a deceased pensioner can be paid to the

heirs of the deceased to the extent of Rs.1 lakh on production of an

heirship certificate issued by a Tahsildar under the State Government

in whose jurisdiction the pensioner lived and died or was drawing his

pension or in whose jurisdiction the heirs of the deceased live. It

further provides that the heirship certificates should be issued by the

Tahsildars on applications put in by the claimants concerned and after

enquiring into the claims through the village officers concerned and

speaks of other formalities like publication in gazette, calling for

objections, enquiry into objections etc. Apart for the aforesaid

purposes, the said Government Order also authorises the Taluk

Tahsildars to issue heirship certificates in regard to disbursement of

compensation to the parties concerned under the third party insurance

scheme or under directions to parties by liquidators and Co-operative

Societies, banks and other institutions after such enquiries into the

right and title of the claimants as may be deemed sufficient and after

observing the procedure as above.

8. Going by Clause 261 of the Kerala Village Manual and G.O.

(MS)No.359/67/RD dated 10.08.1967, the heirship certificates are

issued for receiving amounts/monitory benefits of such nature and

limit specified therein, due and claimed on behalf of a deceased

person. It is not intended to be issued for the purpose of sale of

immovable property.

9. On the petitioner's own showing, she has applied for heirship

certificate for the sale of the property of deceased Lakshmi Anandan

and not for the purposes specified in Clause 261 of the Kerala Village

Manual and G.O.(MS)No.359/67/RD dated 10.08.1967. A certificate

of Legal Heirship can be obtained under e-services available under the

Kerala Information Technology (Electronic Delivery of Services)

Rules, 2010 and the format of Legal Heirship Certificate to be issued

in Form 6C appended to the said Rules has to state the purpose for

which the certificate is issued. If the purpose is not the one as specified

in the Kerala Village Manual and G.O.(MS)No.359/67/RD dated

10.08.1967, the question of jurisdiction of the Tahsildar on the basis of

place of residence of the deceased or the heirs does not arise for

consideration for issuance of the heirship certificate and the

application need not be entertained. The petitioner's contention that,

Ext.P1 partition deed would show that Lakshmi Anandan was

permanently residing at the address at Thalassery Taluk is of no

relevance.

10. In Renuka K.K. v State of Kerala and others [2018 (5)

KHC 601], this Court had occasion to consider the question as to

whether Legal Heirship Certificate can be issued to deal with an

immovable property. After referring to Clause 261 of the Kerala

Village Manual and G.O.(MS)No.359/67/RD dated 10.08.1967, this

Court held as under:-

"5....The heirship certificates are intended specifically for movable

assets; the value of which is less than Rs.5,000/-. This is the specific

purpose for which heir-ship certificates are issued even as per G.O.

[MS] No.359/67/RD dated 10.08.67.

6. In such circumstances, there cannot be any issuance of a Legal

Heir-ship Certificate to deal with an immovable property. The fact

that contemporaneous Gazette notification shows the issuance of

such certificate, even in the case of immovable properties cannot

persuade this Court to pass an order against the specific clause

restricting the issuance of heir-ship certificate only in the case of

assets valued less than Rs.5,000/-. The satisfaction of the

prospective purchaser cannot be a reason for this Court to direct

issuance of a certificate against the terms of the power conferred.

7. However, the petitioner could very well apply for mutation, in

which a similar enquiry would be conducted; as is provided under

Rule 27 of the Transfer of Registry Rules, 1966 [for brevity, the

Rules]. Or else, the petitioner would have to obtain a letter of

administration either from the Administrator General or approach

a Court of competent jurisdiction. However sub-section (2) of

Section 212 of the Indian Succession Act, 1925 makes inapplicable

sub-section (1) of Section 212 in the case of intestacy inter alia of

Hindus. Hence the mutation and the prior deed should establish

the title of the petitioner, especially when the mutation is granted

under Rule 27 of the Rules after conducting an enquiry, which is

akin to that conducted for issuance of the Legal Heir-ship

Certificate."