Madras High Court
A.Sureshbabu vs The Tahsildar on 2 August, 2021
W.P.Nos.13227 of 2020 and 15022 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.08.2021
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
Writ Petition No. 13227 of 2020
and
Writ Petition No. 15022 of 2021
A.Sureshbabu ... Petitioner in W.P.No.13227 of 2020
1. G.Chandrasekaran
2. G.Vijaya ... Petitioners in W.P.No.15022 of 2021
Versus
The Tahsildar,
Purasawakkam,
Chennai - 3 ... Respondent in W.P.No.13227 of 2020
The Tahsildar,
Aynavaram Taluk,
Chennai District,
Chennai 600 102. ... Respondent in W.P.No.15022 of 2021
Prayer in WP.No.13227 of 2020: Petition filed under Article 226 of the
Constitution of India, praying for issuance of a Writ of Certiorari calling for the
records relating to the rejection of the petition dated 04.06.2020 and to quash
the same. (Prayer in the writ petition is amended as per order dated 10.02.201
made in WMP No. 21488 of 2020 in WP No. 13227 of 2020)
Prayer in WP.No.15022 of 2021: Petition filed under Article 226 of the
Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus
calling for records dated 24.04.2021 order e/f/vz;/M)3/0308/2021 on the
file of the respondent and quash the same and issue consequential direction
directing the respondent to furnish Class II Legal Heir certificate to the
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1/14
W.P.Nos.13227 of 2020 and 15022 of 2021
Petitioners as per the representation dated 15.02.2021.
For Petitioner : Mr. G. Appavoo in WP No. 13227 of 2020
: Mr. B. Sentilkumar in WP.No.15022 of 2021
For Respondent : Mr. Stalin Abhimanyu
Government Counsel
ORDER
In both these writ petitions, challenge is to the order of rejection passed
by the respective respondent, rejecting the request of the respective petitioners
for issuance of legal heir certificates. Both the orders of rejection have been
passed on the ground that the petitioners are not Class I legal heirs and they are
Class II legal heirs.
2. The petitioner in WP No. 13227 of 2020 claims that he was born to
his biological parents Thiru. K. Anthony and Thamaraiselvi on 20.08.1994.
However, on 16.10.2008, his paternal Uncle Yesu @ Yobu adopted the
petitioner by following all the customs besides executing a registered Deed of
Adoption dated 16.10.2008 which was registered as document NO. 3625 of
2008 on the file of District Registrar, South Chennai. It is stated that Yesu @
Yobu was employed as Sanitary worker in the Corporation of Chennai.
According to the petitioner, the whereabouts of his adopted father Yesu @
Yobu were not known to him for the past seven years and therefore, he has filed
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W.P.Nos.13227 of 2020 and 15022 of 2021
a suit for declaration in O.S. No. 6235 of 2018 and obtained a decree thereof on
02.12.2019. Based on the civil court decree, the petitioner submitted an
application on 20.02.2020 followed by a reminder dated 04.06.2020. As the
petitioner's representations did not evoke any response, he has originally filed
the above Writ Petition for a Mandamus. During the pendency of this writ
petition, the respondent passed an order dated 04.06.2020 rejecting the
petitioner's claim for issuing legal heir certificate on the ground that the
petitioner is not a Class I legal heir but he is a Class II heir.
3. The averments in WP No. 15022 of 2021 are to the effect that the
petitioners are the children of born to Govinda Chetty and Late. Sakunthala.
Apart from the petitioners, one Latha was also born to their parents. In other
words, the said Latha is the sister of the petitioners. The first petitioner
purchased a property bearing Flat No.4/116, A Type, 43rd Street, SIDCO
Nagar, Villivakkam measuring an extent of 462 square feet by way of a sale
deed dated 22.03.2003. Out of natural love and affection the first petitioner had
towards his siter Latha, he settled this property in her favour on 18.02.2010 by
means of a registered document No. 827 of 2010. While so, the petitioners
sister Latha died on 17.07.2020 as a bachelor. The petitioners therefore claim
that they are the surviving legal heirs to succeed to the estate of their sister G.
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W.P.Nos.13227 of 2020 and 15022 of 2021
Latha. They have submitted an application on 14.08.2020 along with necessary
supporting documents to prove their relationship with the deceased Latha.
However, by the impugned order, the respondent rejected the application of the
petitioners only on the ground that the petitioners are Class II legal heirs.
4. The learned counsel for the respective petitioners submitted that in
similar circumstances in WP (MD) No. 15901 of 2018 [N.R.Raja and others
v. the Tahsildar, Madurai South] by order dated 03.08.2018, this Court
directed the respondent therein to grant legal heir certificate to class II legal
heirs also. The relevant passage of the said order is usefully extracted below:
"2.This Court had an earlier occasion to deal with an identical issue in
W.P(MD) No.11721 of 2018, on 31.07.2018, and the relevant portion reads as
follows:-
“2. Before analyzing the validity of the impugned order, it would
appropriate to trace the powers of the second respondent in
refusing to issue a Legal heirship Certificate to the Class-II legal
heirs. There is no provision under the Registration of Birth
and Deaths Act, 1969, or any other Act or Rules, empowering the
Revenue Authorities to issue a Legal heirship Certificate. In the
year 1981, a one man committee in District Revenue
Administration suggested delegation of powers to the
Tahsildar/Deputy Tahsildar for issuance of a Legal heirship
Certificate and while accepting the recommendation, the Revenue
Department in G.O (Ms) No.2906, dated 04.11.1981, had
empowered the jurisdictional Tahsildar/Deputy Tahsildar to issue
Legal heirship Certificate. Subsequently, by Letter (Rt) No.1534,
dated 28.11.1991 issued by the Revenue Department, certain
conditions were imposed for issuance of Legal heirship Certificate,
wherein one of the conditions was that the Tahsildar should refrain
from issuing the Legal heirship Certificate to Class-II legal heirs
with a further direction to advise the applicant to approach the
Civil Court seeking for remedy. Certain other guidelines were also
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3.It is submitted that in view of the Letter (Rt) No.1534, dated
28.11.1991, the authorities had been refusing to issue Legal heirs
Certificate for Class-II legal heirs and advising them to approach
the Civil Court. The impugned order is one such order relying upon
Letter (Rt) No.1534, dated 28.11.1991.
4. Subsequently, this Court, in various orders passed in writ
petitions, have been deprecating the practice of the Tahsildars in
refusing to issue the certificate for class-II legal heirs. The orders
passed in some writ petitions are extracted hereunder:-
"(i). In M.Arumugam & Others vs. The Tahsildar,
Madurai South, Madurai and another reported in CDJ 2013
MHC 6017, it has been held as follows:-
“9. The petitioners are claiming themselves to be class II
heirs. The Tahsildar pleads his inability to consider the case, as
according to him, it would be very difficult to collect the
details of the class II heirs. I am not inclined to accept the said
submission.
10.The Revenue Department is having lower level
officers, who are familiar with the people living in the
concerned Village. There are revenue officers under the
Tahsildar. There are also village officers functioning in the
villages and they would be in a position to know the members
of the family. The village Administrative Officer is expected to
know each and every family of the village. He cannot plead
ignorance about the relationship. The village Administrative
Officer is the Revenue Co- ordinating Officer of the Revenue
Department. The Village Administrative Officer must keep a
close watch on the village and he should update his
information. The problem of issuing a legal heir certificate to
class II heirs could be resolves, in case a workable method is
adopted by the revenue authorities. Since enquiry has to be
made, the Tahsildar can direct the parties to produce birth
certificates indicating the relationship. The Tahsildar can also
conduct an enquiry in the village level through the Village
Administrative Officer. In case, at a later point of time, it is
turned out to be a false claim, it is open to the Tahsildar to can
the certificate and even criminal action can be taken. The
difficulty to identify the members of the class II heirs cannot
be a reason to reject the request for issuance of legal heir
certificates. Therefore I am of the view that the first
respondent was not justified in passing the impugned order.
Accordingly, the impugned order is quashed."
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W.P.Nos.13227 of 2020 and 15022 of 2021
(ii). In W.P.(MD)No.37214 of 2015 (T.S.Renuka Devi,
rep by her guardian and next friend K.Swaminathan vs. The
Tahsildar, Mambalam-Guindy Taluk, Chennai-78), it has been
observed as under:-
“5.Admittedly, Class I heirs of the said G.Parvathi
predeceased her. It is not in dispute that the father of the
petitioner is her only surviving legal heir. Therefore, as per the
Schedule appended to the Hindu Succession Act, 1956, the
petitioner being Class II legal heir, is entitled to succeed the
property left out by the said Parvathi, if no other direct legal
heir is available. In the enquiry, the respondent has also
admitted the same, but he refused to issue a certificate to the
petitioner. In my considered view, the order so passed by the
respondent is not sustainable and hence, the same is liable to
be set aside.
6.Accordingly, the writ petition is allowed and the order
dated 05.12.2013 passed by the respondent is set aside. The
petitioner is permitted to submit a fresh application along with
a copy of this order within a period of two weeks from the
date of receipt of a copy of this order. On such submission,
the respondent is directed to conduct enquiry by affording an
opportunity of personal hearing to the petitioner in accordance
with law, within a period of six weeks thereafter. No costs.
Consequently connected miscellaneous petition is closed."
(iii). In W.P.(MD)No.5586 of 2017 (R.Lokesh Kannan
Vs. The District Collector, Madurai District and anothers), it
has been held as follows:-
“5. It is the specific case of the petitioner that his brother
died as a bachelor and except the petitioner, there are no legal
heirs, since his parents have already passed away. In the
judgment referred by the learned counsel for the petitioner,
this Court has held that if Clause-I heirs are not live, Clause-II
heirs are entitled to get the legal heirship certificate from the
Competent Authority. Hence the application of the petitioner
cannot be rejected merely on the ground that there is no direct
legal heir of the deceased.
6.In view of the above facts, this writ petition is disposed
of directing the petitioner to submit a fresh application to the
second respondent enclosing this order copy and the orders
passed in the writ petition referred above, within a period of
two weeks from the date of receipt of the copy of this order.
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W.P.Nos.13227 of 2020 and 15022 of 2021
petitioner's application and pass orders on merits and in
accordance with law, in the light of the orders passed by this
Court as stated supra within a period of six weeks thereafter.
5.Sections 8 and 9 of the Indian Succession Act, 1925, stipulate the
mode of succession in expressive terms. As such, the respondents will
not be justified in refusing the issuance of Legal heirship Certificate in
favour of Class-II legal heirs, in the absence of Class-I legal heirs.
When the law stipulates the mode of succession, the second respondent
is duty bound to consider the same and conduct proper enquiry, in line
with the order of the descendants, specified under the Succession Act
or any other personal law for that matter.
6.When the law specifies the mode of succession, there is no
impediment on the part of the Tahsildar to issue Legal heirship
certificate as prescribed in the mode of succession. Nevertheless, in
cases, where there are serious rival claims for the heirships, which
cannot be considered, on the basis of the statement of the claimants
and which necessarily requires to be established through proper oral
and documentary evidences, it would be appropriate, to refer such
parties to the Civil Court of law. Such an exercise however should be
made only when the authority is satisfied that there is a rival claim for
heirships or the relationship of the heirs with the deceased is disputed.
In all other cases, the authorities are bound to issue Legal heirship
Certificate for the Class-II legal heirs also. It is needless to point out
that the certificates thus issued should be preceded by a proper enquiry
by the Revenue Authorities.
7.In the instant case, the respondents are not justified in denying the
legal heirship certificate of late Periyamadasamykonar only on the
ground that he did not have direct heirs. It is rather unfortunate that
even inspite of the several orders of this Court directing the
Tahsildar/Deputy Tahsildar to issue Legal heirship Certificate for the
Class-II heirs also, the respondents have chosen to rely upon an
outdated letter of the year 1991 and has been rejecting such
applications.
8.In the result, the impugned order dated 25.08.2016 is set aside and
consequently, the respondents herein are directed to conduct a proper
enquiry and issue Legal heirship Certificate of Late
Periyamadasamykonar to the petitioner, if he is otherwise entitled to.
Such an exercise shall be completed within a period of four weeks from
the date of receipt of copy of this order. This Writ Petition is allowed
accordingly. No costs."
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W.P.Nos.13227 of 2020 and 15022 of 2021
3. The above order is self-explanatory. As such, the respondent is not
justified in rejecting the petitioner's application on the sole ground that Late
N.R.Santha, does not have any direct legal heir.
4. In the result, the impugned order dated 08.03.2018 passed in
O.Mu.No.m2/251/2018, by the respondent, is set aside and consequently, the
respondent is directed to conduct a proper enquiry and issue Legal heirship
Certificate of Late N.R.Santha to the petitioners, if they are otherwise entitled
to. Such an exercise shall be completed within a period of four weeks from the
date of receipt of copy of this order. This Writ Petition is allowed accordingly.
No costs."
5. The learned counsel for the petitioners, in unison, placed reliance
on the order dated 06.03.2020 passed in WP No. 5883 of 2020 (P. Riza Ahmed
vs. The Tahsildar, Walajah Taluk, Walajah, Ranipet District) and contended
that in the aforesaid decision, this Court, after analysing the various decisions in
the field, has concluded that a Tahsildar is empowered to issue even Class II
legal heir certificate provided he is satisfied with the genuineness of the claim
made by the applicant after conducting an enquiry. Only in cases where the
Tahsildar is not satisfied with the genuineness of the claim, he can direct the
applicant to approach the competent Civil Court. The learned counsel for the
petitioners therefore prayed for allowing the writ petitions.
6. On the other hand, the learned Government Advocate appearing for
the respondents submitted that the orders of rejection were passed on the basis
of the Circular dated 24.06.2019 issued by the Government wherein it was
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W.P.Nos.13227 of 2020 and 15022 of 2021
specifically ordered that the Tahsildar are only empowered to issue legal heir
certificate for all direct legal heirs through online. Therefore, on the basis of the
aforesaid Circular No.11/2017 dated 09.08.2017 issued by the Revenue
Administration and Disaster Management and Mitigation Department, the
orders, which are impugned in these writ petitions, are proper. The learned
Government Counsel therefore prayed for dismissal of the writ petitions.
7. Heard the counsel for the respective petitioners and the learned
Government Counsel for the respondents. In both these writ petitions, the
petitioners have challenged an order of rejection passed by the respective
respondent, refusing to issue legal heir certificate to the petitioners on the
ground that the petitioners are not Class I legal heir of the respective deceased
but are Class II legal heir. Therefore, on the basis of the circular dated
09.08.2017 issued by the Principal Secretary/Commissioner of Revenue
Administration, the orders of rejection were passed.
8. The issue involved in these writ petitions is no longer res integra.
The question as to whether a Tahsildar is empowered to issue a legal heir
certificate to a Class II legal heir is settled by way of several judicial
pronouncements. In WP No. 5883 of 2020 dated 06.03.2020, mentioned supra,
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W.P.Nos.13227 of 2020 and 15022 of 2021
this Court has passed the following direction:-
"5. Admittedly, the petitioner is not the Class I legal
heir of the deceased Raziya Begum, being the brother, he is
only the Class II legal heir. However, as claimed by the
petitioner, the deceased is a married person and she has no
other legal heirs except her brother. Since in the absence of any
other Class I legal heir, there is no impediment for the
respondent/Tahsildar to consider the said request as per the
guidelines issued by the Government, which reads as follows:
1. As per the present procedure the Tahsildar has to issue
the legal heirship certificate to the direct heir.
2. The Tahsildars should avoid issuing legal heirship
certificate in respect of the following items mentioned below,
apart from the direct heirs and the applicants should be
instructed to get the certificate through the Civil Court.
a. If there are more than one wife/husband for the
deceased, and even if they have children and if it is evident that
there is a partition dispute among them.
b. When there is a condition to issue heir certificate for
the person, who has left the family for seven years by deeming
that person to be dead.
c. If a person is residing in other District, and does not
have the residence within the limits of the Taluk and if he is not
in possession of a house or property, and does not attend the
enquiry to give his statement to the Tahsildar.
d. If the deceased does not have children and brings up
other children.
6. Even as per the above guidelines, the
respondent/Tahsildar should avoid issuing legal heir certificate
falling under the above four categories only. Since the
petitioner does not fall under anyone of the above categories,
the impugned order is set aside and the matter is remitted back
to the respondent/Tahsildar to reconsider the claim of the
petitioner in the light of the observation stated supra and pass
appropriate orders on merits and in accordance with law, after
conducting enquiry and verifying the fact whether any other
legal heirs are available for the deceased, within a period of 8
weeks from the date of receipt of a copy of this order.
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With the above direction, this writ petition is disposed of.
No costs."
9. In another order passed by this Court on 22.12.2020 in WP No.
15403 of 2020 (V. Devan vs. The Tahsildar, Office of the Tahsildar, Chennai)
this Court, in para No.7 held that the respondents are not justified in denying the
legal heirship certificate of late. Periyamadasamy Konar only on the ground that
he did not have direct heirs. It is rather unfortunate that even inspite of the
several orders of this Court directing the Tahsildar/Deputy Tahsildar to issue
legal heir certificate for the Class II heirs also, the respondents have chosen to
rely upon an outdated letter of the year 1991 and has been rejecting such
applications.
10. Therefore, it is clear that the Tahsildar of a Taluk is not in any
manner restrained from issuing a Class II legal heir certificate in the absence of
Class I legal heir. All that is required is that the Tahsildar has to satisfy himself
as to the genuineness of the claim of the applicant who seeks for issuing a Class
II legal heir. For arriving at such satisfaction, he has to conduct an enquiry and
to go through the documentary evidence filed in support thereof. In case, there
is any dispute with regard to the status of Class II legal heir, then he can direct
the applicant to approach the Civil Court for relief. In the present case, the
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W.P.Nos.13227 of 2020 and 15022 of 2021
respective respondent has relied on the Circular No. 11/2017 dated 09.08.2017
to reject the applications of the respective petitioner. In the light of the above
judicial pronouncements made by this Court, this Court is of the view that the
Circular dated 09.08.2017 has no statutory force. Even otherwise, only in case
of dispute as to the status of an applicant as a Class I or Class II legal heir, the
Tahsildar can direct the applicant to approach the Civil Court and not in all the
cases where there is no dispute with respect to the status as Class I or Class II
legal heir.
11. In the light of the above, the orders of rejection dated 04.06.2020
and 24.04.2021, passed by the respective respondent in these writ petitions, are
set aside. The matter is remanded back to the respective respondent for fresh
consideration of the application submitted by the respective petitioner (s) for
issuing a Class II legal heir certificate. The respective respondent is directed to
conduct an enquiry, afford an opportunity of hearing to the respective petitioner
(s), consider the documentary evidence that may be submitted by the petitioner
(s) and thereafter pass an order on merits and in accordance with law as
expeditiously as possible, preferably within a period of six weeks from the date
of receipt of a copy of this order.
12. Accordingly, both the writ petitions are disposed of. No costs.
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W.P.Nos.13227 of 2020 and 15022 of 2021
Consequently, connected miscellaneous petition (s) is/are closed.
02.08.2021
Index : Yes/No
Internet : Yes/No
mrr/rsh
To
1. The Tahsildar,
Purasawakkam,
Chennai - 3
2. The Tahsildar,
Aynavaram Taluk,
Chennai District,
Chennai 600 102.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.13227 of 2020 and 15022 of 2021
R. MAHADEVAN, J
mrr/rsh
WP Nos.13227 of 2020
and 15022 of 2021
02.08.2021
https://www.mhc.tn.gov.in/judis/
