Madras High Court
Thilagavathi vs The Tahsildar on 27 August, 2021
W.P.Nos.13013 & 13420 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.08.2021
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P.Nos.13013 & 13420 of 2021
Thilagavathi ...Petitioner in WP.No.13013 of 2021
V.R.Pushpa Rathinam ...Petitioner in WP.No.13420 of 2021
Vs
The Tahsildar
Office of the Tahsildar,
Purasawalkam Taluk,
Chennai - 600 084.
...Respondent in WP.No.13013 of
The Thasildhar,
Thiruvallur Taluk,
Thiruvallur District.
...Respondent in WP.No.13420 of
Prayer in WP.No.13013 of 2021: Petition filed under Article 226 of the
Constitution of India, praying for issuance of a Writ of Certiorarified
Mandamus calling for records from the respondent vide
Na.Ka.No.A6/1499/2020 dated 05.05.2021 and quash same and
consequently direct the respondent to issue legal heir certificate to the
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W.P.Nos.13013 & 13420 of 2021
petitioner.
Prayer in WP.No.13420 of 2021: Petition filed under Article 226 of the
Constitution of India, praying for issuance of a Writ of Certiorarified
Mandamus to call for the records pertaining in proceedings vide
Na.Ka.No.2171/2021/A7 dated 05.05.2021 on the file of the respondent and
quash the same and consequently direct the respondent to issue the second
class legal heir ship certificate of late V.R.Rama Rathinam to the petitioner
and consequently direct the respondent.
For Petitioners : Mr. D.Murugan
in WP.No.13013 of 2021
: Mr.K.R.Gunashekar
in WP.No.13420 of 2021
For Respondents : Mr.G.Krishnaraja
Government Advocate in both WPs
COMMON ORDER
In both these writ petitions, challenge is to the orders 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.
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W.P.Nos.13013 & 13420 of 2021
2. The petitioner in WP No. 13013 of 2021 claims that her brother
T.K.Nathavel died as a bachelor on 01.04.2018 and her father and mother
pre-deceased him on 26.03.1991 and 14.11.2016. After his death, the
petitioner and her siblings are the only Surviving Class - II legal heirs and
hence, she applied for the legal Heir Certificate enclosing all the relevant
documents. Based on the application, an enquiry was conducted and the
respondent passed an order dated 05.05.2021 rejecting her application, by
relying on the Circular No.9/2019/Rc.No.RA.5(3)/180/2017 dated
24.09.2019 issued by the Additional chief Secretary/Commissioner of
Revenue Administration and concluded that since the petitioner is not the
direct legal heir of the deceased T.K.Nathavel, but only a Class II heir, the
respondent is not empowered to issue legal heir certificate.
3. The petitioner in WP No.13420 of 2021 claims that her parents are
Late Rajamanickam and Late.Samundeeswari. They died on 08.06.1997
and 19.12.2008 respectively. After the death of her parents, the petitioner
and two brothers and one sister are the only Surviving legal heirs. The
petitioner's second brother V.R. Rama Rathinam was working as Junior
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W.P.Nos.13013 & 13420 of 2021
Engineer (E) CCED I CPWD, Shastri Bhavan, Chennai - 600 006 and
attained the age of superannuation on 31.03.2011. After his retirement from
service, he died on 18.06.2018, as a bachelor. The petitioner's first brother
V.R.Raja Rathinam also died on 13.10.2019. After their death, the
petitioner and her one sister are the only Surviving Class - II legal heirs and
hence, they applied for legal Heir Certificate enclosing all the relevant
documents. Based on the application, an enquiry was conducted and the
respondent passed an order dated 05.05.2021 rejecting her application on
the ground that since the petitioner is not the direct legal heir of the deceased
V.R.Rama Rathinam, he is not empowered to issue a legal heir certificate to
the petitioner.
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:
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W.P.Nos.13013 & 13420 of 2021
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.13013 & 13420 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.
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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. On such receipt, the
second respondent shall consider the 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
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W.P.Nos.13013 & 13420 of 2021
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."
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
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W.P.Nos.13013 & 13420 of 2021
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 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 the orders of rejection passed by the respective
respondent, refusing to issue legal heir certificate to them 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
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W.P.Nos.13013 & 13420 of 2021
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, 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
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W.P.Nos.13013 & 13420 of 2021
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.
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.
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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 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 respective respondent has relied on
the Circular Nos. 11/2017 dated 09.08.2017 and 9/2019 dated 24.09.2019
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 Circulars dated 09.08.2017 & 24.09.2019 have 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
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with respect to the status as Class I or Class II legal heir.
11. In the light of the above, the orders of rejection, both dated
05.05.2021, 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.
27.08.2021
Index : Yes/No
Internet : Yes/No
av
To
1. The Tahsildar, Office of the Tahsildar,
Purasawalkam Taluk,
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W.P.Nos.13013 & 13420 of 2021
Chennai - 600 084.
2. The Thasildhar, Thiruvallur Taluk,
Thiruvallur District.
R.MAHADEVAN, J.
av
W.P.Nos.13013 & 13420 of 2021
27.08.2021
http://www.judis.nic.in
