Madras High Court
K.Sarojini Elango vs The District Collector on 12 January, 2021
W.P.(MD)No.165 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 06.01.2022
PRONOUNCED ON : 12.01.2022
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.(MD)No.165 of 2022
K.Sarojini Elango ... Petitioner
vs.
1.The District Collector,
Collectorate Campus,
Madurai District, Madurai.
2.The Tahsildar,
Office of the Tahsildar,
Madurai North Taluk, Madurai District.
3.The Additional Chief Secretary/Commissioner
Revenue Administration,
Government of Tamil Nadu, Chennai. ... Respondents
(R3 impleaded suo motu by order of this Court dated 12.01.2021)
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records relating to the rejection order passed on the application of the
petitioner for issuance of legal heir certificate of her brother
Ydavakrishnan alias C.V.Gokulakrishnan son of Late A.Venkatasamy
1/22
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Naidu in Na.Ka.7346/2021/A5, dated 13.12.2021 passed by the second
respondent and to quash the same and to direct the second respondent to
issue legal heir certificate to the petitioner within the time stipulated by
this Court.
For Petitioner :Mr.N.S.Karthikeyan
For Respondents :Mr.N.Satheesh Kumar
Additional Government Pleader
****
ORDER
This Writ Petition has been filed questioning the order refusing to
grant legal heirship certificate on the ground that with respect to class-II
heir, the Tahsildar, is not competent to grant legal heirship certificate. In
this connection, a reliance is placed on a circular issued by the Additional
Chief Secretary/Commissioner of Revenue Administration, Chennai.
Since a decision will have to be made with respect to the said circular, it
is only appropriate that the said official, namely, the Additional Chief
Secretary/Commissioner of Revenue Administration, Government of
Tamil Nadu, Chennai, is suo motu impleaded as respondent in the Writ
Petition. The Registry may carry out necessary amendments in the cause
title to the Writ Petition before issuing the order copy.
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2.The petitioner seeks legal heirship certificate of her brother, who
died a bachelor.
3.The issues raised in the Writ Petition have come to the
consideration of the Courts earlier and there have been instances where,
learned Single Judges have opined that if Class-II legal heirs approach
the revenue authorities/Tahsildar for issuing legal heirship certificate and
when there are no rival claimants or anybody contesting the status of the
applicant, then the Tahsildar after making due enquiry, must grant legal
heirship certificate. It had been stated that it is reasonably expected that
a Tahsildar or a Village Administrative Officer would know the particular
details of the families residing in the village and therefore, an obligation
is cast on such officers to examine the particulars stated in the
application seeking legal heirship certificate and if it is found to be
correct and true, the revenue officials can proceed further to issue legal
heirship certificate.
4.It was opined that there was no necessity to refer those parties to
the Civil Court, particularly, when there are no rival claimants.
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Institution of a suit would only be a cumbersome procedure and as a
matter of fact, since there are no rival claimants, it would only be an
exercise for the sake of it as there would no defendant questioning the
status of the plaintiff seeking legal heirship certificate. The trial itself
would only be perfunctory in nature, as the defendant/Tahsildar would
only be a formal party and the Court will have to go with the statement
made by the plaintiff. It was therefore, held by learned Single Judges of
this Court that instead of driving the parties to the Civil Court, the
Tahsildar can very well examine the issue and grant legal heirship
certificate.
5.In this connections, the following judgments can be referred to:
(i)In W.P(MD)No.15901 of 2018 [N.R.Raja and others Vs. The
Tahsildar, Madurai South], by its order dated 03.08.2018, this Court had
directed the respondent therein to grant legal heir certificate to Class – II
legal heirs also. In the said decision, the issue with respect to issuance of
legal heir certificate to Class – II legal heir had been elaborately dealt
with. The relevant portion is extracted hereunder:
“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,
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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 appended to the said letter
dated 28.11.1991.
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.”
(ii)In M.Arumugam & Others vs. The Tahsildar, Madurai South,
Madurai and another reported in CDJ 2013 MHC 6017, it had been
held as follows:-
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“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 Coordinating
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.”
(iii)In W.P.(MD)No.37214 of 2015 (T.S.Renuka Devi, rep by her
guardian and next fried K.Swaminathan vs. The Tahsildar, Mambalam
– Guindy Taluk, Chennai-78), it had 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
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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.”
(iv)In W.P.(MD)No.5586 of 2017 (R.Lokesh Kannan Vs. The
District Collector, Madurai District and another), it had 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 Class -I heirs are not live, Class-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.A reading of the extracted portions show that the learned Single
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Judges had opined that a Village Administrative Officer should be
familiar with the people living in the concerned village and therefore, a
workable method had to be adopted by the revenue authorities during the
course of enquiry and if there are contestants or if the informations
furnished are false, the parties will be directed to approach the Civil
Court and a criminal action can also be initiated. However, the thrust of
the judgment is that before rejecting the application seeking legal
heirship certificate on the ground that the applicant is a Class-II heir, a
preliminary enquiry must be done and if it is found that the facts
furnished are true, then the revenue authorities can proceed further to
issue legal heirship certificates as sought, and only when the facts are
disputed or there is a rival claim, the parties should be directed to go
before a Civil Court.
7.However, reference must also be made to a Division Bench
judgment of this Court, namely, in W.P.(MD)No.18477 of 2020 in J.Ravi
vs the District Collector, Trichy and others. By an order, dated
16.12.2020, the Division Bench of this Court while examining a public
interest litigation, wherein, a complaint was made that Tahsildars were
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issuing legal heirship certificates even when the deceased had two wives.
The Division Bench extracted in full circular issued by the Government.
“9. It is relevant to extract hereunder the Letter No.1534,
dated 28.11.1991, issued by the Special
Commissioner/Government Secretary, Revenue Department
St.George Fort, Chennai-9:
“ghh;it xd;wpy; fz;Ls;s murhizapy;
Fwpg;gpl;Ls;sgo tl;lhl;rpah;fs; thhpRr; rhd;wpjH;fs;
tHq;FtJ bjhlh;ghf rpy tHpKiwfs; tFf;f khepy
fzf;fhah; tHq;fpa[s;s Mnyhridapd; mog;gilapy; rpwg;g[
Mizah; kw;Wk; tUtha; eph;thf MizaUld; fye;J
Ma;t[ bra;ag;l;lJ.
2. tl;lhl;rpah;fs;> thhpRr; rhd;wpjH; tHq;Fjy;
bjhlh;ghd tHpKiwfs; (guidelines) kw;Wk; eilKiwfs;
(procedure) gw;wpMnyhrid tHq;fpaJld;> mt;thW
thhpRr; rhd;wpjH; tHq;f Xh; gl;oiaa[k; (format)
Fwpg;gpl;Ls;shh;. muR> thhpRr; rhd;wpjH; tHq;Fjh;
bjhlh;ghf rpwg;g[ Mizah; kw;Wk; tUtha; eph;thf
Mizah; tHq;fpa[s;s Mnyhridfisa[k; gl;loiaa[k;
(format) Vw;W mitfs; bray;Kiwg;gLj;j xg;g[jy;
mspf;fpwJ. mitfs; ,f;fojj;Jld; ,izf;fg;gl;Ls;sd.
mitfisj; jtwhJ gpd;gw;WkhW nfl;Lf;bfhs;fpnwd;.
3. rpy tl;lhl;rpah; tHq;Fk; thhpRr; rhd;wpjH;fspy;
“ MW khjj;jpw;F kl;Lnk bry;YgoahFk; (valid for six
months only)vd;Wk; “mit chpik ,ay; ePjpkd;wq;fspy;
bry;yhJ (not valid in any court of law)vd;Wk; epge;jid
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thrfq;fs; vGjg;gl;og;gjhf bjhpfpwJ. tl;lhl;rpah;fshy;
tHq;fg;gLk; thhpRr; rhd;wpjH;fisa[k; ePjpkd;wq;fshy; 1925
Mk; Mz;L ,e;jpa neuo thhpRr;rl;lj;jpd; fPH;
tHq;fg;gLk; neuo thhpRr; rhd;wpjH;fisa[k; rkkhff; fUj
KoahJ. nkYk; epge;jidfs; tpjpg;gjw;F tpjpKiwfspy;
tif ,y;iy. vdnt> thhpRr; rhd;wpjH; tHq;Fk;nghJ
nkny Fwpg;gpl;Ls;s epge;jidfs; vija[k; tpjpf;f ntz;lhk;
vdf; nfl;Lf;bfhs;fpnwd;.
4. nkw;fz;l Mizfspd; mog;gilapy;>
bjhlh;g[ila midj;J mYtyh;fSf;F jFe;j
mwpt[Wj;jq;fs; tHq;FkhWk; nfl;Lf;bfhs;fpnwd;.
5. ,f;fojj;jpidg; bgw;Wf;bfhz;likf;fhd
xg;g[ifia cld; mDg;gp itf;FkhWk; nfhUfpnwd;.”
10. Similarly, it is relevant to extract hereunder the
Circular No.11/2017, Rc.No.RA5(3)/180/2017, dated
09.08.2017 issued by the Principal Secretary/ Commissioner of
Revenue Administration, Disaster Management and Mitigation
Department, Chepauk, Chennai-600 005:
“ The Government have issued detailed
instructions vide G.O.(Ms) No.2006, Revenue
Department, dated 04.11.1981, G.O.(Ms) No.581,
Revenue Department, dated 03.04.1987 and
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Government letter No.1534, Revenue Department,
dated 28.11.1991 on the guidelines to be followed for
issue of Legal Heir Certificate manually.
2) It is proposed to issue the Legal Heir
Certificate through online web based application in
addition to the other Revenue certificates. In order to
enable quicker processing and for effective
implementation, the following procedures and
guidelines are issued to be followed.
3.Direct Legal heir
Direct Legal heirs are sons, daughters, husband,
widows, mothers, sons of a pre-deceased son, widows
of a pre-deceased son, son of a pre-deceased sons of a
predeceased son, and widows of a pre-deceased son of
a predeceased son. Son of a predeceased daughter of a
predeceased daughter, daughter of a predeceased
daughter of a predeceased daughter, daughter of a
predeceased son of a predeceased daughter, daughter
of a predeceased daughter of a predeceased son.
4.Procedure to be followed:
Legal Heir Certificates shall be issued by
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Tahsildars for all direct legal heirs applying for
certificate through online. The petitioner can apply
electronically from any of the CSCs or online to the
Tahsildar in whose jurisdiction, the deceased person
ordinarily resided before his death. (If the person has
resided for less than 6 months, then the Tahsildar shall
obtain a report from the Tahsildar in whose
jurisdiction the deceased resided for more than a year).
5.The applicant should compulsorily submit the
following details while submitting the application:
* Death certificate of the deceased or Late
Registration Certificate from RDO.
* Any one of the following documents should
be submitted as Proof of residence of the
deceased person.
(i) Aadhaar Card
(ii)Vote ID Card
(iii)Passport
(iv)Bank Pass Book/Postal Savings
Book
(v) Driving License
(vi)Pension payment Order
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5-1) If any one spouse survives-then they shall be the
applicant and submit following documents:
* Marriage Registration Certificate or Passport
or Voter ID orAadhaar cards or NPR document should
be submitted to establish relationship.
* Birth Certificate of all children or T.C., of all
children
* Self declaration of the spouse indicating all
other legal heirs (including Mother-in-law if the
wife is the applicant)
5-2) If parents are deceased, then any one child shall
be the applicant and submit the following documents:
a) If applicant is a Major
* Death certificate of parents
* Birth certificate or Community Certificate or
Passport or Aadhaar (all eligible heirs) or T.C., or
NPR or Employee Service Record.
b) If applicant is a Minor, Guardian can apply
and submit the following documents:
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* Death certificate of parents
* Birth certificate or T.C., or NPR or Employee
Service Record or Community certificate or Passport
or Voter ID or Aadhaar of all eligible heirs.
* Guardianship order issued by the Hon'ble Civil
Court to prove relationship to the heirs.
5-3) In case of unmarried Children-Parents or
Siblings shall be the applicant and submit the
following documents:
* Death certificate of deceased.
* Any proof to establish relationship of deceased
(ie.,) Birth certificate/T.C., of deceased etc.,
* Self-declaration of the parents/siblings.
6) Legal heir application will be processed by the
following system:
On an application of fee of Rs.60/-, the applicant
shall apply at the CSC or online, the certificate will be
issued within 15 working days.
The work flow will be CSC - VAO – RI – HODT –
Tahsildar
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The VAO must verify the documents and
recommended with reasons for acceptance or rejection
and forward to the Revenue Inspector in 5 Days.
Revenue Inspector has to enquire in 4 days and the
certificate will be issued by Tahsildar in 6 days on
receipt of report from the RI after conducting necessary
enquiry.
The applicant can download the legal certificate
from CSC or from anywhere on receipt of an SMS.
The District website should have an exclusive
window for viewing Taluk wise issued legal heirship
certificates.
A copy of the issued Legal Heir Certificate
should be marked to Department of Registration to be
linked to the Reginet Software.
7.General Instructions:
Tahsildars shall not issue Legal Heir Certificates
for the following cases and to inform the applicants to
approach the Competent Court for obtaining the Legal
Heir Certificates.
(i) If more than one wife/husband exist for the
deceased.
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(ii) When there is a dispute for
settlement/partition of properties of the deceased.
(iii) In case of the person treated as death who is
missing for the period of 7 years or staying away
from the family.
(iv) In the case of adopted child or No children.
(v) No certificate, shall be issued under Indian
Succession Act, 1925.
8) Appeal Provision:
If any legal heir disputes the issued Legal Heir
Certificate, an appeal petition shall be filed to the
respective Revenue Divisional Officer within a period
of one year from the date of issue of the certificate for
making alterations, corrections – deletions or
inclusions.
9) Power of Revision:
The power of revision lies with the District
Collector and Revision Petition shall be filed by the
applicant within a period of 3 years from the date of
issue of the appeal order.
All the District Collectors are instructed to
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follow the circular and communicate to the concerned
subordinate officers and instruct them to follow the
procedures and guidelines scrupulously without fail.
The receipt of the circular may be acknowledged.
Sd/- K.Satyagopal
Principal Secretary/
Commissioner of Revenue Administration.”
12. The above proceedings would make it clear that the
Tahsildars have got no power and jurisdiction to issue the Legal
Heir Certificates, when the deceased had two wives during his
life time and the parties have to be directed to approach the
competent civil Court. Therefore, it is made clear that the
Tahsildars shall not issue any Legal Heir Certificate contrary to
the above proceedings.
8.It is thus seen that the Division Bench of this Court had made it
very clear that when the deceased had two wives during his life time, the
parties will have to approach the Civil Court seeking legal heirship
certificate.
9.However, I hold, following the reasonings of the consistent view
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in the judgment cited supra that when a brother or sister apply for legal
heirship certificate of their deceased brother or sister who died without
leaving any Class-I heir, then the same can be examined by the Tahsildar
and legal heirship certificate can be issued, if there are no rival claimants.
10.It is for that purpose, this Court had suo motu impleaded the
Additional Chief Secretary/Commissioner of Revenue Administration,
Government of Tamil Nadu, Chennai. The said authority had issued the
circular and a direction is issued to the said official to re-visit the circular
and if there are no rival claimants, direct the Tahsildars to proceed to
issue legal heirship certificate.
11.I hold that though in law, a brother or a sister would only be a
Class-II legal heir, but if the deceased died a bachelor or a spinster or
after marriage had died issueless and the surviving spouse had also
predeceased him/her, then forcing a party to go to a Civil Court
particularly when there is no defendant to contest the claim, would only
be encouraging a legal fiction to be created. The suit would only be a
mockery, as it would still be a plaint filed by plaintiff with no defendant
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and the Court will also proceed only on the basis of the facts pleaded and
pass an order in accordance with the relief sought.
12.A judicial proceeding may not always be the proper forum to
check bona fide of an application seeking legal heirship certificate.
Rather the Tahsildar and/or the Village Administrative Officer as opined
in the judgments referred supra would know the details of the family and
would be in a better position to examine whether the applicant has come
forward with a bona fide application or not. There cannot be a shifting of
this burden to the Civil Court in all cases and the revenue authorities
have a duty to discharge in this regard. The Village Administrative
Officers are in place only for this particular purpose. They have a duty
and responsibility to discharge also. Therefore, the Additional Chief
Secretary/the Commissioner of Revenue Administration is directed to
revisit the circular as it had only resulted in driving an unfortunate
claimant from pillar to post, having been driven to a Civil Court.
13.I would therefore issue the following directions:
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13.1.A direction is given to the Tahsildar to examine the cases of
the applicant in the following manner:
“If it is an issue of claiming legal heirship certificate for a
deceased brother and when there are no rival claimants, make necessary
enquiry and proceed to issue legal heirship certificate.”
14.With the above directions, this Writ Petition is allowed. No
costs.
Index :Yes / No 12.01.2022
Internet :Yes
cmr
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W.P.(MD)No.165 of 2022
To
1.The District Collector,
Collectorate Campus,
Madurai District, Madurai.
2.The Tahsildar,
Office of the Tahsildar,
Madurai North Taluk, Madurai District.
3.The Additional Chief Secretary/Commissioner
Revenue Administration,
Government of Tamil Nadu, Chennai.
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W.P.(MD)No.165 of 2022
C.V.KARTHIKEYAN, J.
cmr
Order made in
W.P.(MD)No.165 of 2022
12.01.2022
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