Madras High Court
Rajeswari vs The District Collector on 2 November, 2021
WP No. 23835 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.11.2021
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
W.P. No. 23835 of 2021
Rajeswari .. Petitioner
Versus
1. The District Collector
District Collector Office
No.62, Rajaji Salai, 4th Floor
Chennai – 600 001
2. The Tahsildar
Egmore Taluk
Chennai – 600 001
2. The Tahsildar
Tondiarpet Taluk
Chennai – 600 001 .. Respondents
Petition filed under Article 226 of the Constitution of India praying for
issuance of a Writ of Certiorarified Mandamus, calling for the records
pertaining to issuance of impugned order dated 25.10.2021 A2/761/2021
issued by the 3rd respondent and quash the same and consequently direct the
respondent to issue a class-II legal heir certificate in the petitioner name based
on the petitioner's representation dated 05.10.2020 to issue Class II Legal heir
certificate for the deceased sister Mrs. Anandanayagi @ Neelavathi in favour
of the petitioner and her sisters.
For Petitioner : Mr.K.R.Gunashekar
For Respondents : Mr.Stalin Abhimanyu
Government Counsel
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WP No. 23835 of 2021
ORDER
Mr. Stalin Abhimanyu takes notice for the respondents. By consent of
both parties, this writ petition is taken up for final disposal at the admission
stage itself.
2. It is stated by the petitioner that his parents namely Mr. Elumalai
and Ethirajammal were blessed with six children and they are (i) Rajeswari
(petitioner) (ii) Krishnaveni (iii) Thirupurasundari (iv) Lakshmi (v) Savithri
(vi) T. Anandanayagi @ Neelavathi. It is further stated that the petitioner's
father Elumalai died and his mother also died on 21.10.2013. One of the
sisters of the petitioner by name Anandanayagi @ Neelavathi was given in
marriage to Thulasingam. After marriage, the petitioner's sister Anandanayagi
@ Neelavathi died on 09.12.2014 and her husband Thulasingam also died on
26.05.2018 without any children. On the death of her sister Anandanayagi @
Neelavathi, the petitioner and her other sisters have become Class II legal heirs
to succeed her estate. Stating that the petitioner and her 4 sisters namely
Krishnaveni, Thirupurasundari, Lakshmi, Savitri are the only surviving class II
legal heir of the deceased sister Mrs. Anandanayagi @ Neelavathi, an
application dated 05.10.2020 seeking legal heirship certificate, was made to
the second respondent. However, without considering the provisions of law,
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WP No. 23835 of 2021
the respondent by endorsement dated 25.10.2021, rejected the said application,
based on the circular issued by the Commissioner of Revenue Administration,
dated 24.09.2018. Challenging the order of rejection dated 25.10.2021, the
petiitoner has filed this writ petition.
3. The learned counsel for the petitioner 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:
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
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WP No. 23835 of 2021
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."
(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."
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WP No. 23835 of 2021
(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.
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.
4. Adding further, the learned counsel 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 said order, 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. Thus, the learned counsel for the
petitioner prayed this Court to set aside the communication impugned herein
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WP No. 23835 of 2021
by allowing this writ petition.
5. On the other hand, the learned Government Counsel appearing for
the respondents submitted that the order of rejection was passed on the basis of
the Circular No.11/2017 in Rc.No.RA.5(3)/180/2017 dated 09.08.2017 issued
by the Principal Secretary / Commissioner of Revenue Administration,
Disaster Management and Mitigation Department, Chepauk, Chennai as well
as another Circular dated 24.09.2018 wherein it was specifically ordered that
the Tahsildars are empowered to issue legal heir certificate only in respect of
class I or direct legal heir. Therefore, based on the aforesaid Circulars, the
communication, which is impugned herein, is proper and it does not call for
any interference by this court.
6. Heard the counsel for both sides and perused the materials placed
before this court.
7. In this writ petition, the petitioner has challenged the endorsement
made by the third respondent through the communication dated 25.10.2021 on
the ground that there is no provision for the Tahsildar to issue legal heirship
certificate to the second class legal heir. For this purpose, the third respondent
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WP No. 23835 of 2021
placed reliance on the circular dated 24.09.2018 issued by the Commissioner
of Revenue Administration.
8. The issue involved herein 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 issued 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.
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WP No. 23835 of 2021
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
have been rejecting such applications.
10. Therefore, it is clear that the Tahsildar of a Taluk is not in any
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WP No. 23835 of 2021
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 third respondent has simply rejected the
petitioner's application seeking issuance of class II legal heirship certificate of
her deceased sister, placing reliance on the circular dated 24.09.2018 issued by
the Commissioner of Revenue Administration. Therefore, in the light of the
above judicial pronouncements, this Court is of the view that 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 such view of the matter, the impugned communication dated
25.10.2021 of the third respondent is set aside. The matter is remanded back to
the third respondent for fresh consideration. The third respondent is directed to
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WP No. 23835 of 2021
conduct an enquiry, afford an opportunity of hearing to the petitioner as well
as any other interested parties, consider the documentary evidence that may be
submitted by her and thereafter pass an order, on merits and in accordance
with law, as expeditiously as possible, preferably within a period of eight
weeks from the date of receipt of a copy of this order.
12. With the aforesaid direction, this writ petition stands disposed of.
No costs.
02.11.2021
Index : Yes/No
dhk/rsh
To
1. The District Collector
District Collector Office
No.62, Rajaji Salai, 4th Floor
Chennai – 600 001
2. The Tahsildar
Egmore Taluk
Chennai – 600 001
2. The Tahsildar
Tondiarpet Taluk
Chennai – 600 001
https://www.mhc.tn.gov.in/judis
WP No. 23835 of 2021
R.MAHADEVAN, J.
dhk
WP No. 23835 of 2021
02.11.2021
https://www.mhc.tn.gov.in/judis
