Madras High Court
Mrs.S.Rajamalathi vs The District Collector on 1 October, 2021
W.P.No.21230 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.10.2021
Coram
The Honourable Mr.Justice R.MAHADEVAN
W.P.No.21230 of 2021
Mrs.S.Rajamalathi
...Petitioner
Versus
1.The District Collector,
Rajaji Salai, Fourth Floor,
62, Beach Road, George Town,
Chennai, Tamil Nadu – 600 001.
2.The Tahsildar,
The Tahsildar Office,
Egmore, Chennai – 600 031.
3.S.Rajaseelan
4.S.Rajesh Kumar
5.S.Rajmohan
6.S.Rajkumar
...Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorarified mandamus calling for the
impugned notice dated 02.09.2021 vide E4/1097/2021 passed by the 2nd
1/16
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W.P.No.21230 of 2021
respondent and quash the same and consequently, direct the 2nd respondent
to issue legal heirship certificate in name of petitioner and 3rd to 6th
respondent herein.
For Petitioner : M/s.Nathan and Associates
For Respondents – 1 & 2: Mr.Stalin Abhimanyu,
Government Counsel
ORDER
Mr.Stalin Abhimanyu, learned Government Counsel, takes notice for
the respondents 1 and 2. By consent of both the parties, this writ petition is
taken up for final disposal at the time of admission itself.
2.This writ petition has been filed to quash the order dated
02.09.2021 passed by the second respondent and to direct the second
respondent to issue legal heirship certificate indicating the petitioner and
the respondents 3 to 6 as legal heirs of the deceased D.Yasodha.
3.It is the case of the petitioner that one D.Yasodha, W/o.Damodaran
and sister of one Swarnamuthu @ Muthu, was a renowned person in
politics. She has no issues, out of wedlock. She died intestate on 27.12.2020
leaving behind no class I legal heir, other than the heirs and successors of
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W.P.No.21230 of 2021
the said Swarnamuthu. Her parents predeceased her. According to the
petitioner, she and the respondents 3 to 6 are the children of the said
Swarnamuthu and class II legal heirs of the deceased D.Yasodha. Hence,
she made an application on 21.06.2021 to the second respondent requesting
to issue legal heirship certificate of the deceased. However, by order dated
02.09.2021, the said application was rejected, stating that there is no direct
legal heir for the deceased; the petitioner and the respondents 3 to 6 are only
the class II legal heirs; and as per circular No.9/2019 in
Rc.No.RA.5(3)/180/2017 dated 24.09.2019 issued by the Commissioner of
Revenue Administration, the Tahsildar has no power to issue class II legal
heir certificate. Therefore, this writ petition.
4.The learned counsel for the petitioner submitted that in similar
circumstances, this Court had passed an order in WP (MD) No. 15901 of
2018 [N.R.Raja and Ors. Vs. the Tahsildar, Madurai South] dated
03.08.2018, wherein, it directed the respondent therein to issue legal heir
certificate to the Class II legal heirs also. The relevant portion of the said
order is usefully extracted below:
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W.P.No.21230 of 2021
"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 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. The orders passed in some writ
petitions are extracted hereunder:-
"(i) In M.Arumugam & Others vs.
The Tahsildar, Madurai South, Madurai and
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W.P.No.21230 of 2021
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
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W.P.No.21230 of 2021
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."
(iii) In W.P.(MD)No.5586 of 2017
(R.Lokesh Kannan Vs. The District
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W.P.No.21230 of 2021
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.””
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.
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W.P.No.21230 of 2021
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."
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
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W.P.No.21230 of 2021
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.Adding further, the learned counsel placed reliance on the order
passed by this Court in W.P.No.5883 of 2020 (P.Riza Ahmed Vs. The
Tahsildar, Walajah Taluk, Walajah, Ranipet District) dated 06.03.2020
and contended that in the aforesaid order, this Court, after analyzing 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.
He therefore prayed that this writ petition may be allowed.
6.On the other hand, the learned Government Counsel appearing for
the respondents 1 & 2 submitted that the respondent has issued the
impugned rejection notice, only, on the basis of the Circular dated
24.09.2019 issued by the Additional Chief Secretary/Commissioner of
Revenue Administration, in which, it was specifically ordered that the
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W.P.No.21230 of 2021
Tahsildars are only empowered to issue legal heir certificate for all direct
legal heirs. He further submitted that on the basis of the aforesaid Circular,
the proceedings issued by the respondent herein is proper and therefore, this
writ petition is liable to be dismissed.
7.Heard the learned counsel on both sides and perused the materials
placed before this Court.
8.In this writ petition, the petitioner has challenged the proceedings
bearing No.E4/1097/2021 dated 02.09.2021, issued by the second
respondent, in and by which, the second respondent has refused to issue the
legal heir certificate to the petitioner and the respondents 3 to 6 on the
ground that they are not Class I legal heirs of the deceased D.Yasodha but
Class II legal heirs. The aforesaid impugned proceedings was issued only
on the basis of the Circular No.9/2019, R.C.No.RA5(3)/180/2017, dated
24.09.2019, issued by the Additional Chief Secretary/Commissioner of
Revenue Administration.
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W.P.No.21230 of 2021
9.The issue involved in this writ petition 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 W.P.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 not in possession of a
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W.P.No.21230 of 2021
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."
10.In yet another case of similar nature, this Court passed an order in
W.P.No.15403 of 2020 (V.Devan Vs. The Tahsildar, Office of the
Tahsildar, Chennai) dated 22.12.2020, wherein, particularly, in paragraph
No.7, it 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 legal heirs also, the second
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W.P.No.21230 of 2021
respondent has chosen to rely upon an outdated letter of the year 1991 and
has rejected the request made by the petitioner herein, for issuance of Class
II legal heir certificate.
11.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 certificate. 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
competent Civil Court for relief. In the present case, relying on the Circular
No.9/2019, R.C.No.RA5(3)/180/2017, dated 24.09.2019, issued by the
Additional Chief Secretary/Commissioner of Revenue Administration, the
2nd respondent has rejected the petitioner's application. In the light of the
above judicial pronouncements, this court is of the opinion that the Circular
dated 24.09.2019 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
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W.P.No.21230 of 2021
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.
12.For the discussions held above, the impugned proceedings bearing
No.E4/1097/2021 dated 02.09.2021, issued by the respondent is set aside.
The matter is remanded back to the second respondent Tahsildar for fresh
consideration of the application submitted by the petitioner for issuing a
Class II legal heir certificate. The second respondent Tahsildar is directed
to conduct an enquiry, afford an opportunity of hearing to the petitioner as
well as the respondents 3 to 6, consider the documentary evidence that may
be submitted by the petitioner 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.
13.This Writ Petition stands disposed of with the above directions.
No costs.
01.10.2021
mrr
Index : Yes/No
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W.P.No.21230 of 2021
To
1.The District Collector,
Rajaji Salai, Fourth Floor,
62, Beach Road, George Town,
Chennai, Tamil Nadu – 600 001.
2.The Tahsildar,
The Tahsildar Office,
Egmore, Chennai – 600 031.
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W.P.No.21230 of 2021
R.MAHADEVAN, J.
mrr
W.P.No.21230 of 2021
01.10.2021
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