Madras High Court
R. Nagarajan vs The Thasildar on 7 October, 2021
WP No.12413 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.10.2021
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P. No. 12413 of 2021
R. Nagarajan .. Petitioner
Versus
The Thasildar
Villupuram
Villupuram District .. Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the records of
the respondent proceedings in Mu.Mu.A2/2714/2020 dated 21.04.2021 and
quash the same and thereby direct the respondent to issue the legal heir
certificate to the petitioner consequent on the death of the petitioner's brother
on 08.10.2020.
For Petitioner : Mr.N.Suresh
For Respondent : Mr.Stalin Abhimanyu
Government Counsel
ORDER
The prayer made in this writ petition is to issue a certiorarified
mandamus, calling for the records relating to the proceedings in
Mu.Mu.No.A2/2714/2020 dated 21.04.2021 passed by the respondent, quash
the same and consequently, direct the respondent to issue Class II legal
heirship certificate to the petitioner, on the death of his brother Ramesh.
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WP No.12413 of 2021
2.According to the petitioner, his parents Ragothaman and Rangammal
have two sons and a daughter viz., Ramesh, Nagarajan (petitioner) and
Lakshmi. After the death of the petitioner's father on 25.02.2008, the petitioner
obtained a legal heir certificate stating that himself and his sister are the
surviving legal heirs, as his mother and elder brother Ramesh predeceased his
father. Subsequently, stating that his brother R.Ramesh died as a bachelor on
08.10.2020 and his parents died long back, the petitioner made application to
the respondent on 23.02.2021, requesting to issue a certificate to the effect that
himself and his sister Lakshmi are the only surviving class II legal heir of the
deceased brother. After conducting enquiry, the Revenue Inspector also
submitted a report dated 10.03.2021 to the respondent that the petitioner and
his sister are the class II legal heir of the deceased. However, the respondent
by the impugned proceedings dated 21.04.2021, rejected the said application
on the ground that the petitioner and his sister are not the direct legal heirs of
the deceased and hence, they have to approach the competent civil court for
obtaining legal heirship certificate, as they are the class II legal heirs. Feeling
aggrieved, the petitioner has come up with this writ petition for the aforesaid
relief.
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
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WP No.12413 of 2021
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
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 another reported in CDJ 2013
MHC 6017, it has been held as follows:-
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WP No.12413 of 2021
“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."
(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
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WP No.12413 of 2021
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.
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
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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."
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."
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WP No.12413 of 2021
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 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. Therefore, the learned counsel prayed for
allowing the writ petition.
5.On the other hand, the learned Government Counsel appearing for the
respondent submitted that the order of rejection was passed by the respondent,
based on the basis of the circular dated 24.06.2019 issued by the Government,
wherein it was specifically ordered that the Tahsildars are only empowered to
issue legal heir certificate for all direct legal heirs through online and
therefore, the same is perfectly correct, warranting no interference at the hands
of this court.
6.Heard both sides and perused the materials placed on record.
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WP No.12413 of 2021
7.In this writ petition, the petitioner has challenged the order passed by
the respondent, refusing to issue legal heir certificate to the petitioner on the
ground that the petitioner and his sister are not Class I legal heir of the
deceased, but are Class II legal heirs.
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 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.
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WP No.12413 of 2021
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.
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.
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WP No.12413 of 2021
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 respondent has simply rejected the petitioner's application
on the ground that they are not the direct legal heirs of the deceased.
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 proceedings dated
21.04.2021 passed by the respondent is set aside and the matter is remanded
back to the respondent for fresh consideration of the application submitted by
the petitioner for issuing a Class II legal heir certificate. The respondent is
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WP No.12413 of 2021
directed to 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 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.
12.Accordingly, the writ petition stands disposed of. No costs.
07.10.2021
Index : Yes/No
Internet : Yes/No
dhk
To
The Thasildar
Villupuram
Villupuram District
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WP No.12413 of 2021
R.MAHADEVAN, J.
dhk/rk
WP No. 12413 of 2021
07.10.2021
https://www.mhc.tn.gov.in/judis/
