Madras High Court
S. Jeyakanth vs The Tahsildar on 7 October, 2021
WP No.18333 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.10.2021
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P. No. 18333 of 2021
S. Jeyakanth .. Petitioner
Versus
The Tahsildar
Taluk Office
Hosur Taluk
Krishnagiri District .. Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, to call for the records of
the Impugned Rejection Order letter Na.Ka.1355/2021/B1 dated 15.03.2021
issued by the respondent quash the same as illegal and consequently direct the
respondent to issue legal heir certificate based on his sister application dated
11.01.2021 to him and his siblings and for other reliefs within a period
stipulated by this court.
For Petitioner : Mr.S. Atham Ali
For Respondent : Mr.G. Krishnaraja
Government Counsel
ORDER
The prayer made in this writ petition is to issue a Writ of Certiorarified
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WP No.18333 of 2021
Mandamus, calling for the records relating to the proceedings bearing No.
Na.Ka.1355/2021/B1 dated 15.03.2021 issued by the respondent, quash the
same and consequently direct the respondent to issue legal heir certificate
based on the petitioner's sister's application dated 11.01.2021 within a period
to be stipulated by this court.
2. According to the petitioner, his parents died on 16.06.1998 and
03.08.2019 respectively. He has two brothers and one sister; and all of them
got married, except one brother by name S.Lakshmikanth. After the death of
his younger brother S.Lakshmikanth on 04.12.2019, the petitioner's sister
Nandhini made an application dated 11.01.2021 to the respondent seeking
class II legal heirship certificate. Upon receipt of the same, the Revenue
Inspector conducted enquiry and filed a report on 15.03.2021 to the effect that
the petitioner and his siblings are the class II legal heirs of the deceased.
However, the respondent by proceedings dated 15.03.2021, rejected the said
application for issuance of legal heir ship certificate and directed the applicant
to obtain the said certificate through competent civil court. Feeling aggrieved,
the petitioner has preferred this Writ Petition with the aforesaid prayer.
3. The learned counsel for the petitioner submitted that in similar
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WP No.18333 of 2021
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:
"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:-
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"(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."
(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
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WP No.18333 of 2021
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.
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
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WP No.18333 of 2021
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 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
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WP No.18333 of 2021
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."
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 prayed to set
aside the proceedings impugned herein by allowing this writ petition.
5. On the other hand, the learned Government Counsel appearing for
the respondent submitted that the order of rejection was passed on the basis of
the Circular No.9/2019 in Rc.No.RA.5(3)/180/2017 dated 24.09.2019 issued
by the Additional Chief Secretary / Commissioner of Revenue Administration,
Disaster Management and Mitigation Department, Chepauk, Chennai, 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 as mentioned in the
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WP No.18333 of 2021
schedule under Section 8 of the Hindu Succession Act. Therefore, the
proceedings impugned herein, does not call for any interference by this court.
6. Heard both sides and perused the materials placed before this
court.
7. In this writ petition, the petitioner has challenged the proceedings
passed by the respondent, refusing to issue legal heir certificate on the ground
that the petitioner and his siblings are not Class I legal heirs of the deceased,
but are Class II legal heirs and hence, they were directed to approach the
competent civil court.
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
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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.
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)
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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
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
sister's application seeking issuance of class II legal heirship certificate, as
they are not 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
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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
15.03.2021 passed by the respondent is set aside. The matter is remanded back
to the respondent for fresh consideration. The respondent is 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 them 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.
07.10.2021
Index : Yes/No
Internet : Yes/No
dhk
https://www.mhc.tn.gov.in/judis/
WP No.18333 of 2021
R.MAHADEVAN, J.
dhk/rk
To
The Tahsildar
Taluk Office
Hosur Taluk
Krishnagiri District
WP No. 18333 of 2021
07.10.2021
https://www.mhc.tn.gov.in/judis/
