S. Arasi vs The Tahsildar
2021 Latest Caselaw 19507 Mad

                                                                                     WP No.20381 of 2021


                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 23.09.2021

                                                         CORAM

                              THE HONOURABLE MR. JUSTICE R. MAHADEVAN

                                                  W.P. No. 20381 of 2021

                   S. Arasi                                                              .. Petitioner

                                                          Versus

                   The Tahsildar,
                   Tambaram Taluk Office
                   Tambaram Sanatorium
                   Chennai - 600 047                                                  .. Respondent

                           Petition filed under Article 226 of the Constitution of India, praying for
                   issuance of a Writ of Certiorarified Mandamus calling for the entire records of
                   the respondent in connection with the impugned order of rejection in
                   Na.Ka.No.1923/2021/A7, dated 18.08.2021 and quash the same as arbitrary
                   and unreasonable and consequently direct the respondent to issue legal heir
                   certificate of the petitioner's brother Late. Arun, based on the petitioner
                   application dated 11.11.2020

                   For Petitioner             :       Mr. K. Balasubrmaniam
                   For Respondent             :       Mr. Stalin Abhimanyu
                                                      Government Counsel

                                                        ORDER

Mr.Stalin Abhimanyu, learned Government Counsel takes notice for the

respondent. By consent of both the parties, the writ petition is taken up for

final disposal at the time of admission itself.

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WP No.20381 of 2021

2. The petitioner claims that she and her brother Arun are the

children born to her parents Thiru.G.Sivaraman and S.Rajammal. It is further

stated that her parents passed away on 25.05.2016 and 16.05.2019

respectively. Further, her brother S. Arun died as a bachelor on 21.05.2018.

Since the petitioner is the class II surviving legal heir of the deceased to inherit

his movable and immovable properties, she submitted a representation along

with necessary documents to the respondent for issuance of legal heirship

certificate. But, the respondent, rejected the application stating that the

petitioner is the sister of the deceased and she is not the Class I legal heir and

the petitioner was directed to approach the competent civil court. Feeling

aggrieved by the same, the petitioner has come up with 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:-

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WP No.20381 of 2021

"(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

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WP No.20381 of 2021

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 Collector, Madurai District and anothers), it has been held as follows:-

“5. It is the specific case of the petitioner that his http://www.judis.nic.in brother died as a bachelor and except the petitioner,

WP No.20381 of 2021

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.

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 http://www.judis.nic.in and documentary evidences, it would be appropriate, to

WP No.20381 of 2021

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."

4. The learned counsel for the petitioner 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 http://www.judis.nic.in

WP No.20381 of 2021

is not satisfied with the genuineness of the claim, he can direct the applicant to

approach the competent Civil Court. The learned counsel for the petitioner

therefore 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 on the basis of

the Circular dated 09.08.2017 issued by the Government wherein it was

specifically ordered that the Tahsildar is only empowered to issue legal heir

certificate for all direct legal heirs through online. Therefore, on the basis of

the aforesaid Circular No.11/2017 dated 09.08.2017 issued by the Revenue

Administration and Disaster Management and Mitigation Department, the

order, which is impugned in this writ petition, is proper. The learned

Government Counsel therefore prayed for dismissal of the writ petition.

6. Heard the counsel for the petitioner and the learned Government

Counsel for the respondent. In this writ petition, the petitioner has challenged

an order of rejection dated 18.08.2021 passed by the respondent, refusing to

issue legal heir certificate to the petitioner on the ground that she is not Class I

legal heir of the deceased but a Class II legal heir. Therefore, on the basis of

the circular dated 09.08.2017 issued by the Principal Secretary/Commissioner http://www.judis.nic.in

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of Revenue Administration, the order of rejection was passed.

7. 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 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.

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.

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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."

8. 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 was further observed in that order that 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

heir also, the respondents have chosen to rely upon an outdated letter of the

year 1991 and has been rejecting such applications.

9. 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 http://www.judis.nic.in

WP No.20381 of 2021

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 respondent has relied on the Circular No. 11/2017 dated 09.08.2017

to reject the application of the petitioner. In the light of the above judicial

pronouncements made by this Court, this Court is of the view that the Circular

dated 09.08.2017 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

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.

10. In the light of the above, the order of rejection dated 18.08.2021

in Na.Ka.No.1923/2021/A7 passed by the respondent in this writ petition is set

aside. 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 directed to conduct an enquiry, afford an http://www.judis.nic.in

WP No.20381 of 2021

opportunity of hearing to her, 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 six weeks from

the date of receipt of a copy of this order.

11. Accordingly, the writ petition is disposed of. No costs.

                                                                                            23.09.2021
                   Index         : Yes/No
                   Internet      : Yes/No

                   mrr/rsh

                   To

                   The Tahsildar,
                   Tambaram Taluk Office
                   Tambaram Sanatorium
                   Chennai - 600 047




http://www.judis.nic.in



                                  WP No.20381 of 2021


                           R. MAHADEVAN, J




                                           mrr/rsh




                           WP No. 20381 of 2021



                                      23.09.2021




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