V.Devan Vs The Tahsildar

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W.P.No.15403/2020

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 22.12.2020

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CORAM

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THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA

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W.P.No.15403 of 2020

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V.Devan .. Petitioner Vs. The Tahsildar, Office of the Tahsildar, Solinganallur Taluk, Chennai. .. Respondent * * *

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Prayer : Writ Petitions filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records and quash the proceedings of the respondent in O.Mu.No.1405/2020/A2, dated 29.07.2020 and consequently direct the respondent to issue the legal heir certificate.

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For Petitioner : Mr.C.D.Johnson

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For Respondent : Mr.P.V.Selvakumar, Additional Government Pleader

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O R D E R

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Seeking to quash the order of the respondent dated 29.07.2020

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made in O.Mu.No.1405/2020/A2 and a consequential direction to the respondent to issue legal heir certificate, the petitioner has instituted this writ petition.

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https://www.mhc.tn.gov.in/judis/

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W.P.No.15403/2020

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It is the case of the petitioner that his father one Varadharajulu and one Jayaraman are brothers. Jeyaraman and his wife Sulochana had no issues. The petitioner and his four sisters were brought up by Jayaraman and Sulochana, after the demise of their father Varadharajulu on 06.03.1994. His paternal uncle Jayaraman passed away on 08.06.1999 leaving behind his wife Sulochana. Sulochana died on 27.04.2009. In such circumstances, the petitioner filed an application before the respondent seeking legal heir certificate of Jeyaraman attaching various documents. However, the respondent passed the impugned order rejecting the said request. The same is questioned in this writ petition.

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The respondent filed the counter-affidavit seeking to sustain the impugned order on the ground that the petitioner and his sisters, being "Class II Legal heirs", the revenue officials are not entitled to issue the legal heirship certificate in terms of the Circular No.9 of 2019 in Rc.No.RA.5(3)/180/2017, dated 24.09.2019, which is the reason why, they were directed to approach the competent civil court. The respondent has not disputed the factual position narrated above.

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Heard both sides and perused the materials on record.

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W.P.No.15403/2020

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Before delving further into the factual position, it is relevant to

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state that this Court in J.Babu V. The Tahsildar, Tharangampadi Taluk, Nagapattinam District, W.P.No.5940 of 2017, dated

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27.07.2020 , relied upon the following earlier judgments :

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"17. This Court in W.P.(MD)No.15901 of 2018, dated 03.08.2018 (N.R.Raja and others V. The Tahsildar, Madurai South, Collector Office, Madurai), reproduced the relevant portions of the earlier orders of this Court on the subject issue and held in the following manner :

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"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:-

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“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

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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.

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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.

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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:-

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“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.

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10.The Revenue Department is having lower level officers, who are familiar with the people living in the

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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."

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(ii). In W.P.(MD)No.37214 of 2015 (T.S.Renuka Devi, rep by her guardian and next fried K.Swaminathan vs. The Tahsildar, Mambalam-

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Guindy Taluk, Chennai-78), it has been observed as under:-

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“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.

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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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(iii). In W.P.(MD)No.5586 of 2017 (R.Lokesh Kannan Vs. The District Collector, Madurai District

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

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“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.

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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.

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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

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with the order of the descendants, specified under the Succession Act or any other personal law for that matter.

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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.

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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

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have chosen to rely upon an outdated letter of the year 1991 and has been rejecting such applications.

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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."

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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.

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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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In a recent order dated 03.01.2020 made in W.P.No.35263 of 2019, (Indrani Palaniappan Vs. The

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Tahsildar, Taluk Office, Ambattur, Chennai – 600 053), (CVKJ), this Court held as follows :

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"3. The learned counsel for the petitioner placed reliance on the order of this Court made in W.P.No.15901 of 2018 dated 03.08.2018 [N.R.Raja and other Vs. The Thasildar, Madurai South, Madurai] wherein it is stated that, if there is no contesting legal heir, even if the petitioner is Class-II legal heir, the Tahsildar can conduct an enquiry and issue legal heir certificate notwithstanding to the Circular No.9/2019 R.C.No.RA.5(3)180/2019.

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The petitioner is the Class-II leagl heir, who is the elder sister of the deceased K.K.Chandra. The deceased died unmarried on 12.03.2019. The parents have also died ealier. Therefore in the event of no other leagl heir, the Tahsildar may issue notice to the petitioner, conduct enquiry and if the facts as stated above are correct, the petitioner may be issued with the legal heir certificate on or before 28.02.2020. With the above observation, the writ petition is disposed of."

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Thus, in the above order dated 27.07.2020, this Court observed that this Court repeatedly held that the difficulty to identify the members of the Class II heirs by the revenue authorities cannot be the reason to reject the request for issuance of legal heir certificates. This Court further held as follows :

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"22. The CRA is at liberty to make it clear in the revised circular that the appeal and revision are to be filed before the respective revenue authorities against the orders of the Tahsildar, as indicated above, in the subject circular. It is also open to the CRA to include some other modalities and conditional clauses in the process of issuance of legal heir certificate to have checks and balances effectively. This Court is of the view that the guidelines of field verification, etc., are devotedly followed by the field level officers, i.e., VAO, RI and Tahsildars, in their letter and spirit, the so-called lis and other issues surrounding Class II legal heirs could well be avoided."

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Coming to the facts of the case, the respondent never disputed the same, but the reason to reject the request of the petitioner is that the petitioner and his sisters are Class-II Legal heirs and as per Circular No.9 of 2019, they have to approach the competent civil Court for redressing their grievance. When there is no factual dispute, the Village Administrative Officer and the Revenue Inspector could conduct an enquiry with the relatives and neighbours of the petitioner and find out the truthfulness in the claim. They cannot negative the claim by relying upon the circular, in view of the directions issued by this Court.

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For the foregoing reasons, this writ petition is allowed and the impugned order of the respondent dated 29.07.2020 is quashed.

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Consequently, the respondent is directed to issue an order to the concerned jurisdictional Village Administrative Officer and the Revenue Inspector to conduct an enquiry with respect of the request of the petitioner and after obtaining a report from them, consider the same and issue the legal heirship certificate of Late.Jayaraman in favour of the petitioner and his sisters, after satisfying himself with the enquiry. The said exercise shall be completed within a period of six weeks from the date of receipt of a copy of this order. There shall be no order as to costs. 22.12.2020 Index : Yes / No Internet : Yes gg To The Tahsildar, Solinganallur Taluk, Chennai.

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PUSHPA SATHYANARAYANA, J.

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W.P.No.15403 of 2020

22.12.2020

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V.Devan v. The Tahsildar

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V.Devan v. The Tahsildar

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