S.Rajmalathi Vs The District collector — Service and Employment | Madras HC (2021)

S.Rajmalathi Vs The District collector — Service and Employment | Madras HC (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.Rajmalathi

...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 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.

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For Petitioner : M/s.Nathan and Associates

For Respondents – 1 & 2 : Mr.Stalin Abhimanyu,
 Government Counsel

O R D E R

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 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

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II legal heirs also. The relevant portion 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

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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:-

“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
villagelevelthroughtheVillage
Administrative Officer. In case, at a later
point of time, it is turned out to be a false

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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
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

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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-

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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

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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."

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
AdditionalChiefSecretary/CommissionerofRevenue
Administration, in which, it was specifically ordered that the

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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
onlyonthebasisoftheCircularNo.9/2019,
R.C.No.RA5(3)/180/2017, dated 24.09.2019, issued by the
AdditionalChiefSecretary/CommissionerofRevenue
Administration.

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

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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."

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

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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 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 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.

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13.This Writ Petition stands disposed of with the above
directions. No costs.

Sd/-
Assistant Registrar(CS-IV)

// True Copy //

Sub Assistant Registrar

mrr

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.

+1cc to M/s.Nathan and Associates, Advocate, S.R.No.51172

+1cc to the Government Pleader, High Court, Madras-600 104,
S.R.No.51594

W.P.No.21230 of 2021

JP-II(CO)
RLP(26/11/2021)

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