Narayanan Swaminathan v. District Collector
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2021
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P.NO.13863 OF 2021 Narayanan Swaminathan ... Petitioner .Vs.
1. The District Collector, District Collector Office, 62, Rajaji Salai, Fourth Floor, Chennai.
Tamil Nadu - 600 001.
2. The Tahsildar, Mandal Revenue Office, Mylapore, Chennai - 600 004.
... Respondents PRAYER:- Writ Petition filed under Article 226 of Constitution of India, praying for issuance of a Writ of Mandamus directing the 2nd respondent to pass orders on the Application dated 04.05.2021. For Petitioner : Mr.S.Sathiyanarayanan For Respondent : Mr.Stalin Abimanyu Nos.1 & 2 Government Advocate
ORDER
Mr.Stalin Abimanyu, learned Government Advocate, takes notice for the respondents. By consent of both the parties, this writ petition is taken up for final disposal at the time of admission itself.
2. According to the petitioner, her brother and his wife purchased a flat bearing No.B6, admeasuring an extent of 565 sq.ft in Shanti Apartments, situated at No.4, Appu Street, 46, Rosary Church Road, I lane, Mylapore, Chennai - 600 004 through sale deed dated 21.08.1985 bearing Doc.No.1107/1985, on the file of SRO, Mylapore and they had no issues. After their death, the
petitioner on behalf of other siblings, made application dated 04.05.2021 seeking class II legal heir certificate to the second respondent. However, the said application was not considered, till date. Hence, the petitioner has come up with this writ petition seeking appropriate direction to the second respondent in this regard.
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: "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 classII 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 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 fried K.Swaminathan vs. The Tahsildar, MambalamGuindy 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 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 theSuccession 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."
Hence, the learned counsel sought to extend the said benefit to this petitioner as well.
4. On the other hand, the learned Government Advocate appearing for the respondents fairly submitted that the second respondent would consider the application submitted by the petitioner seeking class II legal heir certificate, and pass orders, on merits and as per law, within a reasonable time to be fixed by this Court.
5. Considering the facts and circumstances of the case and having regard to the submissions made by the learned counsel on either side, this Court directs the second respondent to consider the petitioner's application dated 04.05.2021 and pass appropriate orders, on merits and in accordance with law and also in the light of the aforesaid order rendered by this Court in N.R.Raja case, within a period of four weeks from the date of receipt of a copy of this order.
6. Accordingly, this writ petition stands disposed of. No costs.
Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar msr To 1.
The District Collector, 62, Rajaji Salai, Fourth Floor, Chennai.
Tamil Nadu - 600 001.
2.
The Tahsildar, Mandal Revenue Office, Mylapore, Chennai - 600 004.
+1cc to the Government Pleader, S.R.No.31705 W.P.NO.13863 OF 2021 RSV(CO) PBS/25/08/2021