Heirship certificate case full order of HONOURABLE MR. JUSTICE M.DHANDAPANI W.P. NOS.25247, 25418, 22259, 16922, 16946, 18901, 27062, 26883,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on Pronounced on
30.11.2021 06.12.2021 07.12.2021 14.12.2021 17.12.2021 20.12.2021 21.12.2021 22.12.2021 23.12.2021 03.01.2022 04.01.2022

12.01.2022

 

19.01.2022

CORAM

THE HONOURABLE MR. JUSTICE M.DHANDAPANI

W.P. NOS.25247, 25418, 22259, 16922, 16946, 18901, 27062, 26883,

27239, 27231, 27445, 15138, 12962, 27664, 28247 & 28350 OF 2021

W.P. No.25247 of 2021

P.Venkatachalam .. Petitioner

– Vs –

The Tahsildar

Kumarapalayam Taluk

Namakkal District.         .. Respondent

W.P. No.25247 of 2021 filed under Article 226 of the Constitution of India praying this Court to issue a writ of certiorarified mandamus to call for the records of the impugned order passed by the respondent in Ref. No.Oo.Mu.0702/2021 A4 dated 21.4.2021 and quash the same and consequently direct the respondent to issue legal heirship certificate to the petitioner, based on the petitioner’s representation dated 27.01.2021 within stipulated time as may be fixed by this Court.

For Petitioners : Mr. Viswanathan in WP 25418/2021

Mr. P.Krishnan in WP 25247/2021

Mr. T.S.Baskaran in WP 27664/2021

Mr. K.Balasubramanian in WP 15138 &

12962/2021

Mr. Gnanasekar for M/s.K.Shyamsunder   in WP 27445/2021

Mr. S.Udhayakumar in WP 27231/2021

Mr. K.G.Vasudevan in WP 27239/2021

Mr. Muthamizhselvakumar in WP 27062

& 28247/2021

Mr. M.Vijayaraghavan in WP 26883/2021

Mr. C.D.Johnson in WP 19646/2021

Mr. T.V.G.Kartheeban in WP 22259/2021

Mr. A.S.Balaji in WP 28350/2021

Mr. Sam Jayaraj Houston in WP 16922/2021

Mr. Agnes Roselind Joseph in WP 18901/2021

For Respondents : Mr. U.Bharanidharan, AGP in WP 25418,

25247/2021

Ms. C.Sangamithirai, Spl. GP in

WP 27664, 15138, 12962, 18901,

28247, 22259 & 28350/2021

Mr. P.Gurunathan, AGP in WP 27445, 16922

& 27231/2021

Mr. K.Karthikeyan, GA in WP 27239, 27062   26883/2021

COMMON ORDER

The writ petitions, which were listed on different dates, were heard, separately, but as the issue involved in all the writ petitions being common, relating to issuance of Class II Legal Heir Certificate to the respective petitioners therein, they are being dealt with by this common order.

  1. In all the petitions, the respective petitioners have applied for issuance of Class II Legal Heir Certificate, which has since been rejected by the concerned respondent therein, leading to the filing of the present petitions. Though facts in the petitions are different, but as the issue relates to issuance of Class II Legal Heir Certificate, which is a legal issue in view of the order passed by the concerned respondent, this Court is not adverting to the individual facts.
  2. There is no dispute about the fact that the petitioners are allegedly class II legal heirs of the deceased persons and they have filed applications before the respective revenue officials for issuance of Class II legal heir certificate. However, in view of Circular No.9/2019 (Rc. No.R.A.5(3)/180/2017) dated 24.9.2019, more particularly the general instructions contained in para-8 of the said circular, the respective Tahsildars have rejected the application for issuance of class II legal heir certificate and assailing the said orders, the present writ petitions have been filed.
  3. Learned counsel appearing for the respective petitioners mainly relied on a series of decisions of this Court, passed by different learned single Judges, wherein orders were passed to the effect that mere difficulty in identifying the members of the class II legal heirs by the concerned revenue authority cannot be a reason to reject the request for issuance of legal heir certificate.
  4. Though different learned single Judges have passed orders directing grant of Class II Legal Heir certificate placing reliance on one or other similar order passed on the subject issue, however, a comprehensive order has been passed in the case of Babu – Vs – The Tahsildar (W.P. No.5940/2017 – dated 27.7.2020). In the said decision, learned single Judge, having gone through the various Government Orders on the subject, relying on certain decisions of this

Court, has held as under :-

“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 :

“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 Births 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.

  1. 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:-

“(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, 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 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.

  1. 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 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.”

  1. 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.
  2. 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.”
  3. In a recent order dated 03.01.2020 made in

W.P.No.35263 of 2019, (Indrani Palaniappan Vs. The Tahsildar, Taluk Office, Ambattur, Chennai – 600 053), (CVKJ), this Court held as follows :

“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.

  1. 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 petitoner, 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.”
  2. Learned single Judge had also adverted to the Government letter, more particularly para-3 of Letter No.1534, dated 28.11.1991 and Circular Instructions No.11/2017, RA 5(3)/80/2017 dated 9.8.2017, in and by which the Commissioner for Revenue Administration had directed the Tahsildars not to issue Class II legal heir certificates, where there arises disputes on grounds stated in the said communication. For better appreciation, the relevant portion of the aforesaid circular/letter is quoted hereunder :-

“Letter No.1534, dated 28.11.1991

  1. It is known that in the legal heirship Certificates issued by some Tahsildars, the following sentences are written “valid for six months only” and “not valid in any Court of law” as conditions. The legal heirship certificates issued by the Tahsildars cannot be considered as equivalent to the Direct legal heirship Certificates issued by the Courts under the Indian Succession Act, 1925. Further, there is no possibility for imposing conditions. Therefore, I request you not to impose any of the conditions, as mentioned above, while issuing the legal heirship certificate.”
  2. The Guidelines were annexed to the said Letter and the said Annexure reads as follows :

“ANNEXURE

GUIDELINES

1.As per the present procedure the Tahsildar has to issue the legal heirship certificate to the direct heirs.

  1. The Tahsildar 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 certificates through the Civil Courts.
  2. 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.
  3. 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.
  4. If a person is residing in other Districts, 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.
  5. If the deceased does not have children and brings up other

children.

  1. The person requesting for the legal heirship certificate for the direct heirs, should annexe the death certificate of the deceased person, affix the stamp and send an application to the Tahsildar concerned. The applications received accordingly shall be sent to the Revenue Inspector concerned for conducting proper enquiry.
  2. On receiving the application from the Tahsildar concerned, the Revenue Inspector and the Village Administrative Officer shall go to the residential address of the petitioner concerned and first conduct enquiry with the petitioner and all the members of his family, his relatives, neighbours and local people and obtain their statements. The ration card, its properties belonging to the deceased, the will, wedding invitations and other documents left behind by the deceased shall be properly scrutinized and the reports regarding the persons who are the legal heirs of the deceased and their details shall be consolidated and sent to the Tahsildar.
  3. As soon as the report of the Revenue Inspector is received, the Tahsildar should scrutinize it properly. After scrutiny, the legal heirs of the deceased person, should be confirmed with certainty. In case of suspicion, the Tahsildar can ask the petitioner concerned or his family members, relatives or the local people belonging to that place, or ask and get some other documents and arrive at a decision.
  4. The legal heir certificate should be issued only after arriving at a decision as to who are the legal heirs of the deceased without giving any room for suspicion.

Circular Instructions No.11/2017, RA 5(3)/80/2017 dated 9.8.2017

“Legal Heirship Certificate:

  • Generally, if the head or a member of the family expires,the next legal heir to the deceased, like wife, or husband or son, father/mother shall apply for heirship certificate for transfer of movable or immovable properties, sanction of family pension, etc. The death certificate in original obtained from the competent authority should accompany the application which should contain court fee stamp of Re.1/-. The application shall be forwarded to the Revenue Inspector to enquiry all legal heirs, neighbours, other villagers and the Village Administrative Officer in detail. On receipt of report a certificate mentioning the names of all natural legal heirs will be issued by the Taluk/Tahsildar (G.O.Ms.No.2906, Revenue, dated 4.11.1981).
  • The Tahsildar can advise the applicant to approach civil court for issue of a certificate in the absence of a direct legal heir, as in the following cases.
    1. More than one spouse, their children and enquiry

reveals dispute in particular of properties.

  1. In the case of issue of a certificate to the heirs of the person who have been away from the family for more than seven years.

Iii) If they are not residents in the Taluk but are residents elsewhere and when they do not appear for enquiry and iv)When the deceased has no child or his/her own and

another child is brought up.

  • The instructions issued in letter (Ms) No.1534, Revenue dated 28.11.1991 shall be followed.
  • The certificate shall be issued within fifteen days in theform prescribed in the letter (Ms) mentioned above.”
  1. Though the said circulars are in vogue, however, the circulars have been diluted by the orders passed by this Court, aforesaid, and class II legal heir certificates are directed to be issued by the Tahsildars. A careful perusal of the above orders passed by this Court, in and by which the Tahsildars/competent authorities, were directed to issue Class II legal heir certificates is only on account of the expanse of the revenue machinery to verify the genuineness of the application submitted and to arrive at a subjective decision.   In this regard, the learned single Judge in the order passed in Babu’s case (supra), has enumerated the magnitude and broadness of the revenue machinery to verify the authenticity of the class II legal heirs.  The relevant observation of the learned single Judge, for brevity, is quoted hereunder :-

“19. These orders are relied on by this Court to emphasize the fact that despite the bar placed by the CRA and the Government on the revenue officials in issuing the legal heir certificate to Class-II heirs, this Court time and again held that the Revenue Department cannot wash off their hands by merely asking the citizens to approach the Civil Court for redressing their remedies, which are otherwise ought to have been redressed by them. Such orders are passed by this Court taking note of the following facts : that the revenue department is having lower level officers, who are familiar with the people living in the concerned Village and there are revenue officers under the Tahsildar and also functioning in the villages and they would be in a position to know the members of the family ; that the village Administrative Officer is expected to know each and every family of the village and he cannot plead ignorance about the relationship ; that the village Administrative Officer is the Revenue Co-ordinating Officer of the Revenue and he must keep a close watch on the village and he should update his information; that the problem of issuing a legal heir certificate to class II heirs could be resolved, in case a workable method is adopted by the revenue authorities ; that since enquiry has to be made, the Tahsildar can direct the parties to produce birth certificates indicating the relationship and he/she can also conduct an enquiry in the village level through the Village Administrative Officer and in case, at a later point of time, it is turned out to be a false claim, it is open to the Tahsildar to cancel the certificate and even criminal action can be taken.”

  1. The vastness of the revenue machinery to conduct a roving enquiry to establish the genuineness and authenticity of the person claiming class II legal heir certificate is not an issue. The reasoning given by the Court for the purpose of the revenue authorities to issue class II legal heir certificate is only on account of the fact that the revenue department is having lower level officers, who would be aware of the people living in the Village and the revenue officers under the control of the Tahsildar would be knowing the members of the family and that the Village Administrative Officer would be knowing or rather is expected to know each and every family of the village, including relationship and the coordinated efforts of all the staff of the revenue machinery would be reasonable and sufficient to ascertain the genuineness of the persons applying for class II legal heir certificate.
  2. Though the aforesaid decision, which has taken within its fold very many decisions, based on which class II legal heir certificates have been directed to be issued, however, an order passed by another learned single Judge of this Court in Thirumurthy & Anr. – Vs – Collector of Chennai & Ors. (1998 WLR 347), about two decades back, stares writ large on this Court, as the finding of the learned single Judge therein in the said order has been allowed to continue without being challenged till date. The relevant portion of the said order is quoted hereunder :-

“2. This Court need not go into the claim or counter claims of the petitioners as well as the fourth respondent or other legal heirs of the deceased Ezhumalai Naicker.

  1. It is alleged that behind the back of the petitioners, the legal heirship certificate has been issued by the second respondent on 13.9.1996 certifying that the fourth respondent and her three daughters are the legal heirs of the deceased Ezhumalai Naicker. The petitioners claim that they are also legal heirs of the deceased Ezhumalai Naicker and taking advantage of the legal heirship certificate issued by the second respondent in favour of the fourth respondent and also in favour of her three daughters, steps are being taken by the first and third respondents for mutation of names or entries in the property tax register as well as permanent land register in respect of properties left by the deceased Ezhumalai Naicker.
  2. A perusal of the legal heirship certificate dated 13.9.1996 would show that the said certificate has been issued for the limited purpose of transfer of property. Towards the end of the legal heirship certificate, it has been stated thus :

“The parents of the deceased pre-deceased him/her.

This Certificate is issued for the purpose of transfer of property.

This Certificate is not under the provision of Succession Act.

This certificate could not be produced in the Court of law under the Succession Act.”

  1. No power or authority has been conferred on the Tahsildar or any other Revenue Authority to issue legal heirship certificate nor he is competent to adjudicate the claims of the legal heirs, who succeed on the death of an individual. No provision has been shown before this Court either by the petitioners or by the Government Advocate conferring power on the Tahsildar to issue legal heirship certificate.”

(Emphasis Supplied)

  1. From the aforesaid decision, which still survives, a categorical finding has been rendered therein by the learned single Judge that no power or authority has been conferred on the Tahsildar or any other revenue authority to issue legal heirship certificate nor the Tahsildar is competent to adjudicate the claims of the legal heirs, who succeed on the death of an individual. Inspite of the fact that G.O. (Ms) No.2906 dated 4.11.1981 had empowered the Tahsildar/Deputy Tahsildar to issue legal heir ship certificate and guidelines have been issued, which have been restated in Government Letter No.1534 dated 28.11.1991, however, the said letter pertains to issuance of legal heir certificate only insofar as class I legal heirs and not to class II legal heirs.  In fact, the decision in Thirumurthy’s case pertains to class I legal heir certificate.  Though G.O. (Ms) No.2906 dated 4.11.1981 has empowered the Tahsildar/Deputy Tahsildar to issue legal heir certificates by prescribing certain guidelines, it is to be pointed out that the said Government Order has no statutory force or backing in the form of deriving the said power from any legislative enactment.
  2. Be that as it may. It is to be stated that the order of the learned single

Judge in Thirumurthy’s case (supra), seems to have not been brought to the notice of the Court when the later orders have been passed by various learned

Judges.  However, it is to be pointed out that the decision in Thirumurthy’s case (supra) is required to be followed as a matter of judicial discipline and any doubt on the finding recorded therein, the course open to the Court is only to make a reference.  Equally, as pointed out above, the circulars which form the basis and source of power to the Tahsildar for grant of legal heir certificates, restricts it only insofar as issuance to class I legal heirs.

  1. One other decision of this Court, which is pressed into service by the petitioners is the case in Krishnamurthy – Vs – The Tahsildar, Egmore Taluk, Chennai (W.P. No.21816/2021 – dated 21.10.2021), wherein learned single

Judge has held as under :-

“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 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. 09/2019 dated

24.09.2019 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 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.“

(Emphasis Supplied)

  1. On the heels of above decisions, one other decision has been rendered by a Division Bench of the Madurai Bench of this Court in Ravi – Vs – The District Collector, Trichy District (W.P. (MD) No.18477/2020 – dated 16.12.2020), wherein, the Division Bench, placing reliance on the aforesaid Letter and Circular Instructions, noted that the Tahsildars have got no power and jurisdiction to issue legal heir certificates in cases as noted in the circular. The above view of the Division Bench, to a limited extent, is in line with the view taken by the learned single Judge in  Thirumurthy’s case (supra) and at the same time it also does not strike at the decisions rendered in Babu’s case (supra). Further the decision of the Division Bench in Ravi’s case has not in any way interfered with the findings recorded in Thirumurthy’s case.
  2. According to the decision in Krishnamurthy’s case (supra), it has been laid down that the circular dated 24.9.19, on which reliance has been placed by the respondents to reject the application for issuance of class II legal heir certificate, has no statutory force. This Court has no iota of doubt on the said proposition of law laid down relating to the statutory force of a circular.   But it is equally baffling to note that class I legal heir certificate is issued based on the very same circular, which, according to this Court has no statutory force.  In such a case, can the order of this Court give a statutory backing to a circular on the one hand, while holding the very same circular has no statutory force on the other hand when it comes to rejection of claim for class II legal heir certificate.
  3. In the aforesaid scenario, a quirk situation has arisen in which this Court is faced with two decisions, which run counter to each other and a decision of the Division Bench, which partly tags along with the decision in Thirumurthy’s case and partly tags on with the other decisions relating to issuance of class II legal heir certificate by following the guidelines framed in the aforesaid circular. While one decision has rendered a categorical finding that no power or authority has been conferred on the Tahsildar or any other revenue authority to issue legal heirship certificate nor he is competent to adjudicate the claims of the legal heirs, in the other set of writ petitions, direction has been issued by coordinate Benches to the concerned respondents to conduct an enquiry and issue class II legal heir certificate, by holding that the part of the circular which restricts issuance of class II legal heir certificate is held to have no statutory force, while the very same circular has been made the basis for granting the said relief.
  4. What is the course that this Court has to follow when two different orders on the same identical circumstances are placed before this Court and what is the discipline that this Court has to follow in the aforesaid scenario. To give clarity to this Court on the above, useful reliance can be had to the decision of the Full Bench of the Calcutta High Court in Ahamed Hossain Sk. – Vs – State of West Bengal & Ors. (2001 SCC OnLine Cal 341), wherein the Calcutta High Court has dealt with in extenso the necessity for following judicial precedents and the power of the learned single Judge to refer a matter directly to a Larger Bench irrespective of the fact that a binding precedent of a Division Bench has been brought to his notice.  In the aforesaid context, it has been held thus :-

“34. The principles that emerge from the decisions, cited supra, are that the decisions of the Supreme Court are binding on all the Courts, Article 141 of the Constitution embodies the rule of precedent. A Special Bench/ Full Bench judgment of that High Court is binding on the question of law decided by it and despite the same if any Division Bench holds to the contrary then a Division Bench has the authority to differ with the Division Bench which has taken a view contrary to the Special Bench judgment. A single judge of a High Court is bound by the judgment of another single Judge and a fortiori judgments of Benches consisting of more judges than one. So also, a Division Bench of two judges of High Court is bound by judgments of another Division Bench of two

Judges and Full Bench. A single Judge or Benches of High Courts cannot differ from the earlier judgments of coordinate jurisdiction merely because they hold a different view. When a Division Bench of two Judges differs from the judgment of another Division Bench of two Judges, it has to refer the case to a Full Bench. A single Judge cannot differ from a decision of a larger Bench except when that decision or a judgment relied upon in that decision is specifically overruled by a Full Bench or the Supreme Court. However, if the decision of the larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the single Judge would be to refer the mailer to the Division Bench.“

  1. In the aforesaid Full Bench decision of the Calcutta High Court, the proposition of law that has been laid down is that a coordinate Bench is bound by the judgment of another coordinate Bench, be it a single Judge or a Division Bench and in case of an affirmative decision by the Division Bench on a particular legal proposition, the single Judge is bound to accept the view and cannot differ from the same and refer it to a Larger Bench. The said decision is applicable only to the extent of a single Judge accepting the view of a coordinate Bench of equivalent composition and not to refer the matter to a Larger Bench, when a decision of a Division Bench is available.
  2. In the case on hand, in the decision in Thirumurthy’s case (supra), the finding rendered by the learned single Judge is that no power or authority has been conferred on the Tahsildar or any other revenue authority to issue legal heirship certificate and that being the case, when the learned single Judge had rendered a finding that Tahsildar cannot issue legal heir certificate, that being an authoritative finding rendered, which precludes the Tahsildar or the revenue authority from even issuing class I legal heir certificate, could a coordinate Bench of the same strength issue direction to the Tahsildar to issue Class II legal heir certificate, when the said authority is not clothed with any power under any statute to issue legal heir certificate.
  3. Further, the reason on which such an order has been predicated upon is the fact that the revenue department is having lower level officers, who are familiar with the people living in the concerned Village and there are revenue officers under the Tahsildar and also functioning in the villages and they would be in a position to know the members of the family; that the village Administrative Officer is expected to know each and every family of the village and he cannot plead ignorance about the relationship ; that the village Administrative Officer is the Revenue Co-ordinating Officer of the Revenue and he must keep a close watch on the village and he should update his information; that the problem of issuing a legal heir certificate to class II heirs could be resolved, in case a workable method is adopted by the revenue authorities ; that since enquiry has to be made, the Tahsildar can direct the parties to produce birth certificates indicating the relationship and he/she can also conduct an enquiry in the village level through the Village Administrative Officer and in case, at a later point of time, it is turned out to be a false claim, it is open to the Tahsildar to cancel the certificate and even criminal action can be taken.
  4. However, it is to be pointed out that in a closed village, the aforesaid procedure may be implementable, but in a diversified city, though in effect it is said to comprise of villages, it is an impossibility for a Tahsildar or a member of the revenue department to know each and every individual residing in his locality. The individual homes have now been clustered to give way to flat system and formation of nuclear families, who reside the length and breadth of the globe and, therefore, identification of the individuals and knowing each other for a revenue official would be a practical impossibility.  Further, people in the villages have started migrating to greener pastures for their livelihood and the Tahsildar in a village may not be aware of the branches in each and every family after its migration.  Further, as stated above, technological knowhow and educational implosion has taken mankind to various positions in the global arena and the question of joint family or a composite family has since dwindled and the concept of nuclear family has accelerated and gained significance.  In such a backdrop, adopting the age old criteria for identification of the legal heirs of a deceased individual, more especially, class II legal heirs, would no longer be an easy task. Therefore, when there is no provision of law which provides for issuance of legal heir certificate except in the manner provided in the Succession Act, relegating the said exercise to the revenue officials would not only be against the intent of the law makers, but would make way for breeding corruption within the already corrupted revenue department.
  5. Further, it is to be pointed out that legal heir certificate is issued onlyfor the purpose of claiming the benefits accrued to the deceased on account of his/her employment, that too to his/her direct heirs and it cannot be stretched to include the class II legal heirs. Class II legal heirs form a totally different part of the heirship structure and it is for the said class II heirs to establish their entitlement before the appropriate judicial forum.  The succession of the class II legal heirs is provided under the Succession Act.  This Court is of the opinion that delegating the power to the revenue officials to issue class II legal heirship certificate would have disastrous consequences as the chances for breeding corruption would increase manifold.  Further, the provisions as to the legal heirs made in Section 8 and 15 of the Hindu Succession Act is only insofar as identifying the relations, who could be treated to be the heirs of the deceased individual. Identification is one thing and establishing the said identification in the successional hierarchy is another thing.  Such establishing should be made before the concerned judicial forum by the parties, who claim the certificate and it is not for the concerned revenue official to appreciate the provisions of the Succession Act and identify the persons, who are the class II legal heirs of a deceased individual for the purpose of granting legal heirship certificate.  Diluting the provision made under the Succession Act by circulars conferring powers on the revenue officials to issue class II legal heir certificate would be against the spirit of the enactment and reading something into the Succession Act, which has not been envisaged by the law makers.  Further, merely because the revenue officials have been given power to revisit the said certificates in case of disputes being brought to their notice cannot be a reason for conferment of power on the revenue officials, as the interest of the estate should also be kept in mind and any dispute would only lead to multiplicity of judicial proceedings, which, the law makers, in their wisdom, had refrained from clothing the revenue officials with any power to issue class II legal heir certificate.  Further, roving enquiry cannot be done by the revenue officials, as appreciation of materials is a judicial duty and not within the realm of the revenue officials.
  6. Inspite of the fact that no authority is vested with the revenue officials through any legislation to issue class I legal heir certificate, however, the aforesaid circulars issued by the Commissioner of Revenue Administration has detailed certain mechanism to be followed for issuing class I legal heir certificates, while giving a specific direction not to issue class II legal heir certificates due to certain operational and legal difficulties. Further, it is to be pointed out that class I legal heir certificate generally would not entail any dispute, but the same analogy cannot be imported insofar as class II legal heirs are concerned, as disputes may tend to arise at any point of time, which will only pave way for multiplicity of legal proceedings by drawing more third parties into the fray.  Further, as already pointed out above, class I legal heir certificate is issued only for the purpose of claiming the benefits accrued to the deceased on account of his/her employment, which reliefs, in toto, cannot be claimed by the

class II legal heirs.

  1. Further, in Babu’s case (supra), direction has been given to the Commissioner for Revenue Administration to issue revised guidelines and

instructions to the officers to issue class II legal heir certificate as the said circular is silent about Section 15 of the Hindu Succession Act.  However, Section 15 of the Hindu Succession Act speaks about the general rules for succession in case of Hindu females.   Further, neither Section 8 nor Section 15 provides a legal armour for the revenue department to issue legal heir certificate.  Further, when Sections 9 to 11 of the Hindu Succession Act speaks about the order of succession of the class II heirs taking the property, could it be right in directing the Tahsildar to issue class II legal heir certificate, when the said act involves establishing the relationship of the person to the deceased in the successional hierarchy, which has to be done before the judicial forum in accordance with law.   There is no law conferring power on any authority to issue legal heir certificate except for the provisions contemplated under the Succession Act for which the parties have to move before the appropriate judicial forum.  In such a backdrop, would it be right to invoke the power of this Court under Article 226 of the Constitution to direct issuance of Class II legal heirship certificate by the Tahsildar, when a mechanism is provided under the Succession Act for obtaining succession certificate is one of the moot question that passes through the mind of this Court, which, in the considered view of this Court, would have been the basis for the learned single

Judge in rendering a finding that no power or authority has been vested on the Tahsildar to issue legal heir certificate in Thirumurthy’s case (supra).

  1. However, this Court is only explaining the reason for not being able to give an affirmative direction by following the various decisions given by the coordinate Benches which have been brought to its notice and it is not rendering any finding on the legal issues as there being two orders, which are contrary to each other and a Division Bench decision, which also has not given an affirmative finding one way or the other, judicial decorum warrants that this Court should refrain from rendering any finding but to refer the matter to the Hon’ble The Chief Justice for placing the matter before a Larger Bench for giving a quietus to the issue.
  2. Accordingly, Registry is directed to place the matters before the

Hon’ble The Chief Justice for referring the below mentioned issues to a Larger

Bench for authoritative pronouncement :-

  • When Sections 8 and 15 of the Hindu Succession Act speaks in clear terms about the persons, who are the legal heirs of a deceased person, and Section 9 to 11 provides the manner in which class II heirs would succeed to the property of a deceased person, inspite of the specific provision under the Act, could the issue be relegated to the Tahsildar for identifying the class II legal heirs for the purpose of issuing legal heir certificate?
  • Can the High Court, sitting under Article 226 of the Constitution, create a different mechanism from the one already built in under the Succession Act for obtaining succession certificate, for the mere reason that the mechanism provided under the Succession Act is cumbersome and time consuming and involves precious

judicial time?

  • In the absence of any challenge to Letter No.1534, dated 28.11.1991 and Circular Instructions No.11/2017, RA 5(3)/80/2017 dated 9.8.2017, which prohibits the Tahsildar from issuing Class II Legal Heir Certificates in case of certain disputed circumstances, which has formed the basis for rejection of the application for Class II Legal Heir Certificate, would it be right on the part of this Court to give an affirmative direction under Article 226 of the Constitution to issue Class II Legal Heir Certificate, sidelining the mandated procedure laid down under the Succession Act for obtaining such a certificate.

               19.01.2022

Index      : Yes / No

Internet : Yes / No

GLN

     M.DHANDAPANI, J.

GLN

                          PRE-DELIVERY ORDER IN     

                                                  W.P. NOS. 25247 OF 2021, etc.

Pronounced on

                                                                                                         19.01.2022

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