Sekarreporter: A full bench, consisting of Hon’ble Mr.Justice P.N.Prakash, Hon’ble Mrs.Justice R.Hemalatha and Hon’ble Mr.Justice A.A.Nakkiran, was constituted by the Hon’ble Chief Justice on the reference made by Hon’ble Mr. Justice M. Dhandapani, vide an order dated 19.01.2022 in W.P.No.25247 of 2021 (batch), to answer the following questions:
[6/26, 07:37] Sekarreporter: A full bench, consisting of Hon’ble Mr.Justice P.N.Prakash, Hon’ble Mrs.Justice R.Hemalatha and Hon’ble Mr.Justice A.A.Nakkiran, was constituted by the Hon’ble Chief Justice on the reference made by Hon’ble Mr. Justice M. Dhandapani, vide an order dated 19.01.2022 in W.P.No.25247 of 2021 (batch), to answer the following questions:
“1) When Sections 8 and 15 of the Hindu Succession Act speak in clear terms about the persons, who are the legal heirs of a deceased person, and Sections 9 to 11 provide the manner in which class II heirs would succeed to the property of a deceased person, in spite 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 heirship certificate?
2) 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?
3) 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 prohibit the Tahsildar from issuing Class II Legal heirship certificates in case of certain disputed circumstances, which has formed the basis for rejection of the application for Class II Legal Heirship 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 heirship certificate, sidelining the mandated procedure laid down under the Succession Act for obtaining such a certificate.”
Hon’ble Full Bench heard learned counsel for the various petitioners, Mr.R.Neelakandan, learned Additional Advocate General assisted by Mr.V. Ravi and Ms.Geetha Thamaraiselvan, Special Government Pleaders and Mr. Sharath Chandran, Amicus Curiae.
The Hon’ble Full Bench, by the common order delivered on 17.06.2022, answered the reference and issued directions to the State Government as follows:
“A. Legal heirship is a status governed by the respective personal law of parties through various statutes. The certificates issued by the Tahsildar amount to nothing more than a relationship certificate reflecting the opinion of the Tahsildar as to the relationship of the applicant and others named therein with the deceased. Consequently, the certificate issued by the Tahsildar does not affect the legal right of any party and has no bearing on the status of a legal heir which is conferred on an individual under his/her personal law.
B. An administrative circular does not have the force of law and does not bind the citizen or the Court. They, however, bind the Tahsildar as a measure of ensuring administrative discipline and securing consistency in decision-making. The discretion of the Tahsildar is circumscribed by these administrative instructions which may be issued, from time to time, by the Commissioner of Land Administration.
C. Consequently, a writ of mandamus under Article 226 of the Constitution will not lie to direct the Tahsildar to issue a legal heirship certificate contrary to the terms of a circular. An exception to the aforesaid principle is where the circular, ex-facie, suffers from the vice of arbitrariness or perversity or runs counter to any provision of law. In such cases, it is open to the Court to ignore the circular and grant such relief(s) as may be permissible in law.
D. In the absence of any conflict with any primary or delegated legislation holding the field, G.O. Ms. No.581 Revenue Department dated 03.04.1987 casts a duty on the Tahsildar to issue a legal heirship certificate as per the norms and guidelines prescribed by the Commissioner of Land Administration. G.O. Ms.No.581 Revenue Department dated 03.04.1987 is undoubtedly a law as it has been issued in exercise of executive power under Article 162 of the Constitution of India. Consequently, when the Tahsildar keeps the application pending and does not decide on it one way or the other, a writ of mandamus may be issued by the High Court directing the Tahsildar to decide the application in terms of G.O.Ms.No.581 Revenue Department dated 03.04.1987 and the applicable circulars. The decisions in N.Dhanalakshmi (supra) and E. Thirumurthy (supra), to the extent that they hold that the Tahsildar has no power to issue a certificate of this nature, will stand overruled.
E. A legal heirship certificate issued by a Tahsildar cannot be equated to a succession certificate issued by a Court under Part X of the Indian Succession Act, 1925, in respect of the debt or securities. In this view of the matter, the High Court, in exercise of Article 226 of the Constitution of India, does not create any new mechanism as stated in the order of reference.
F. The classification of persons as Class-I and Class-II heirs in Circular No.9 of 2019, dated 24.09.2019, and their application to the heirs of a deceased female Hindu or non-Hindu would lead to chaos. We find the entire edifice of the classification in the Circular is founded on a fallacy that the concept of Class-I and Class-II legal heirs which are applicable to the heirs of a deceased Hindu male under Section 8 of the Hindu Succession Act could be extended across the Board to all religions.
G. Consequently, the Government of Tamil Nadu is directed to issue a fresh Government order in lieu of Circular No.9 of 2019 without the anomalies pointed out, supra, in particular the usage of the expressions “Class-I” and“Class-II” legal heirs under the Hindu Succession Act, 1956. The Government will also consider incorporating a father, blood brother/sister as eligible applicants for unmarried deceased, as also the administrative remedies of appeal and revision found in paragraphs 9 and 10 of the existing Circular No.9 of 2019.”
[6/26, 07:37] Sekarreporter: 💐
