FIR Not Necessary For Issuance Of Heirship Certificate If Person Missing More Than 7 Years: Kerala High Court

The Kerala High Court recently ruled that the competent authorities cannot insist on the production of the First Information Report for grant of an heirship certificate if one of the parties has been missing for more than seven years. 

Justice PB Suresh Kumar while allowing a petition observed that the attempts to keep the procedure for grant of heirship certificate consistent shall not result in injustice to the parties.

The question before the Court was whether the competent authority for grant of heirship certificate sought by the petitioner is justified in insisting copy of the FIR lodged in connection with the missing of the petitioner's father for granting the said certificate excluding the name of her father. 

"If the family cannot be found fault with for having not lodged the First Information Report, the denial of heirship certificate to the petitioner would be certainly arbitrary, so long as the competent authority does not affirm that the father of the petitioner is alive," the Bench observed. 

Factual Background: 

As per the writ petition, the petitioner's mother died on 14th February 2013, and her father had left their company about 30 years ago and his whereabouts were not known to them thereafter. Hence, the petitioner preferred an application for an heirship certificate. 

She submitted that since the deceased does not have any blood relatives other than the petitioner, and since the whereabouts of her father were not known for more than 30 years, it has to be certified by the competent authority that the petitioner is the sole heir of her deceased mother. 

Pursuant to the receipt of this application, an enquiry was conducted by the Village Officer where it was revealed that the petitioner and her father are the only heirs of the deceased. 

However, the Tahsildar issued a communication to the concerned Village Officer to require the petitioner to re-submit the application with a copy of the First Information Report lodged in connection with the missing of the father of the petitioner.

She added that solely because her mother did not lodge any complaint in connection with the missing of her father, she is unable to obtain an heirship certificate on account of the insistence of the copy of the First Information Report by the authorities. On this ground, she argued that the insistence of the document aforesaid, in the facts and circumstances of the case is unreasonable, arbitrary, and unjust.  

Contentions Raised:

Advocate Shibi K.P representing the petitioner contended that when the materials available before the competent authority indicates that if a person has not been heard of for more than seven years by those who would have naturally heard of him if he had been alive, the competent authority is bound to presume, in the light of Section 108 of the Indian Evidence Act that he is dead and issue heirship certificate without including his name in the certificate. 

He added that for this reason there is no legal basis for insisting copy of the First Information Report lodged in connection with the missing persons invariably in all cases.

The Government Pleader submitted that a copy of the First Information Report lodged in connection with the missing of persons is insisted while issuing heirship certificate to maintain consistency in the procedure for grant of heirship certificate and the insistence of the said document cannot, therefore, be said to be unreasonable, arbitrary or unjust.

Findings of the Court:

The Single Bench noted that according to Section 108, if a person has not been heard of for more than seven years by those who would have naturally heard of him if he had been alive, in the absence of any materials to show that he is alive, he can be presumed to have been dead. 

It was also observed that the Tahsildar does not have a case that the father of the petitioner is alive or that he has been heard of during the last 30 years by the petitioner. 

"Of course, the procedure for grant of heirship certificate shall be consistent, but the same shall not result in injustice to the parties." 

The Court also found that the explanation offered by the petitioner for not lodging the FIR in connection with the missing of her father is that having regard to the previous conduct of her father, the family expected bona fide that he would come back after some time. Therefore, the petitioner's family cannot be blamed for having not lodged any FIR with the police in a case of this nature.

"If the family cannot be found fault with for having not lodged the First Information Report, the denial of heirship certificate to the petitioner would be certainly arbitrary, so long as the competent authority does not affirm that the father of the petitioner is alive."

The petition was thereby allowed with a direction to the respondents to issue the heirship certificate sought by the petitioner forthwith, without insisting copy of the FIR lodged in connection with the missing of her father. 

Case Title: Rohini S.T. v. Tahsildar

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