'Legal Heir' Certificate Issued By Tahsildar Only Reflects Relationship With Deceased, Does Not Affect Status Of Heir Under Personal Law: Madras High Court FB

The bench of Justice PN Prakash, Justice R Hemalatha, and Justice AA Nakkiran opined that the concept of heirship is determined through the various personal laws. Thus, the Legal Heirship Certificate issued by the Tahsildar has no effect on the legal right of any party which was conferred to him/her under the personal laws. It observed,

"Tahsildar and the Revenue Inspector cannot be expected to go on a wild goose chase hunting for the heirs of the deceased armed with the table of sharers from Mulla on Mohammedan Law or a manual prescribing the mode of distribution contemplated under Parts II and III of Chapter V of the Indian Succession Act, 1925. We cannot expand the functions of the Tahsildar from those of a purely administrative to a quasi-judicial character, as that would lead to total chaos and proliferate litigation."

Thus, the Court was of the opinion that the prefix "legal heir" used in the certificates issued by the Tahsildar is clearly a misnomer and that these are merely "relationship certificates" reflecting the opinion of the Tahsildar on the relationship of the applicant and the persons named therein with the deceased; They cannot alter the status of a legal heir which is conferred on an individual under his/her personal law.

"The "legal heir" certificate issued by the Tahsildar does not determine the status of any party as an heir of the deceased. This status is conferred on an individual under his/her personal law, and cannot be altered by mere executive instructions such as a circular," it said.

In view of the anomalies existing in the present Circular followed by the executive, the court also directed the Government to issue fresh Government Orders rectifying these anomalies.

BACKGROUND

In Tamil Nadu, the Revenue authorities like Tahsildars were issuing legal heirship certificates on the basis of inquiries conducted by Revenue Inspectors, Village Administrative officers, etc. The Board of Revenue, through their proceedings dated 27.04.1979 had prescribed the issuance of a legal heirship certificate as one of the duties of Tahsildars.

In 1991, the Special Commissioner for Revenue Administration issued a letter prescribing guidelines for the issuance of certificates. In 2017, the Principal Secretary, Commissioner of Revenue Administration also issued circular prescribing detailed guidelines for the issuance of legal heirship certificates. This circular prohibited the Tahsildar from issuing certificates in respect of certain categories. These guidelines were revised vide circular in 2019 which created a dichotomy between Class-I and Class-II legal heirs. The circular prohibited issuance of certificates to Class-II legal heirs.

The power of the Tahsildar to issue legal heirship certificates to Class-II legal heirs was challenged before various courts of the country. When a batch of such decisions came up before the single judge, it opined that there existed an apparent conflict as the decision in E. Thirumurthy v Collector of Chennai and others [1998 Writ L.R 347] held that the Tahsildar had no power whereas in J. Babu v The Tahsildar [W.P.No. 5940 of 2017, decided on 27.07.2020] the court had issued a mandamus directing the Tahsildar to issue Class-II legal heirship certificate diluting the effects of the circular issued by the Revenue Department. Finding the conflicting views to be irreconcilable, the matter was referred to a larger bench for an authoritative pronouncement.

PETITIONER'S CONTENTIONS

The petitioners, represented by Mr. Naresh Vassudhev and Mr. P.V Balasubramaniam among others argued that it was incorrect to say that the Revenue Department did not have powers to issue legal heirship certificates. The power was backed by G.O. Ms. No.2906 dated 04.11.1981. It was submitted that these circulars were backed by sanctions and that flouting them would attract disciplinary proceedings. Reliance was also placed on a judgment in W.P (MD). 22184 of 2021,dated 12.01.2022 wherein the Tahsildar was directed to issue a certificate to Class-II legal heirs if there was no contest.

The petitioners also submitted that a legal heirship certificate was only a recognition of a pre-existing right and did not create any new right. Thus, the issue did not require adjudication. There was no legislation in the state to issue legal heirship certificates, and hence, it was only traceable to executive orders.

RESPONDENT'S CONTENTIONS

The Additional Advocate General Mr. Neelakandan submitted on behalf of the state that a legal heirship certificate could be issued only upon completion of inquiry and after perusing the report of the Revenue inspector. There also existed practical difficulties in identifying Class-II legal heirs. It was only on this basis that the Government had issued the 2017 and 2019 circulars limiting the issuance of legal heirship certificates to Class-I legal heirs. He also submitted that there was nothing arbitrary in these circulars as it only aims to avoid needless litigation.

SUBMISSIONS OF AMICUS CURIAE

Mr. Sharath Chandran, Amicus Curiae submitted that the grant of a legal heirship certificate cannot be traced to 1981 G.O but to 1987 GO which dealt with the duties of the Tahsildar. He also submitted that the 2017 and 2019 circulars were merely executive instructions and were not law within the meaning of Article 13 of the Constitution. These were administratively binding on the Tahsildar. He further highlighted that the Legal Heirship certificate issued by the Tahsildar was different from the Succession certificate granted by the court.

QUESTIONS FOR CONSIDERATION

1. Whether a legal heirship certificate issued by the Tahsildar determines the status of legal heirs under their respective personal laws?
2. When the act clearly provided the manner in which the legal heirs were to succeed to the property of a deceased person, could the issue be relegated to the Tahsildar for identifying the Class-II legal heirs?
3. When there was no challenge to the G.Os and circulars barring the Tahsildar from issuing certificates in certain cases, could the court give an affirmative direction under Article 226 of the Constitution side lining the mandated procedure laid down under the Act?
4. Can the High Court issue a writ of mandamus under Article 226 of the Constitution of India to direct the Tahsildar to issue a legal heirship certificate?
5. 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 a certificate?

COURT'S OBSERVATIONS

With respect to the first question, the court observed that the certificate merely reflected the opinion of the Tahsildar on the relationship of the applicant and the persons named therein with the deceased and nothing more. It could not alter the status of a legal heir which was conferred on him under the personal laws.

The court also observed that the 2019 circular had conflicting stands in that it allowed a father to apply for a legal heirship certificate and at the same time barred the Tahsildar from issuing certificates to Class-II Heirs (which includes the father). The court also wondered how the State could take a stand that it was difficult to ascertain who a Class-II Heir was and at the same time had provisions for issuing certificates to the son of a predeceased daughter of a predeceased daughter just because they fell under Class-I Heir.

"Surely, it takes nothing more than modest common sense and practical experience to understand that it is easier to ascertain the relationship of an applicant like a father rather than an applicant who is the "son of a predeceased daughter of a pre-deceased daughter". We are, therefore, of the considered opinion that the so called rationale for exclusion of persons like a father of the deceased is wholly illogical."

Finding that the circular had merely copy pasted the provision under the Hindu Succession Act, the court also wondered as to the applicability of these same provisions to Non-Hindus who were covered under a different personal law. Hence, the court opined that the circular, in that aspect, was misconceived.

At the end of the day, Circular No.9 of 2019 is merely an administrative instruction which cannot run counter to the statutory personal law of the parties. We have no hesitation in concluding that the application of Paragraph 3 of the circular to Non-Hindus is wholly misconceived

With respect to the second and third issues, the court opined that the Judiciary did not have the manageable standard to enter this area and as such, it was purely within the remit of the executive. The court observed that it could not issue directions to the Tahsildar to flout administrative discipline. However, in exceptional circumstances, when the circular itself was arbitrary or perverse or runs counter to any provisions of law, the court could interfere.

However, considering that the circular of 2019 was riddled with serious legal misconceptions, the court opined that such decisions would suffer from arbitrariness. Therefore, the court directed the Government to issue fresh orders without the anomalies.

With respect to the fourth issue, the court held that the Government orders were made in the exercise of executive power and thus the power of the Tahsildar was not without legal sanction. The court also observed that the power of the court under Article 226 was limited. It could issue mandamus only directing the Tahsildar to dispose of the application. The court observed as under:

Even so, we must hasten to sound the proverbial warning that judicial review is directed against the decision-making process and not against the decision itself. It is no part of the Court's duty to exercise the power of the authorities itself by directing the Tahsildar to issue a legal heirship certificate. The power of the High Court is confined to directing the consideration of the application in accordance with the relevant guidelines and nothing more.

With respect to the last issue, the court held that there was a difference between the Succession certificate issued under Part X of the Indian Succession Act and the Legal Heirship certificate issued by the Tahsildar. While the former was with respect to a debt or security, the latter did not deal with any such matter.

Case Title: P Venkatachalam v. The Tahsildar (Batch)

Case No: WP No. 25247 of 2021 and other connected

Citation: 2022 LiveLaw (Mad) 265