(Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order issued by the 1st respondent in Na.Ka.A3/4288/2024 dated 29.07.2024, quash the same and consequently direct the 1st respondent to issue legal heirship certificate for P.Chithirai Muthusamy to the petitioner's minor grand daughter C.Yoga Shifana.)

Dr. G. Jayachandran J

1. The petitioner herein applied to the Thasildar of Ramanathapuram for issuance of certificate showing her grand daughter Minor C.Yoga Shifana as the legal heir of her son- in- law Chithirai Munusamy, who went missing on 09.05.2005 and not heard for more than seven years. The said application was rejected vide proceedings of the Thasildar, Ramanathapuram, dated 29.07.2024 stating that the enquiry conducted reveals the said Chithirai Munusamy had not died naturally, he was reported missing. Hence, the Thasildar office is not competent to issue legal heir certificate. The said proceedings is under challenge in this petition seeking certiorarified mandamus to quash the impugned proceedings and direct the Thasildar to issue legal heir certificate.

2. In the course of argument, the Learned Counsel for the petitioner has relied on the order passed in WP(MD)No.5252 of 2024 dated 14.06.2024 ( R.Janaki –vs- The Thasildar, Palayamkottai Taluk) wherein the learned single Judge has allowed the writ petition filed for similar relief with the following direction:- “7.Section 34 of the Specific Relief Act, 1963 states that one can obtain the relief of declaration as regards the legal character, only if there is someone to deny the same or interested to deny the same. The petitioner cannot go to the civil Court to obtain a declaration that her father is no more. Even if the petitioner arrays her relatives and obtains a decree, it is not binding on others including the local body or the governmental authorities. It would remain a paper decree (vide 2008 3 L.W.531). It is the jurisdicational Tahsildar who is competent as well as the appropriate authority to issue legal heir certificate.”

3. Before the Learned Judge who heard this case, the Learned Special Government Pleader had submitted that the presumption under Sections 107 and 108 of the Indian Evidence Act (Sections 110 and 111 of BSA) is a rule of evidence for the Court and the same cannot be extended to the enquiry proceedings conducted by Revenue Authorities. Even if the enquiry of the Thasildar reveals that the person is not heard for more than 7 years, he cannot presume death of that person, who is not heard for seven years and issue certificates. Issuance of legal heir certificate is possible and permissible only on the death of the person for whom legal heir certificates sought.

4. The Learned Judge, after considering the judgments regarding presumption of death envisaged under the Indian Evidence Act, particularly the judgements rendered by the Division Bench and the Full Bench of this Court, the Government Orders and the circulars issued by the Government, had observed that before the Learned Judge who decided W.P(MD)No.5252 of 2024 judgments of Division Bench and Full Bench were not brought to the notice, therefore his order being in conflict with the full bench ( P.Venkatachalam –vs- The Thasildar, Namakkal ) and few other Judgments of this Court as well as the High Court of Hyderabad, and the judgments of the High Court of Kerala, had thought fit to place the matter before Hon’ble Chief Justice to constitute a larger bench for addressing the issue as to,” whether the Thasildar can issue the legal heir certificate by applying the presumption under Sections 107 and 108 of the Indian Evidence Act, 1872 and Sections 110 and 111 of BNS, 2023 and whether the question shifting of burden like pendulum can be decided by the Tahsildar or only by the Civil Court’.?

5. The learned counsel for the writ petitioner submitted that the petitioner herein is presently taking care and ustody of the minor child namely C.Yoga Shifana. The parents of the minor child have gone missing. Stating that Chithirai Muthusamy, the father of the minor child went missing from 14.02.2011. Following line the mother of the minor child, also had left the home and she got some other person the whereabouts of the father and mother of the minor child is not known. In the said circumstances, the FIR was registered on 13.05.2015 before the local police for “Man Missing” in respect of Chithirai Muthusamy in Crime No. 95 of 2015 Till date the missing man not traced. Under the said circumstances, the writ petitioner gave representation on 26.07.2024 before the Tahsildar for issuance of Legal Heir Certificate. After getting report from the Revenue Inspector, the Tahsildar has rejected the said representation stating that he is not a competent to issue Legal Heir Certificate for “Missing Man”.

6. The learned counsel emphasised that the writ petition to be allowed following the dictum laid in R.Janaki –vs- The Thasildar, Palayamkottai Taluk, the learned single Judge had considered a similar case and held a suit for declaration to declare the civil death of a person who was not heard of for more than 7 years is not maintainable, since such relief will not fall within the scope of Section 34 of the Specific Relief Act, 1963 and had referred the following judgements to substantiate the said observations: (i)2022 AIR (Ker) 52, (ii)2022(1) L.W.32, (iii)2008(3) L.W 531, (iv)ILR 1948 Bom 633, (v)S.A.No.194 of 2008(Allahabad High Court, AIR 2021 Chh 20, ILR 1928 All 678, ILR LAH 467 and Vol 32 CAL WN 1084. and also referring to Para No.7 of the judgment in R.Janaki's case(cited supra).

7. The learned counsel Mr.S.R.A.Ramachandran, learned Additional Government Pleader submitted that parameters required for the issuance of legal heir certificate to a naturally dead person and a direction to issue legal heir certificate on presumption that the person is dead, are entirely different. Sections 107 and 108 of the Indian Evidence Act, confine to judicial process and the principle of evidence to be followed in the course of judicial process. Same cannot be extended to the enquiry proceedings conducted by the Revenue Officials. The enquiry by the Revenue Authorities will be confined only to the teritorial jurisdiction upon which he exercise his power. In the course of enquiry, if he finds no material that the person was not heard for 7 years in that locality, it does not ipso facto will lead to a presumption that the person is dead. In case, the person has gone abroad or to the other State beyond the jurisdiction, and no one in the village nor heard him for seven years, the scope of enquiry cannot be treated as a complete enquiry due to teritorial restriction only in the course of trial in the Court, the presumption under Sections 107 and 108 of the Act, will be drawn if necessary on the basis of the evidence adduced by the parties about the fact regarding the last place and date, the said person seen alive. The Court will apply its judicial mind on examination of evidence and proceed whether the presumption is to be drawn or not. Neither the Board Standing Order(BSO) nor the Guidelines issued by the Government confer such power on the Revenue Authority to draw presumption of civil death to give death certificate.

8. As reply, the learned counsel appearing for the petitioner relying upon paragraph No7 of the judgment in W.P(MD)No.5252 of 2024 further submitted that Section 34 of the Specific Relief Act enable a person to seek for declaration regarding legal character, only if there is someone to deny the same or interested to deny the same. In case where no one to deny the claim of legal character, civil suit is not maintainable. The learned counsel for the writ petitioner further referred to Section 9 of the C.P.C., and submitted that the relief seeking legal heir certificate based on the presumption of civil death is not a suit of civil nature and therefore, suit is not maintainable.

9. To say the least, the above arguments are fallacious and untenable. The scope of specific relief Act is to deal with 7 kinds of specific relief viz., (i)Section 5 to 8 – recovery of possession of property, immovable and movable (ii)Section 9 to 24- Specific performance of contracts (iii)Section 26-rectification of instruments (iv)Section 27 to 30-rescission of contracts (v)Section 31 to 33-cancellation of instruments (vi)Sections 34 & 35- Declaratory Decree and (vii)Section 36 to 42 – injunctions.

10. Section 34 of the Specific Relief Act is relevant for the present discussion and it reads as below: 34. Discretion of court as to declaration of status or right.— Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.

11. The case in hand, when the petitioner sought for legal heir certificate for Chithirai Muthusamy, it has been denied by the Tahsildar stating that the legal heir certificate cannot be granted for a person who had not attained natural death. Therefore, the contention of the petitioner that there is no one to deny the legal character sought by the writ petitioner itself is factually incorrect. Declaring a person not heard for 7 years as dead touches upon the civil right that person whom the petitioner claim to be dead and also of the person who claims heirship through him. Hence, Section 9 of C.P.C which reads as below, squarely gets attracted to approach a civil Court: 9. Courts to try all civil suits unless barred .-The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation [I ].-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. [ Explanation II .-For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.] [Inserted by the Code of Civil Procedure (Amendment) Act, 1976, Section 5 (w.e.f. 1.2.1977). ]

12. In this case one cannot for gain sake claim, there is no denial on claim of legal character. The physical status of a person whose existence at one point of time due to his missing from home, others are not sure whether he is alive or dead. In case of such nature, the law provides a procedure by filing civil suit seeking declaration that the said person is civil death or alive, for which, Sections 107 and 108 of the Indian Evidence Act, provides presumption to be drawn by the Court.

13. For easy reference, Sections 107 and 108 equivalent to 110 of the Indian Evidence Act is extracted below: 107. Burden of proving death of person known to have been alive within thirty years. –– When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 108. Burden of proving that person is alive who has not been heard of for seven years. –– 1 [Provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is 2 [shifted to] the person who affirms it.

14. On examining the structure of the Evidence Act, we find that Part- III Chapter VII deals with burden of proof wherein Section 107 says about on whose shoulder the burden of proving the death of a person shown to have been alive not heard for 7 years lies. Whereas Section 108 says the burden of proving that a person is alive is on the person who claims that the said person was heard within 30 years. Therefore, it is clear that Sections 107 and 108 has been read together wherever necessary and they are complementary to each other.

15. The expression burden of proof is explained in Section 101 of the Act and it commenced as below: “whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he assets, much prove that those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

16. Thus, without any pale of doubt, it is clear that the presumption of civil death can be drawn in aid of Section 107 of the Act by discharging the burden of proof before a Court of law, and the party who claims that death of person existing once not heard for 7 years and want a legal heir certificate has to necessarily undergo the process of getting a declarative decree from the competent Court with the aid of Section 107 of the Indian Evidence Act.

17. The learned Judge who has authored R.Janaki's case in W.P(MD)No.5252 of 2024, had referred certain judgments as precedent mostly from the High Court of Kerala and few more from Calcutta High Court. It was not brought to the notice of the said learned Judge, the judgment of the Kerala High Court rendered by the Division Bench consisting of Hon'ble Justice Manikumar S.MANIKUMAR AND Hon'ble Justice SHAJI P.CHAL, reported in 2022 (2)KLT 203(Shajeev George vs- The Chief Registrar of Births and Deaths, Office of the Director of Panchayat and Ors.), wherein the learned Judges had observed as below: “19. It is further clear from the provisions of the Evidence Act referred to above that there should be sufficient proof for declaration of the civil death. It is also clear from the said provision that the declaratory decrees can be made by a court only after being satisfied with sufficient proof available on record to do so. The Registrar of Births and Deaths is not expected to go into such intrinsic aspects relating to the burden of proof and the nature of evidence required for arriving at a conclusion with respect to the declaration of the civil death of a person. We are also of the view that the said exercise can only be undertaken by a competent civil court. 20. Be that as it may, Mr.V.Philip Mathews, learned counsel for the appellant, has a case that the writ court is vested with powers to declare the civil death of Mr.P.I.George. We are unable to agree with the same for the fundamental reason that the power exercised by a writ court under Article 226 is of a summary nature and going through the pleadings and the photocopies of the documents produced before it, it is not expected to make a declaration of the civil death of a person, apart from the fact there are no materials at all to make a declaration. 21. We are also of the view that the declaration of the civil death of a person is a very serious matter, which cannot be done by a statutory authority empowered to issue a death certificate or by any court casually and in haste. Taking into account all the above aspects, we have no hesitation to hold that the learned single Judge was right in dismissing the writ petition and there is no merit in the appeal. Upshot of the above discussion is that the writ appeal fails. Accordingly, it is dismissed.

18. Before arriving at a conclusive conclusion to fortify the view that the Revenue Authorities are not competent to issue legal heir certificate on the presumption of death unless such a declaration is obtained from a competent civil Court, there are few more judgments has held that the declaration of civil death of a person cannot be done by the executive authority empowered to issue the death certificate. Such a status has to be declared by the competent civil Court after exercising the due process of law. We are of the view that it is suffice to refer the judgment of Full Bench of this Court in W.P(MD)No.25247 of 2021 etc., in P.Venkatachalam vs. Tahsildar, Kumarapalayam Taluk, Namakkal District, wherein this Court has traced the jurisdictional history of issuance of birth and death certificate and the procedure to be adopted in case of issuance of legal heir certificate of a person not heard of for more than 7 years.

19. While considering the question of reference regarding the issuance of legal heir certificate by the revenue officials, the following supplemental instruction bearing (Rt)1534, dated 28.11.1991, issued by the Special Commissioner and Secretary to Government, Revenue Department, also relevant. In the said Circular, the Tahsildar are instructed to avoid issuing legal heir certificate in respect of a person who has left the family for 7 years by deeming that person to be dead and the Circular No.11 of 2017 issued by the Commissioner of Revenue Administration on 09.08.2017, makes the said dicta more emphatic as under:

                  “7)General Instructions:- Tahsildars shall not issue legal heirships certificates for the following cases and to inform the applicants to approach the Competent Court for obtaining the legal heirship certificates.

                  (i)If more than one wife /husband exist for the deceased

                  (ii)When there is a dispute for settlement / partition of properties of the deceased

                  (iii)In case of the person treated as death who is missing for the period of 7 years of staying away from the family.

                  (iv)In the case of adopted child or no children.

                  (v)No certificate shall be issued under Indian Succession Act, 1925”

20. While answering the question referred for authoritative pronouncement, the Full Bench of this Court has summed up the answer as below:

                  “65. To sum up, or answers to the questions formulated in paragraph,10, (supra), are as under:

                  A. Legal heirship is a status governed by the respective personal law of parties through varioux statutes. The certificates issued by the Tahsildar amount to nothing more than 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, exfacie, 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. (emphasis added)

                  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-1 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. This exercise shall be completed within a period of six weeks from today.”

21. Thus, it is crystal clear that the writ of mandamus under Article 226 of the Constitution to direct the Tahsildar to issue legal heir certificate by drawing presumption of death is impermissible. The presumption under Section 107 of the Evidence Act(equivalent to Section 110 of BNS Act), is in connection with the burden of proof before the Court by a person, who asserts the said fact. It cannot be a tool or guide for executives like Tahsildar, while considering the issuance of legal heir certificate for a person gone missing from his territorial jurisdiction and unheard for seven years.

22. In the result, the Writ Petition is remitted back to the Writ Court for passing appropriate order. Registry is directed to list the Writ Petition before the learned Judge dealing the concern roaster.