Legal heir certificates cannot be issued by administrative authorities based solely on presumption; a judicial declaration of death is required under the law.

ORDER :

G.JAYACHANDRAN, J.

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 wh