A legal heir certificate cannot be denied due to the absence of a death certificate when a person has been missing for over seven years, invoking the presumption of death under Section 108 of the Indian Evidence Act.

ORDER

The petitioner's father has not been heard of for more than forty years. The petitioner was two years old when he went missing. She now seeks legal heir certificate for her father. The jurisdictional Tahsildar has taken the stand that the petitioner has to go before the civil court for relief. Challenging the said stand, the present writ petition has been filed.

2.I must straightaway observe that the course of action indicated by the first respondent is not feasible of compliance. It has been held that a bare suit for declaration that a person has not been heard for a certain number of years and that therefore, decree should be granted that he is presumed to have died is not maintainable. The consistent view of the courts has been that such a relief will not fall within the scope of Section 34 of the Specific Relief Act , 1963 which provides for invoking the court's jurisdiction for obtaining declaration of status or right (2022 AIR (Ker) 52, 2022 (1) LW.32, 2008 (3) LW.531, ILR 1948 Bom 633, SA No.194 of 2008 (Allahabad High Court, AIR 2021 Chh 20, ILR 1928 All 678, ILR 1928 LAH 467 and Vol 32 CAL WN 1084).

3.The real difficulty appears to be the guidelines provided in G.O Ms No.478 Revenue and Disaster Management Department dated 29.09.2022 for issuance of legal heir certificate. It has been laid down therein that the applicant must enclose the death certificate of the deceased. In this case, the applicant is not in a position to produce death certificate. By invoking Section 108 of the Indian Evidence Act corresponding to Section 111 of BSA 2023, there can be a presumption of death but for issuing death certificate, date of death is necessary. There cannot be any presumption regarding the date of death [(2004) 10 SCC 131]. Since the death certificate must contain the date of death, the authorities cannot be expected to issue the same. But whether on this score, the applicant can be denied legal heir certificate is the moot point for consideration.

4.There is a well known legal maxim “Lex Non Cogit Ad Impossibilia” (Law does not compel a person to do that which he or she cannot possibly perform). The petitioner cannot obtain her father's death certificate. She is however entitled to invoke the presumption set out in Section 108 of the Indian Evidence Act , 1872 (corresponding to Section 111 of BSA,, 2023). The said provision is as follows :

“108. Burden of proving that person is alive who has not been heard of for seven years 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 shifted to the person who affirms it.”

When the petitioner can invoke the statutory presumption, she must be able to avail its benefits. I have already noted that on the strength of the presumption, the petitioner cannot obtain death certificate. Insisting on production of death certificate would amount to calling upon the petitioner to do the impossible. The petitioner should therefore be allowed to apply for legal heirship certificate without being called upon to produce the death certificate. Ubi jus ibi remedium is a well known maxim. If there is right, there must be remedy. The petitioner cannot go to civil court for the reasons already mentioned. She must therefore be permitted to apply to the revenue authority for legal heirship certificate.

5.The Hon'ble Kerala High Court in Bindhu v. State of Kerala [ 2022 AIR (Kerala) 52 ] held that the revenue authority ought to issue legal certificate if the person concerned has not been heard for more than seven years. The learned Judge followed an earlier ruling in Rohini v. Tahsildar, Aluva East (2021) 4 KLT 743 in which it was held that even in a case where FIR has not been lodged, reporting the missing of an individual, the denial of legal heirship certificate would be arbitrary so long as the competent authority does not aff