The court ruled that the issuance of a legal heirship certificate requires a civil declaration of death, which must be established through competent court proceedings, not by administrative authorities.

ORDER

This writ petition has been filed challenging the online rejection order passed by the second respondent dated 10.10.2024 and for a consequential direction to the respondents to issue legal heirship certificate for the petitioner's husband.

2. Heard Mr.T.Thirumurugan, learned counsel for petitioner and Mr.R.Neelakandan, learned Additional Advocate General assisted by Mr.T.M.Rajangam, learned Government Advocate appearing for respondents.

3. The case of the petitioner is that she was married to one Raju on 06.01.1984 and through the wedlock, she has two children viz., Kavitha and Mohankumar. The further case of the petitioner is that her husband went for work on 27.12.2002 and thereafter, never returned back. Till date, there is no information regarding her husband and in spite of best efforts, the petitioner is not able to find out the whereabouts of her husband. A complaint was also given to the police and the same was taken on file in CSR No.1240 of 2004 and thereafter, the police were also not able to find out the whereabouts of her husband.

4. The petitioner filed a suit before the District Munsif Court, Omalur, seeking for a declaration to declare that there is a civil death of her husband and for other consequential reliefs. This suit was not entertained and it was returned with an endorsement that such a suit is not maintainable by citing an order passed by the Madurai Bench of this Court in W.P.(MD)

No.5252 of 2024 dated 14.06.2024.

5. In view of the above, the petitioner submitted an application before the second respondent seeking for legal heirship certificate and the second respondent has rejected the application on the ground that the petitioner has not enclosed the death certificate of her husband. Left with no other option, the present writ petition has been filed before this Court.

6. At the outset, this Court has to take note of G.O.(Ms) No.478 dated 29.09.2022, which provides the guidelines and procedures to be followed by the competent authority for issuance of legal heirship certificate. Clause 3(2) specifically states that the applicant, who submits an application, in the case of person treated as dead, (person who is missing for a period of 7 years or staying away from the family), the order of the competent Court declaring the person as dead must be enclosed along with the application. This guideline has been given in order to ensure that the concerned authority does not perform the function of a civil Court by declaring someone as dead.

7. Further, on going through the order relied upon by the learned counsel for the petitioner in W.P.(MD) No.5252 of 2024 dated 14.06.2024, this Court finds that even though there is a reference to the Government Order, the effect of the same has not been spelt out in the order. In that order, the Hon'ble Mr.Justice G.R.Swaminathan was dealing with a case where the petitioner's father was not heard of for more than 40 years and the petitioner at that relevant point of time was two years old.

8. Learned Single Judge also considered the scope and ambit of Section 108 of the Indian Evidence Act corresponding to Section 111 of BSA 2023. The learned Judge came to a conclusion that even if a decree is passed by a competent civil Court, it will remain to be a paper decree since there will be no one to oppose the same and ultimately, it will be the Tahsildar, who will be competent to issue the legal heirship certificate. Accordingly, the learned Single Judge has directed the Tahsildar to hold an enquiry and to record the testimony of witnesses and complete the same and thereafter, issue the legal heirshi