A legal heirship certificate is an essential document, sought by the legal heirs of a deceased individual for processing intestate succession related application in government offices. The process of applying for and obtaining a legal heirship certificate is by itself an arduous process and is riddled with a plethora of unresolved questions. The most significant of them is the issuance of legal heirship certificate to Class II legal heirs when there are no surviving Class I legal heirs.
A legal heirship certificate is required to be issued after proper scrutiny and with certainty. In the State of Tamil Nadu, legal heirship certificates are issued by Tahsildars to the family members of the deceased based on the fact-finding inquiries undertaken by the revenue inspectors and village administrative officers. Unlike in the States of Maharashtra and Odisha, such authority of the Tahsildar does not emanate from any statute or legislation in the Land of Temples, but rather originates from administrative circulars issued by the revenue department from time to time. The Government of Tamil Nadu, in the year 1980, issued G.O. No. 581 (“1980 GO”), under which issuance of legal heirship certificates was enumerated as a duty of the Tahsildar. Thereafter, on September 24, 2019, a circular bearing No. 9 of 2019 (“2019 Circular”), was issued by the Commissioner for Revenue Administration, revising the earlier guidelines and established the distinction between Class I and Class II legal heirs as direct and indirect legal heirs, respectively, and prohibited the Tahsildar from issuing legal heirship certificates to Class II legal heirs, under paragraph 8 (i) of the 2019 Circular.
To the contrary, the Madras High Court in N. Dhanalakshmi vs. The District Revenue Officer, Salem and others[1] and E. Thirumurthy vs. Collector of Chennai and others[2] held that the legal heirship certificates issued by the Tahsildars had “no sanctity in law”. But in contrast, in K.M Abdul Jaffar vs. District Collector, Tirunelveli District and others[3], the Madras High Court issued a mandamus directing the Tahsildar to adhere to Muslim personal law and include the names of certain persons omitted in the previously-issued legal heirship certificate. In several other cases such as T.S. Renuka Devi vs. The Tahsildar, Mambalam[4] and M. Arumugam vs. The Tahsildar, Madurai South[5], a similar approach was taken, and the Tahsildar was directed to issue legal heirship certificate to Class II legal heirs. All these judgments were passed prior to the issuance of 2019 Circular, which explicitly prohibited the Tahsildar from issuing legal heirship certificates to Class II legal heirs.
While the judicial perspectives on the issuance of legal heirship certificate were conflicting in nature, the Court has recurrently observed that it would not be feasible for the family members of the deceased to approach the Court on every such instance, as it would merely result in multiplicity of cases, with no opposing claims. Additionally, the Court was of the view that the Tahsildar, an administrative authority, cannot be expected to perform a judicial function of ascertaining the Class II legal heirs, according to each individual’s personal religious laws. Hence, a reference was made to a larger bench for the sake of clarity and conclusion in this matter.
The larger bench, in P. Venkatachalam vs. Tahsildar[6], has deliberated upon such irreconcilable judicial precedents, and administrative circulars issued in this regard. The Court took into consideration certain major issues viz., (i) Whether the legal heirship certificate issued by the Tahsildar determines the status of legal heirs as per their respective laws? (ii) Whether identifying Class II legal heirs could be relegated to the Tahsildar for issuing legal heirship certificate? (iii) Whether the Court could direct the Tahsildar to issue legal heirship certificates to Class II legal heirs by way of a writ of Mandamus under Article 226 of the Constitution?
In response to the first issue, the Court analysed the administrative directions issued to the Tahsildar and opined that the 2019 Circular was crippled by several legal misconceptions in relation to personal laws of succession. Notwithstanding the personal religious background of the legal heirs, the 2019 Circular was issued basis Section 8 of the Hindu Succession Act, 1956, which could lead to undesirable consequences. The Court also held that the 2019 Circular is merely an administrative instruction which cannot override the statutory personal laws of the land. Hence, the Court directed the Government of Tamil Nadu to issue a fresh circular, taking into account the personal laws applicable as per the religion of the individual and to rectify the other fallacies that were pointed out. Further, the Court opined that the power of the Tahsildar to issue legal heirship certificates is erroneously assumed. Such power stems out of executive instructions issued from time to time that do not affect the legal rights of the citizens and hence, are mere relationship certificates which cannot be regarded as the final word on the status of legal heirship.
While the Court regarded the 2019 Circular to have “no legal force” and that it could not affect the rights of citizens, it was not discarded as completely invalid. Interestingly, the Court analysed the relative validity of the 2019 Circular to the authorities to whom the directions were issued and observed that non-adherence to such directions might expose a public servant to disciplinary proceedings. Consequently, a writ of Mandamus under Article 226 of the Constitution will not sustain to direct the Tahsildar to issue a legal heirship certificate, contrary to a direction prescribed to him under a circular. An exception to such rule would be instances wherein the circular is riddled with arbitrariness or the Tahsildar is not deciding on the application in a time-bound manner. Therefore, consequential directions were issued to the Government of Tamil Nadu to issue a fresh Government Order, devoid of such anomalies.
Consequently, the Government of Tamil Nadu issued a circular on September 28, 2022 (“2022 Circular”) with revised guidelines for the issuance of legal heirship certificates. The 2022 Circular drew a distinction based on marital status of the deceased in the following manner:
- in case of a deceased who was married, the relative , father, mother, spouse, son(s) or daughter(s) shall apply for the legal heirship certificate;
- in case of a deceased who was unmarried, the next to kin , father, mother, brother(s) or sister(s) could apply for legal heirship certificate.
The latest circular also provides for appeal and revision provisions, which is a paradigm shift from the earlier circular and a sign of good governance. This circular has been carefully worded and has been made applicable to everyone without any difference based on religion or gender.
To conclude, a legal heirship certificate is akin to a relationship certificate reflecting the Tahsildar’s he relationship between the deceased and his/her survivors. It does not affect the legal right or status of the survivors vis-à-vis the deceased, which is protected by the respective personal laws of the land. This is also not analogous to a succession certificate issued by the courts under the Indian Succession Act, 1932. However, the 2022 Circular, which is an outcome of the landmark judgment in P. Venkatachalam’s case, appears to be a well laid path forward to protect both individual rights and common good.
For further information, please contact:
Abhilash Pillai , Partner, Cyril Amarchand Mangaldas
abhilash.pillai@cyrilshroff.com
[5] 2013 CDJ MHC 6017
