The Madurai Bench of the Madras High Court has held that when a brother or a sister apply for legal heirship certificate of their deceased brother or sister who died without leaving any Class - I heir, then the same can be examined by the Tahsildar. The legal heirship certificate can be issued if there are no rival claimants.
Justice C.V. Karthikeyan observed that though in law, a brother or a sister would only be a Class - II legal heir, but if the deceased died a bachelor or a spinster or after marriage had died issueless and the spouse had also predeceased him/her, then forcing a party to go to a civil court, particularly when there is no defendant to contest the claim, would only be encouraging a legal fiction to be created.
The judge observed that the suit would only be a mockery as it would still be a plaint filed by a plaintiff with no defendant and the court would also proceed only on the basis of the facts pleaded and pass an order in accordance with the relief sought. A judicial proceeding may not always be the proper forum to check the bona fide of an application seeking legal heirship certificate, the judge said.
Tahsildar or Village Administrative Officer would know the details of the family and would be in a better position to examine whether the applicant has come forward with a bona fide application or not. There cannot be a shifting of this burden to the civil court in all cases and the revenue authorities have a duty to discharge in this regard, the judge said. Disposing of a batch of petitions, the court referred to the judgments passed in this regard by the High Court and issued a set of directions to the Tahsildars.
The judge said that if the deceased had two wives during his lifetime, the parties will have to approach the civil court seeking legal heirship certificate. If it is an issue of claiming legal heirship certificate for a deceased brother or sister and when there are no rival claimants, Tahsildars have to make necessary enquiry and proceed to issue legal heirship certificate. If there are rival claimants, even among Class - II legal heirs or the status of the applicant is disputed, then the Tahsildars have to direct the parties to resolve the issues before the civil court, the judge said.
