Demystifying the law on legal heirship certificate

The requirement of obtaining legal heirship certificate arises upon the sudden and untimely demise of a family member. The kith and kin would be undergoing inexplicable mental trauma and pain due to the sudden vacuum created in the house. This tragedy is further intensified by the Revenue Department, as the dependents are made to face the harrowing experience of running from pillar to post to complete the cumbersome procedures for obtaining a legal heirship certificate.

One should also be cognizant of the fact that this certificate is a sine qua non for processing other applications in government offices. Hence, it is a mandatory arduous journey one is compelled to undergo.

The issuance of legal heirship certificate is state-specific, as certain states like Maharashtra and Odisha have special enactments, while others don’t. In Tamil Nadu, there is no separate legislation, and it is only the administrative circulars issued by the State government from time to time that have been followed by the authorities for issuance of legal heirship certificates.

While issuance of legal heirship certificates to class I heirs of the deceased remains uncontroverted, the cusp of the controversy is only with regard to issuance of legal heirship certificate to class II heirs, in the absence of class I heirs.  

Chronology of circulars

There is no provision under the Registration of Births and Deaths Act, 1969, or any other Act or Rules, empowering the revenue authorities to issue a legal heirship certificate. The source of power is not traceable to any statute or subordinate legislation, but is purely an executive fiat.

April 27, 1979 - Erstwhile Board of Revenue prescribed the issuance of legal heirship certificates as one of the duties of the Tahsildar.

April 3, 1987 - After the Board of Revenue was abolished in 1980, the Government of Tamil Nadu issued G.O.Ms.No.581, revising the earlier duties and responsibilities prescribed for Revenue Divisional Officers and Tahsildars. The issuance of legal heirship certificates is enumerated as one of the duties of the Tahsildar in the Annexure to this Government Order.

November 28, 1991 - The Special Commissioner for Revenue Administration issued a letter prescribing various guidelines for issuance of legal heirship certificates by Tahsildars.

August 9, 2017 - The Principal Secretary, Commissioner of Revenue Administration, issued a circular prescribing detailed guidelines for the issuance of legal heirship certificates. Paragraph 7 of this circular prohibited the Tahsildar from issuing legal heirship certificates in respect of certain categories enumerated therein.

September 24, 2019 - The aforesaid guidelines were revised by Circular No.9 of 2019 issued by the Commissioner of Revenue Administration. This circular drew a dichotomy between class-I (or what the circular terms as “direct”) legal heirs and class-II (or “indirect”) legal heirs. Paragraph 8(i) of this circular prohibited the issuance of legal heirship certificates to class-II legal heirs.

Judicial dichotomy

The Madras High Court in Vasantha Raman v. Revenue Inspector, M Arumugam & Others v. The Tahsildar, Madurai South, TS Renuka Devi v. The Tahsildar, R Lokesh Kannan v. The District Collector, Madurai District, NR Raja v. The Tahsildar, Madurai South and Indrani Palaniappan v. The Tahsildar opined that if a person dies without leaving any class-I heir, then the Tahsildar upon examination can issue legal heirship certificate to class-II heirs, if there are no rival claimants.

The courts have consistently held that relegating the party to the civil court would be perfunctory as there would be no defendant to contest the claim and the entire process would be a mockery and would only result in proliferation of litigation.

Subsequent to that, the Madras High Court in P Venkatachalam v. Tahsildar took a divergent view and opined that the revenue authority does not have the power to issue legal heirship certificates to class-II legal heirs by predominantly referring to Thirumurthy v. Collector of Chennai. The Court further held that it was impossible for the Tahsildar or revenue officials to know each and every individual in his locality and that delegating the power to the revenue officials to issue class-II legal heirship certificate would have disastrous consequences. Further, it was held that it would be against the spirit of the enactment and reading something into the Succession Act, conducting roving enquiry cannot be done by the revenue officials, as appreciation of materials is a judicial duty and not within the realm of the revenue officials. As the contradictory viewpoints were irreconcilable, the issue was referred to a larger bench for clarity.

The larger bench, after exhaustive consideration of the judicial discord, opined that the latest circular issued in September 2019 by the Commissioner of Revenue Administration is riddled with several anomalies and legal misconceptions. A few of them being:

• Para 3 of the circular which enumerates the “direct legal heirs” which is a replica of what is found under Section 8 of the Hindu Succession Act. Thus, applying Section 8 to applicants of other religions irrespective of the deceased being male or female or belonging to a religion other than a Hindu would result in preposterous outcomes.

• Exclusion of father from obtaining legal heirship certificate on the ground that he is a class-II legal heir.

• To compound the confusion, para 5(3) of the circular states that parents (including father) can apply for issuance of LR certificate in case the deceased was unmarried.

• By virtue of para 8 of the letter, brother stands excluded from applying for LR certificate.

The Court felt that applying Section 8 of the Hindu Succession Act to Muslims or Christians would result in startling outcomes, and hence directed the government to issue a fresh circular devoid of the defects pointed out. The Court further held that the decisions in N Dhanalakshmi v. The District Revenue Officer, Salem, and E Thirumurthy v. Collector of Chennai - which opined that the Tahsildar has no power to issue certificates of this nature - stands overruled. The Court also clarified that the legal heirship certificate issued by the Tahsildar cannot be equated to that of the succession certificate issued by the Court under the Indian Succession Act,1925.

The new circular

The wait for a fresh circular has come to an end after the government issued the same on September 28, 2022 laying down guidelines for issuance of legal heirship certificate. Taking a cue from the full bench judgment, the government has drawn a distinction on the basis of marital status. In case of deceased (married) – father, mother, spouse, son(s) or daughter(s) shall apply; while in case of deceased (unmarried) - father, mother, brother(s) or sister(s) shall apply for legal heirship certificate. The unwarranted complications in the earlier circular have been rightly cropped in the new circular. The latest circular also provides for appeal and revision provisions, which were missing in the earlier circular. This circular has been carefully worded and has been made applicable to everyone without any difference based on religion or gender.

The job of the executive has been made seamless subsequent to the verdict of the full bench. The executive had to merely rectify the mistakes pointed out by the judiciary and reissue a fresh circular that is sans the striking lapses. The executive could have saved its skin, had it been vigilant enough and avoided the sloppy exercise of ‘cut-copy-paste’ of provisions from the Hindu Succession Act, and applying it to all religions, thereby resulting in bizarre consequences. It ought to be mindful and conscious of the fact that courts have constantly reprimanded litigants for wasting the court’s precious time.

Indu Priya Kameswaran is a practising advocate at the Madras High Court.