R.JANAKI Vs. TAHSILDAR

JUDGEMENT

(1.) 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 Sec. 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 dtd. 29/9/2022 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 Sec. 108 of the Indian Evidence Act corresponding to Sec. 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.