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2021 DIGILAW 686 (KER)

Rohini S. T. v. Tahsildar, Taluk Office

2021-07-30

P.B.SURESH KUMAR

body2021
JUDGMENT : The question falls for consideration in this matter is whether the competent authority for grant of heirship certificate sought by the petitioner is justified in insisting copy of the First Information Report lodged in connection with the missing of the father of the petitioner for granting the said certificate excluding the name of her father. 2. The mother of the petitioner died on 14.02.2013. It is stated by the petitioner that her father Thankappan had left the company of her mother and the petitioner, about 30 years ago and his whereabouts are not known to them thereafter. It is stated that earlier also, the father of the petitioner had left the company of her mother and came back after one and a half years, and it is in the said circumstances that the mother of the petitioner did not lodge any complaint with the police in connection with the missing of her father, expecting that he would come back. Since the whereabouts of the father of the petitioner is not known for the last more than 30 years, on the death of the mother of the petitioner, the petitioner preferred an application for heirship certificate. The case of the petitioner is that since the deceased does not have any blood relatives other than the petitioner, and since the whereabouts of her father is not known for the last more than 30 years, it has to be certified by the competent authority that the petitioner is the sole heir of her deceased mother. In the enquiry conducted pursuant to the said application, it was revealed to the competent authority that the petitioner and her father are the only heirs of the deceased and that the whereabouts of her father is not known for the last more than 30 years. Nevertheless, it is stated that the competent authority, namely the first respondent has issued Ext.P11 communication to the concerned Village Officer to require the petitioner to re-submit the application with a copy of the First Information Report lodged in connection with the missing of the father of the petitioner. The petitioner is aggrieved by Ext.P11 communication. Nevertheless, it is stated that the competent authority, namely the first respondent has issued Ext.P11 communication to the concerned Village Officer to require the petitioner to re-submit the application with a copy of the First Information Report lodged in connection with the missing of the father of the petitioner. The petitioner is aggrieved by Ext.P11 communication. The case set out by the petitioner in the writ petition is that since the mother of the petitioner did not lodge any complaint in connection with the missing of the father of the petitioner having regard to his previous conduct, the petitioner is unable to obtain heirship certificate on account of the insistence of the copy of the First Information Report by the authorities. It is also the case of the petitioner that the insistence of the document aforesaid, in the facts and circumstances of the case is unreasonable, arbitrary and unjust. The petitioner, therefore, seeks appropriate directions in this regard in the writ petition. 3. Heard the learned counsel for the petitioner as also the learned Government Pleader. 4. The learned counsel for the petitioner pointed out that it was revealed in the enquiry conducted by the Village Officer that the whereabouts of the father of the petitioner is not known for the last more than 30 years, and when the materials available before the competent authority indicates that if a person has not been heard of for more than seven years by those who would have naturally heard of him if he had been alive, the competent authority is bound to presume, in the light of Section 108 of the Indian Evidence Act that he is dead and issue heirship certificate without including his name in the certificate. It was contended by the learned counsel that there is no legal basis for insisting copy of the First Information Report lodged in connection with the missing of persons invariably in all cases. 5. Per contra, the learned Government Pleader submitted that a copy of the First Information Report lodged in connection with the missing of persons is insisted while issuing heirship certificate to maintain consistency in the procedure for grant of heirship certificate and the insistence of the said document cannot, therefore, be said to be unreasonable, arbitrary or unjust. 6. I have considered the submissions made on behalf of the parties on either side. 7. 6. I have considered the submissions made on behalf of the parties on either side. 7. Section 108 of the Indian Evidence Act reads thus: 108. Burden of proving that person is alive who has not been heard of for seven years. –– [Provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is 2 [shifted to] the person who affirms it. In terms of the extracted provision, if it is established that a person has not been heard of for more than seven years by those who would naturally have heard of him if he had been alive, the burden of proving that the person is alive is on the person who affirms it. In other words, if a person has not been heard of for more than seven years by those who would have naturally heard of him if he had been alive, in the absence of any materials to show that he is alive, he can be presumed to have been dead. The first respondent does not have a case that the father of the petitioner is alive or that he has been heard of during the last 30 years by the petitioner or any of her relatives. On the other hand, it was revealed in the enquiry conducted on the application preferred by the petitioner that the father of the petitioner has not been heard of for more than 30 years. The enquiry has been conducted by the Village Officer, Aluva East. Ext.P9 is the report submitted by the Village Officer in this regard. The relevant portion of Ext.P9 report reads thus: Of course, the procedure for grant of heirship certificate shall be consistent, but the same shall not result in injustice to the parties. In the case on hand, the explanation offered by the petitioner for not lodging the First Information Report in connection with missing of her father is that having regard to the previous conduct of her father, the family expected bona fide that he would come back after some time. In the case on hand, the explanation offered by the petitioner for not lodging the First Information Report in connection with missing of her father is that having regard to the previous conduct of her father, the family expected bona fide that he would come back after some time. The family of the petitioner, according to me, cannot be blamed for having not lodged any First Information Report with the police in a case of this nature. If the family cannot be found fault with for having not lodged the First Information Report, the denial of heirship certificate to the petitioner would be certainly arbitrary, so long as the competent authority does not affirm that the father of the petitioner is alive. I take this view also for the reason that in so far as the competent authority does not entertain a doubt to the stand of the petitioner aforesaid, the petitioner would certainly be issued heirship certificate applied for after seven years, if she lodges a First Information Report now concerning the missing of her father. It is seen that on similar facts, in W.P.(C) No.8107 of 2010, this Court held that if it is reasonably certain that the person went missing and he has not been heard of for more than seven years, he shall be presumed to have been dead. In the said view of the matter, the writ petition is allowed and respondents 1 and 2 are directed to issue the heirship certificate sought by the petitioner forthwith, without insisting copy of the First Information Report, if any, lodged in connection with the missing of the father of the petitioner. This shall be done within the minimum period required for issuance of such certificates.