Madras High Court
M/S. Chrome Leather Company Ltd vs The Collector on 1 February, 2008
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:01-2-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.33248 and 33249 of 2007 and connected miscellaneous petitions ..... M/s. Chrome Leather Company Ltd., rep. By its Manager A.Selvakumar No.7 Works Road, Chrompet Chennai 44. ..Petitioner in both WPs. vs. 1.The Collector Kancheepuram District Collectorate Kancheepuram. 2.The Tahsildar Tambaram Taluk Kancheepuram District Tambaram 600 045. 3.George Joseph Chambers ..Respondents in both WPs. Writ petitions filed under Article 226 of the Constitution of India for the issue of a writ of Certiorarified Mandamus and Certiorari as stated therein. For petitioner : Mr.R.Thiayagarajan,Sr.Counsel in both WPs. for Mr.V.Balakrishnan For respondents : Mr.G.Shankaran,Spl.Govt.Pleader 1 & 2 in both WPs. For 3rd respondent: Mr.C.Nambiraj in both WPs. .. COMMON ORDER
The writ petitioner has filed W.P.No.33248 of 2007, challenging the order of the first respondent, District Collector, Kancheepuram dated 26.02.2007 and for direction against the first respondent to cancel the legal heir certificate dated 05.08.2001 issued by the second respondent, Tahsildar, Tambaram Taluk in favour of the third respondent, and W.P.No.33249 of 2007 challenging the legal heir certificate issued by the second respondent, Tahsildar, Tambaram Taluk in favour of the third respondent.
2. The petitioner is a Company incorporated under the Indian Companies Act,1913 and the management of the Company was vested with one George Alexander Chambers, who established the same. According to the petitioner Company, the said George Alexander Chambers has executed a Will converting his entire business into single limited liability, by sale of assets to the company the consideration being allotment of ordinary and preferential shares of the Company. After the death of the said George Alexander Chambers, certain legal proceedings were initiated and there was some compromise in the year 1965, which was recorded, by which the management of the petitioner Company was vested with the Directors, and thereafter, the Directors of the petitioner Company sold the entire shares to one Mr.Nagappa Chettiar and there was a reconstitution of Board of Directors with Nagappa Chettiar and his nominees, who took the petitioner Company along with its assets.
2(a). The Company represented by the said Nagappa Chettiar, who had absolute control over the movable and immovable properties, is stated to have mortgaged the assets of the Company to Central Bank of India for securing certain loan. Due to the non-payment of the amount, the Central Bank of India has filed a suit for recovery against the Company as well as its Directors in O.S.No.314 of 1980 on the file of Sub Judge, Chengalpattu. A compromise was entered in the said suit and a compromise decree was passed in the year 1981, by which the nominees of the Central Bank of India were inducted as Board of Directors of the Company.
2(b). For realisation of dues payable by the Company to the Bank, a public auction was conducted by the Central Bank of India in the year 1993, in which one M/s.V.K.K. Charities was declared as highest bidder. Being the highest bidder, the said M/s.V.K.K.Charities nominated the present management for purchase of the shares of the petitioner Company and after payment of entire sale consideration, the present management has taken over the petitioner Company. It was at that point of time, the third respondent claiming to be the legal heir of one Mrs.Ida L.Chambers, stated to be the third wife of George Alexander Chambers, initiated various proceedings.
2(c). On an application stated to have been made by the third respondent to the second respondent, Tahsildar, Tambaram Taluk on 03.08.2001, the second respondent has issued a legal heir certificate to the third respondent on 05.08.2001, stating that the third respondent is a sole surviving legal heir, as he is a only one grandson of Mrs.Ida L.Chambers, third wife of Late George Alexander Chambers.
2(d). According to the petitioner, the said legal heir certificate was obtained by the third respondent by producing various forged documents, including the death certificate of one K.H.Chambers, who is the biological father of the third respondent. It is the case of the petitioner Company that the third respondent has produced the forged death certificate of his father K.H.Chambers, as revealed by the letter of the Corporation of Chennai dated 06.07.2007, stating that the Corporation has not issued such death certificate. It is also stated in the death certificate as if Mrs.Ida L.Chambers is the mother of K.H.Chambers. According to the petitioner, the biological mother of K.H.Chambers is one Mrs.Ethel Mary Chambers, who is the first wife of Late George Alexander Chambers. It is the further case of the petitioner that the third respondent has also produced the death certificate of Mrs.Ida L.Chambers, which according to the petitioner is a forged document, as confirmed by the Corporation of Chennai in its letter dated 06.07.2007, stating that the Corporation has not issued such certificate. It is the further case of the petitioner a certificate stated to have been issued by the Church, which is an extract from the register of Baptism kept at St.Francis Church, Pallavaram dated 26.01.1997. On verification, it was found that the record maintained by the said Church is totally different from that of the certificate produced by the third respondent. The certificate produced by the third respondent pertains to one Mr.Joseph, whose father name is stated as Narayanan.
2(e). It is the further allegation of the petitioner that the extract from the register of Baptism pertains to Mrs.Juliet Chambers, who was born to G.J.Chambers and Margaret Volga Chambers, while that said G.J.Chambers in his sworn statement before the Tahsildar has stated that Mrs.Julit Chambers is the sister of his father K.H.Chambers. It is also stated that the third respondent has relied upon a ration card, which does not contain the signature of the authority who has issued the same. It was based on those records, the third respondent has obtained legal heir certificate from the second respondent on 05.08.2001, stating as if he is the sole surviving legal heir of Mrs.Ida L.Chambers, wife of Late George Alexander Chambers. The third respondent has started claiming right over the property which has been vested with the petitioner Company by due process of law as stated above.
2(f). It was, in those circumstances, the petitioner Company has made representation to the first respondent, Collector, Kancheepuram District on 19.05.2007, to conduct enquiry into the said legal heir certificate issued in favour of the third respondent. Since no order was passed, the petitioner has filed W.P.No.25475 of 2007, for direction to the first respondent to conduct enquiry. There was a direction given by this Court to the first respondent to conduct enquiry on the representation of the petitioner and pass orders within a period of six weeks. It was thereafter, the first respondent by communication dated 27.08.2007, directed the second respondent, who has issued the said legal heir certificate based on the above said documents submitted by the third respondent, to conduct detailed enquiry and submit a report. The enquiry conducted by the second respondent is in total violation of the guidelines issued by the Special Commissioner and Secretary, Revenue Department dated 28.11.1991. However, in the enquiry, the petitioner was directed to seek remedy through Court of law, especially when the first respondent has found that the certificate issued by the second respondent is contrary to fact and the same is illegal.
2(g). In these circumstances, the petitioner has filed the above writ petitions, one challenging the order of the first respondent dated 29.06.2007, directing the petitioner to approach the Civil Court, holding that the legal heir certificate issued by the second respondent dated 05.08.2001, is not valid and the other challenging the legal heir certificate issued by the second respondent dated 05.08.2001 on various grounds, including that the respondents have not taken into consideration that the third respondent has played fraud in preparing various forged documents for the purpose of obtaining legal heir certificate, which fact has been admitted by the first respondent in his impugned order dated 26.09.2007, and in spite of the same, directed the petitioner to approach the Civil court. According to the petitioner Company, on the specific finding by the first respondent that the legal heir certificate issued by the second respondent dated 05.08.2001, is not valid in law, the first respondent ought to have directed the third respondent to approach the Court, especially when the petitioner is a lawful owner having purchased the property in Court auction sale under due process of law.
3. The first respondent in the counter affidavit while admitting all the above said factual position, has stated that considering various documents placed on either side, the application of the petitioner was disposed of on 26.09.2007, stating that the Civil Court alone can assess the genuineness of the records produced by the third respondent and directing the petitioner to seek remedy through court of law. It is the further case of the first respondent that the second respondent has issued the legal heir certificate on 05.08.2001, based on the documents produced by the third respondent. It is the further case of the first respondent in the counter affidavit that various points raised by the petitioner show that the documents produced by the third respondent are forged documents, and the same are to be verified and the genuineness of the said documents has not been considered by the Tahsildar who, being the competent authority, can only issue the legal heir certificate based on the documents produced before him.
3(a). It is also denied that the enquiry regarding issuance of legal heir certificate was conducted in contravention of the guidelines issued. It is the further case of the first respondent that inasmuch as there was no application from the direct legal heirs of Late George Alexander Chambers, the application given by the third respondent was considered for issue of legal heir certificate. It is the case of the first respondent that the correctness of the documents produced before the authorities cannot be decided by them, but the same can be decided only by the Civil Court and in view of the said legal position, the impugned order came to be passed by the first respondent, directing the petitioner to approach the appropriate forum, since it was the petitioner, who has made a complaint against the second respondent, in respect of the legal heir certificate issued in favour of the third respondent.
4. The third respondent in the counter affidavit has stated that Late George Alexander Chambers was having three wives, which was usual in the European community, since he was an employee of East India Company. According to the third respondent, he is the son of K.H.Chambers, who in turn, is the son of Late. George Alexander Chambers through his first wife, viz., Ethel Mary Chambers. The said George Alexander Chambers married Mrs.Margaret Agnes as his second wife, through whom there was only one son viz., Roy Edwin Metcalf Chambers. Again, George Alexander Chambers married his third wife, viz., Mrs.Ida L.Chambers, who was issueless. The third respondent has been working as a sailor, settled at Pallavaram, the place where the name of George Alexander Chambers is well known.
4(a). According to the third respondent, he is the only male descendant of George Alexander Chambers and the conduct of the petitioner in taking the entire properties of George Alexander Chambers by ignoring the third respondent, who is the legal heir, is dubious in character. It is the case of the third respondent that, after his retirement, in order to get back the property of his grandfather, he has applied for succession certificate, which was issued by the second respondent. Being the grand son of George Alexander Chambers and next of kin of Mrs.Ida L.Chambers, there is no dispute that he is the legal heir. According to the third respondent, the issue relates to the disputed question of fact, which cannot be decided by this Court under Article 226 of the Constitution of India and therefore, the writ petitions are not maintainable.
4(b). By passage of time, the third respondent is the only surviving legal heir to the estate of George Alexander Chambers. According to the third respondent, George Alexander Chambers has executed a Will, under which the beneficiaries are Mrs.Ida L.Chambers and Roy Edwin Metcalf Chambers and the said Will was probated by Mrs.Ida L.Chambers and she became the administrator and it was at the instance of Mrs.Ida L.Chambers, George Alexander Chambers was made to ignore the third respondent and others, who are the successors through the other two wives. Therefore, according to the third respondent, the Will of George Alexander Chambers itself is tainted one. According to the third respondent, it was the said Mrs.Ida L.Chambers, who has liquidated the entire properties of George Alexander Chambers and in addition to that she has transferred the property in connivance with Nagappa Chettiar and others and therefore, the Will of the George Alexander Chambers is to be ignored. While so, the compromise entered based on the said Will is not binding upon the third respondent. It is the further case of the third respondent that the claim of the petitioner over Chrome Leather Factory is based on forged documents and according to the third respondent, he has produced all original documents to the second respondent for obtaining the legal heir certificate and therefore, the legal heir certificate issued by the second respondent dated 05.08.2001, should be held valid.
5. The writ petitioner has filed a reply affidavit wherein, while reiterating all the facts stated earlier, it is stated that inasmuch as the petitioner is the purchaser and the property has been vested with the petitioner Company in the manner known to law, there cannot be direction to the petitioner to approach the Civil Court, since it is only the third respondent, who has made a claim to the second respondent to issue legal heir certificate and therefore, merely because the petitioner has given some representation, it does not mean that the petitioner Company should be made to approach the Civil Court. Therefore, according to the writ petitioner, the impugned orders show that there is total non-application of mind. It is the further case of the petitioner that first and second respondents, being the authorities entrusted with statutory powers, have to perform the same based on the guidelines issued by the Government, and when the grave issue of forgery has been raised, it was the duty of the respondents to conduct fair enquiry and give a finding of the fact.
6. Mr.R.Thiayagrarajan, learned senior counsel appearing for the petitioner would submit that various documents produced by the third respondent to the second respondent for issuance of legal heir certificate prima facie proved to be forged in nature. According to the learned senior counsel, on the basis of the communication by the authorities concerned, who are stated to have issued various certificates produced by the third respondent to the second respondent, the factum of forgery has been proved and therefore, the impugned order of the second respondent dated 05.08.2001 has to be set aside. As far as the order of the first respondent dated 26.09.2007 is concerned, the same was not passed by application of mind, especially when this Court has already directed the first respondent to conduct enquiry and pass orders. According to the learned senior counsel when the second respondent has issued the impugned legal heir certificate dated 05.08.2001, the correctness of which was directed to be enquired by the first respondent, it is strange that the first respondent has directed the second respondent himself to conduct enquiry and submit a report. In any event, the first respondent having found the point in favour of the petitioner, ought to have set aside the legal heir certificate issued by the second respondent. Considering the various discrepancies, which are prima facie shown, the learned senior counsel would submit that based on the judgement of the Supreme Court in Ambika Prasad Thakur and others vs. Ram Ekbal Rai (dead) by his legal representatives and others (AIR 1996 SC 605), the order of the first respondent, District Collector, Kancheepuram should be set aside. The learned senior counsel would submit that the procedure contemplated for the purpose of issuance of legal heir certificate has been issued by the Special Commissioner and Secretary, Revenue Department in the letter No.1534 dated 28.11.1991 and in the absence of statutory rules, the same should be referable as the executive instructions binding on the authorities as per Article 162 of the Constitution of India. He would also rely upon the judgements of this Court in N.Dhanalakshmi vs. The District Revenue Officer,Salem and 2 others (2002 (2) CTC 228), V.Veonickammal vs. The Director of School Education, Madras and others (1997 (2) L.W. 538) and the judgement of the Supreme Court in Quadrata Ullah vs. Municipal Board, Barailly (1974 (1) SCC 202) in this regard.
7. On the other hand, Mr.Nambirajan, learned counsel appearing for the third respondent would submit that the petitioner Company itself has approached the Civil court by filing O.S.No.189 of 2007 on the file of District Munsif, Alandur and in such circumstances, the writ petition is not maintainable. According to him, even though the third respondent has also filed a suit in O.S.No.583 of 2006 for injunction, the same has been withdrawn. He would also rely upon the judgement of the Madras High Court in Surfoji vs. Kamakshiammal and others (ILR (Madras-7) 452) to substantiate his contention that there is no infirmity in the Collector's order. He would also rely upon Section 48 of the Succession Act to contend that being the nearest relative of George Alexander Chambers, the third respondent is entitled to claim as the legal heir of George Alexander Chambers. He would also submit that the second respondent has issued a legal heir certificate on 05.08.2001 and after the lapse of six years, the validity of the said certificate is challenged and therefore, the writ petitions are liable to be dismissed on laches. His further submission is that since the petitioner itself has resorted to the Civil Court, the writ petitions have to be dismissed as infructuous.
8. He would submit that by filing these writ petitions the petitioner only wants to decide about the title in respect of the property, which cannot be done. His further submission is that what is given by the second respondent is only a relationship certificate, which has no legal consequence at all, unless the civil Court gives a final verdict. He would also rely upon a decision of the Company Law Board reported in 1992 (7) Company Law 189 (CLB) to contend that once a legal heirship of the third respondent is considered, it is the duty of the petitioner Company to transmit the shares and according to him, since the petitioner is stated to have purchased the assets belonging to George Alexander Chambers, the third respondent is entitled to get the legal heir certificate and make a claim against the petitioner based on the said certificate. He would also submit that since the petitioner has approached the civil Court, it has to wait till the civil Court decides the issue and the relationship certificate issued by the second respondent has no legal consequence.
9. I have heard the learned senior counsel for the petitioner and respondents and perused the entire records and given my anxious thoughts to various points raised by the respective counsel.
10. On perusal of the entire documents, the following facts which are relevant for the purpose of this case can be culled out. George Alexander Chambers appears to be the original owner of vast extent of properties in Jameen Pallavaram Village by virtue of purchase in a public auction in 1913, which was subsequently confirmed in certain insolvency proceedings and sale deed was executed in his favour on 17.11.1917 by the Official Assignee, High Court, Madras. The said George Alexander Chambers married Ethel Mary Chambers, through whom, he had one son and two daughters, viz., K.H.Chambers, Mrs.Fellice Dora and Mrs.Sheela Florence. The third respondent in these writ petitions, viz., George Joseph Chambers, is the son of the said K.H.Chambers. The said first wife of George Alexander Chambers, viz., Ethel Mary Chambers died on 23.03.1924.
10 (a). The George Alexander Chambers appears to have run some business, as Chrome Leather Company, dealing with manufacture of leather products. It appears that he again married Mrs.Margaret Agnes, as his second wife on 28.06.1924, after the death of his first wife. Through his second wife, he had a son by name, Roy Edwin Metcalf Chambers, who has married Elsa L.Chambers, through whom children were born. The said Mrs.Margaret Agnes died on 02.02.1927. Thereafter, George Alexander Chambers married Mrs.Ida L.Chambers on 18.12.1930 and admittedly, through his third wife, George Alexander Chambers had no issues. The said George Alexander Chambers is stated to have executed a Will on 18.12.1930, in which he has made Roy Edwin Metcalf Chambers, his son through his second wife and Mrs.Ida L.Chambers, his third wife as the beneficiaries by creating a Trust, in which the said Mrs.Ida L.Chambers and some other persons have been made as Trustees. Thereafter, George Alexander Chambers died on 16.11.1937. The said Will of George Alexander Chambers dated 18.12.1930 was probated on 15.03.1938. The said George Alexander Chambers appears to have executed a Codicil in 1931, by which he has appointed one Vellore Parthasarathy Jegannatha Mudaliar as Executor in the place of H.W.Maguire as mentioned in the Will dated 18.12.1930 and it was after the Codicil, the Will was probated as stated above.
10(b). It is seen that based on the said power, the said Executor, Vellore Parthasarathy Jegannatha Mudaliar, has sold various properties in favour of M/s.Chrome Leather Company Limited under a registered sale deed dated 14.03.1944, as per the terms of the Will. The said M/s.Chrome Leather Company Limited, was stated to have incorporated under the Indian Companies Act,1913, at the instance of George Alexander Chambers. After the death of George Alexander Chambers, it appears that there has been many litigations, including C.S.No.311 of 1950 filed by Roy Edwin Metcalf Chambers against Mrs.Ida L.Chambers and others, including the joint Executor Vellore Parthasarathy Jegannatha Mudaliar and there has been appointment of Receivers in addition to the said Vellore Parthasarathy. That apart, Mrs.Ida L.Chambers and others have also filed another suit in C.S.No.2 of 1964, and there was a compromise in the said suit along with another suit in C.S.No.93 of 1963 filed by Roy Edwin Metcalf Chambers, by which a consent decree was passed on 19.02.1965, putting an end to the Trust created as per the Will of George Alexander Chambers and making Mrs.Ida L.Chambers and Roy Edwin Metcalf Chambers as legal heirs of George Alexander Chambers to divide the corpus of the property to obtain absolute estate, which was based on an agreement dated 07.01.1965.
10(c). Thereafter, it appears that the shares of the petitioner Company were sold by Mrs.Ida L.Chambers to one Mr.Nagappa Chettiar, as per the agreement dated 21.04.1965. Mrs.Ida L.Chambers has executed a Will on 29.10.1949, by entrusting all her residuary properties to various Charitable Organisation, making the Chartered Bank of India, Australia and China, to be the Executor and Trustees and directing the Bank to release the amounts due to her from M/s.Chrome Leather Company Ltd., Chrompet and the said Will was also subsequently probated in O.P.No.178 of 1969 by way of Letters of Administration on 29.04.1969. In a road accident, Mrs.Ida L.Chambers died on 13.08.1968.
10(d). It is seen that the Central Bank of India, Australia and China, who was entitled to recover the money from M/s.Chrome Leather Company Limited as per the Will of Mrs.Ida L.Chambers has also filed O.S.No.314 of 1980 in the Sub-Court, Chengalpattu against M/s.Chrome Leather Company Ltd., represented by its Directors, Nagappa Chettiar and others and ultimately, a Memorandum of Compromise was entered on 19.10.1981. By the said compromise, the nominees of the Central Bank of India, Australia and China, were inducted to be the Board of Directors of the petitioner Company.
10(e). In the year 1993, the Central Bank of India, Australia and China have brought 4994 equity shares of the petitioner Company for sale, in which one M/s.V.K.K. Charities was declared to be the highest bidder and the said highest bidder has nominated the present management of the petitioner for purchase of shares of the petitioner Company and in that way, the present management in administration of the petitioner Company. There appears to be some proceedings before BIFR and certain nominations have been made and the same was subsequently concluded.
10(f). In all these proceedings, the third respondent, has not claimed to be the legal heir of Mrs.Ida L.Chambers, since his natural father K.H. Chambers was born to George Alexander Chambers, through his first wife Ethel Mary Chambers. By virtue of the testamentary succession enumerated above, the properties were given to Mrs.Ida L.Chambers and thereafter, as per the decree passed by this Court, both Mrs.Ida L.Chambers as well as Roy Edwin Metcalf Chambers have taken over the property and the same has been sold to the petitioner Company and in all those proceedings the petitioner has never raised any objection. However, the third respondent appears to have applied to the second respondent, Tahsildar, Tambaram, for issuance of legal heir certificate and the second respondent has also issued the same on 05.08.2001, stating that the third respondent is the only legal heir of George Alexander Chambers, as his grandson and the said certificate was stated to have been given for the purpose of changing the name in the property tax, water supply, electricity supply etc. and for payment of tax to the Corporation, apart from operating the bank accounts and that certificate is under challenge by the petitioner Company in WP.No.33249 of 2007.
11. It is seen that based on the said certificate issued by the second respondent, the third respondent has filed a suit in O.S.No.583 of 2006 on the file of District Munsif Court, Alandur for permanent injunction against the present Directors of the petitioner Company from interfering or trespassing into the property to an extent of 1.16 acres in Survey No.519/1A and 520/2A situated at Chromepet village, Tambaram Taluk. Even though the learned counsel for the third respondent Mr.Nambirajan has submitted that the third respondent has withdrawn the said suit, there is no such proof filed before the Court, since the same is disputed by the learned senior counsel for the petitioner.
12. It is also seen on record that the petitioner has filed O.S.No.189 of 2007 against the third respondent and another person for permanent injunction restraining the third respondent and another from interfering with the petitioner's possession in the total extent of 79.24 acres of land situated at No.103, Tiruneermalai Village, on the basis that the petitioner Company has become the owner of the property under due process of law and the same is pending.
13. The petitioner made representation to the first respondent, District Collector on 19.05.2007, informing the first respondent that the second respondent has issued the legal heir certificate without conducting detailed enquiry as to the veracity and truthfulness of various documents and statements given by the third respondent and therefore, requested for re-enquiry, after giving personal hearing and pass appropriate orders. Since the first respondent has not passed any orders, the petitioner has moved this Court by filing W.P.No.25475 of 2007 and this Court while disposing of the writ petition by order dated 27.07.2007, has directed the first respondent, District Collector, Kancheepuram to dispose of the representation of the petitioner dated 19.05.2007, on merits and in accordance with law within a period of six weeks from the date of receipt of copy of the order. The operative portion of which reads thus:
" 4. Having regard to the facts and circumstances of the case, the relief sought for by the petitioner in this writ petition cannot be granted in entirety. However, as the learned counsel for the petitioner has restricted his relief to the extent of directing the first respondent to dispose of the representation, without going into the merits of the case and without prejudice to the rights of the third respondent, who was issued with the legal heir certificate by the second respondent after conducting enquiry, I direct the first respondent to dispose of the representation of the petitioner dated 19.05.2007 on merits and in accordance with law within a period of six weeks from the date of receipt of a copy of this order after affording reasonable opportunity to the petitioner and the third respondent as well."
14. It was thereafter, the first respondent has passed the order dated 26.09.2007, which is impugned by the petitioner in W.P.No.33248 of 2007. A reading of the impugned order of the first respondent dated 26.09.2007 shows that after the direction of this Court, both the petitioner as well as the third respondent have appeared before the first respondent on 27.08.2007 and submitted their written arguments with various copies of documents. It is also seen that the first respondent, District Collector has directed the Tahsildar, Tambaram, viz., the second respondent to conduct a detailed enquiry and submit his report. The second respondent is stated to have submitted his report dated 14.09.2007 to the first respondent, District Collector. Thereafter, the first respondent, District Collector, has referred to the guidelines issued by the Special Commissioner and Commissioner and Secretary to Government, Revenue Department in his letter No.1534 dated 28.11.1991, for issuance of legal heir certificate and after considering the same, passed the impugned order in the following words:
" 5. The following points are observed while perusing all connected records.
(a) In the instant case there are more than one wife to the deceased and there is a property dispute between the legalheirs.
(b) Except Mr.G.A.Chambers, other legalheirs are not living in Kanchipuram District. As per the guidelines issued by the Special Commissioner and Commissioner and Secretary to Government, such cases cannot be dealt with by the Revenue authorities.
Only competent Civil Court alone could establish the genuineness of the records produced by the G.J.Chambers. In view of the facts mentioned in para 5 above, the petitioner is informed to seek remedy through a Court of law."
Therefore, the reasoning given by the first respondent in directing the petitioner to seek remedy through Court of law is that George Alexander Chambers had more than one wife and there is a property dispute between the legal heirs and that as per the guidelines issued by the Special Commissioner and Commissioner and Secretary to Government, Revenue Department, such cases cannot be dealt with by Revenue Department.
15. It is not in much dispute that as on date, what are to be followed by the Tahsildars for issuance of legal heir certificate are the guidelines as per the letter of the Special Commissioner and Commissioner and Secretary to Government, Revenue Department in letter No.1534 dated 28.11.1991. A reference to the said letter along with the annexure which provides for various guidelines makes the following points clear:
(i) In respect of direct legal heirs, the legal heir certificate should be issued by the Tahsildar by following the existing practice;
(ii) In respect of the persons who are not direct legal heirs;
(a) In cases where the deceased person was having more than one wife or husband, having children and among them there is partition dispute which is revealed during enquiry;
(b) In cases where a person was not seen for 7 years and therefore, he should be presumed to have died, which results in the issuance of legal heir certificate; (c) In cases where the person who has applied for legal heir certificate is not living within the jurisdiction of the Tahsildar or not having any properties and failed to appear before the Tahsildar for enquiry; and
(d)In cases where the deceased person was not having any children, but he was adopting a child;
in all the above said cases, the Tahsildar shall avoid issuing legal heir certificate and direct the concerned petitioner to approach the Civil Court;
(iii) In respect of direct legal heirs, who apply for issuance of legal heir certificate along with death certificate on payment of necessary charges, the Tahsildar, shall refer the same to the Revenue Officer for enquiry. The Revenue Officer and the Village Administrative Officer, on receipt of such request from the Tahsildar, must visit the place of the petitioners, where they are living and conduct enquiry by getting statement from the petitioners and their family members and public and refer to various documents relating to the properties, including the Family Card, Will, etc., and ascertain the legal heirs of the deceased person and send a report to the Tahsildar. After receipt of such report, the Tahsildar shall consider the same, and after confirming the correctness of the said report and in cases where he gets doubt, he can call the petitioners and their family members and also the public and decide the issue. After the Tahsildar comes to a conclusion without any suspicion, he can issue the certificate in the prescribed format.
Therefore, it is clear that in cases where the person has made application for legal heir certificate, who is not a direct legal heir, he has to be directed by the Tahsildar, to approach the Civil Court. In the present case, it is not in dispute that the third respondent has applied to the second respondent for issuance of legal heir certificate for the properties of George Alexander Chambers.
16. As stated above, by various legal proceedings, the Will executed by George Alexander Chambers dated 18.12.1930 was probated in the High Court in the year 1938, by which the said George Alexander Chambers has nominated his third wife Mrs.Ida L.Chambers to succeed him and his properties and thereafter, by the subsequent legal proceedings, the said Mrs.Ida L.Chambers and Roy Edwin Metcalf Chambers, the only son of the second wife of George Alexander Chambers, viz., Mrs.Margaret Agnes, have divided the properties and the same have been sold to the petitioner Company by means of various process stated above.
17. It is also clear that even as on date the third respondent, who claims in his counter affidavit that the conduct of Mrs.Ida L.Chambers was fraudulent and she played deception towards George Alexander Chambers, has not taken any legal steps against Mrs.Ida L.Chambers, especially in the circumstances that the said Roy Edwin Metcalf Chambers filed various cases which ultimately have been settled and after the settlement, the properties have been sold under due process of law either by auction or otherwise, which was approved by the Court subsequently, and therefore, it is clear that the third respondent has chosen to raise his voice for the first time only with an eye over the property of George Alexander Chambers.
18. A reference to the report of the Tahsildar dated 14.09.2007 submitted as per the direction of the first respondent, District Collector, Kancheepuram, based on which the District Collector has passed the impugned order dated 26.09.2007, shows in clear terms the intention of the third respondent in having an eye on the property of George Alexander Chambers and also categorically finding that Mrs.Ida L.Chambers is only a Step Grandmother of the third respondent. However, the Tahsildar has chosen to state that issuance of legal heir certificate is a prerogative of the Tahsildar. The operative portion of the report of the second respondent dated 14.09.2007, reads thus:
" 9. My reply to the above three points are:
(i) There may be some infirmities in the enquiry records, but that alone should not disqualify the certificate.
(ii) This Suit O.S.No.583/2006 related to the period 2006 wherein the certificate was issued during 2001.
(iii) Ida L.Chambers was the Step grand mother to George Joseph Chambers. This Ida L.Chambers had no issue. Normally George Joseph Chambers is the grand son of G.A.Chambers with Ethel Marry Chambers. But the property's were in the name of Ida L.Chambers. Having an eye on the property George Joseph Chambers claimed as grand son to G.A.Chambers with Ida L.Chambers. Tahsildar has also issued the certificate on the same line. Further my submission is issue of legal heirship certificate is the prerogative of the Tahsildar."
19. As per the genealogical order, which has been stated earlier, the petitioner is the son of K.H.Chambers, who was born to George Alexander Chambers through his first wife Mrs.Ethel Mary Chambers. Admittedly, George Alexander Chambers has married second wife, viz., Mrs.Margaret Agnes, after the death of his first wife and through her, a son was born by name Roy Edwin Metcalf Chambers, as stated above and after the death of the second wife, George Alexander Chambers married Mrs.Ida L.Chambers as third wife on 18.12.1930, through whom there are no issues. In view of the facts stated above, viz., that George Alexander Chambers executed a Will bequeathing his properties to his third wife, Mrs.Ida L.Chambers and subsequent developments as stated above, it is clear that the third respondent cannot claim himself to be a direct legal heir of Mrs.Ida L.Chambers, since the property stood only in her name as per the Will of George Alexander Chambers. He can at the most be a grandson of George Alexander Chambers, born to his son, who was born through his first wife. Inasmuch as the properties of George Alexander Chambers have been transferred to Mrs.Ida L.Chambers by testamentary succession, as per the guidelines, the second respondent, Tahsildar ought to have directed the third respondent to approach the Civil Court, before issuing the legal heir certificate dated 05.08.2001.
20. Even assuming that the second respondent at the time of applying for legal heir certificate in 2001 was not informed by the third respondent of the fact that George Alexander Chambers married three wives, in the light of the subsequent report of the second respondent dated 14.09.2007, wherein the second respondent has clearly stated the above said entire facts, it was the duty on the part of the first respondent to apply the guidelines and the first respondent ought to have cancelled the legal heir certificate issued by the second respondent dated 05.08.2001 and directed the third respondent, who has applied for the legal heir certificate to approach the civil Court. Strangely, the first respondent has passed the impugned order dated 26.09.2007, directing the petitioner to approach the civil Court, which is not in accordance with the guidelines issued by the Special Commissioner and Commissioner and Secretary to Government, Revenue Department dated 28.11.1991. The petitioner Company has never applied for legal heir certificate and therefore, there is absolutely no necessity for directing the petitioner to approach the civil Court.
21. The contention of the learned counsel for the third respondent that the petitioner has already filed a civil suit in O.S.No.189 of 2007, which is for injunction against the third respondent from interfering with the possession of the petitioner Company, and therefore, the petitioner should be allowed to continue the suit and after decision, the validity of the legal heir certificate issued by the second respondent dated 05.08.2001 can be decided, has absolutely no basis. On the other hand, the suit in O.S.No.583 of 2006 was filed by the third respondent against the petitioner and its Directors for injunction on the basis that he is a legal heir of George Alexander Chambers or a person entitled as a "relative" of Mrs.Ida L.Chambers as per the Succession Act and the same can be decided on its own merit and it cannot be said that in the meantime the legal heir certificate issued by the second respondent dated 05.08.2001 should remain valid. Further, the learned counsel for the petitioner has produced a certified copy of the proceedings before the District Munsif Court, Alandur in O.S.No.583 of 2006, stating that the suit is posted on 03.01.2008, therefore, the submission made by the learned counsel for 3rd respondent that the suit was withdrawn may not be correct.
22. It is relevant to point out the submission of the learned counsel for the third respondent that the legal heir certificate issued by the second respondent has no legal consequence. If that is so, it is not known as to how the third respondent has filed the suit based on the said certificate issued by the 2nd respondent. As per the guidelines issued by the Special Commissioner and Commissioner and Secretary to Government, Revenue Department dated 28.11.1991, it is only the third respondent who should have been directed to approach the Civil Court and by no stretch of imagination the writ petitioner, who is the Company acquired the property and its shares in the manner known to law can be directed to approach the civil Court to declare that the petitioner Company is the lawful owner.
23. By virtue of the above said Will of George Alexander Chambers and subsequent probate and legal proceedings, including the Will of Mrs.Ida L.Chambers, which are continuous for nearly 50 years, certainly a presumption can be drawn under Section 114 of the Indian Evidence Act,1872, as held by the Supreme Court in Ambika Prasad Thakur and other vs. Ram Ekbal Rai (dead) by his legal representatives and others (AIR 1966 SC 605). The operative portion of the judgement is as follows:
" 15. ..... The question is whether such an inference should be drawn. Now, if a thing or a state of things is shown to exist, an inference of it continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in illustration (d) to S.114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. ......"
24. It is also well settled that the certificate issued by the Revenue Officials does not affect the right accrued to a person under law, as it was held in N.Dhanalakshmi vs. The District Revenue Officer (2002 (2) CTC 228), wherein E.Padmanabhan,J. has held as follows:
" 3. Consequently, the 3rd respondent had moved the first respondent. The first respondent had remitted the matter back to the Tahsildar for fresh enquiry and disposal. This order dated 6.9.1996 is being challenged. This order on the face of it cannot be sustained. But at any rate this Court need not go into the validity of the certificate issued by the Tahsildar or for that matter the order passed by the 1st respondent herein. There is no provision which had conferred power on the Revenue Authorities such as Tahsildar, Revenue Divisional Officer, District Revenue Officer to decide as to who is the legal heir or who is the successor f a deceased individual. In case of dispute as to succession or inheritance the parties have to before the competent civil court. The Competent civil court is bound to decide the dispute as to who is the legal heir and who is entitled to the properties or assets left by the deceased. The Certificates, if any issued by the Revenue Officer like Tahsildar and Revenue Divisional Officer will not in any manner affect the rights accrued to the individual by way of succession. It is open to the petitioner or the third respondent to go before the competent civil court and establish their rights and it is totally unnecessary to challenge the orders passed by the 1st respondent herein by filing the writ of Certiorarified Mandamus as the entire action is misconceived. It is unfortunate that so many persons like petitioner had been driven to the Revenue Officers like Tahsildar for legal heir certificates, which has no sanctity in law. With these directions, the writ petition is dismissed. Consequently, W.M.P.No.16871 of 1997 is also dismissed."
25. In the present case, the petitioner Company has been in continuous possession of the property by virtue of the legal process stated above and that cannot be affected by the legal heir certificate issued by the first and second respondents. In any event, in the present case as stated above, the impugned orders of respondents 1 and 2 are in blatant violation of the guidelines issued by the Special Commissioner and Commissioner and Secretary to Government, Revenue Department dated 28.11.1991, which are having legal force in respect of the procedure to be followed while issuing legal heir certificate.
26. In view of the above said facts and for not following the procedure as laid down in the guidelines, I do not think any useful purpose would be served in remanding the matter back to the first or second respondents for proper enquiry. Further, on the factual situation of the present case, applying the above guidelines, the first or second respondent should have necessarily directed the third respondent to approach the Civil court to prove that he is entitled to inherit the properties of George Alexander Chambers, which have been bequeathed by him to Mrs.Ida L.Chambers and it is only thereafter, he will have any right over the properties at all.
27. It is, in order to adjudicate the issue finally, not sticking on to the technicalities, I am of the considered view that the matter need not be again remitted back to the first and second respondents for the purpose of passing order afresh directing the third respondent to approach the Civil court as per the guidelines. This view has been affirmed by this Court in V.Veronickammal vs. The Director of School Education and others (1997 (2) L.W. 538), wherein AR.Lakshmanan,J. (as he then was) has held as follows:
" 10. In my opinion, the 1st respondent without applying his mind to the specific directions issued by this Court, has passed the order on 25.9.1996. It is not proper for persons like the 1st respondent to indulge in hair-splitting approach and find an escape for defeating the rights of the applicant. It is settled law that a Court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again. In his high time the Government and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating the legitimate claims of citizens and do what is fair and just to the citizens."
28. The reliance placed by the learned counsel for the third respondent Mr.Nambirajan, viz., judgement of the Supreme Court in Municipal Corporation of Delhi vs. Qimat Rai Gupta and others (2007 (7) SCC 309) has no relevance to the facts and circumstances of the case on hand. That was relating to the Delhi Municipal Corporation Act,1957, in respect of assessment, wherein the Supreme Court has held that, when an order of assessment has been communicated with the signature of the authority, the said order is ordinarily presumed to have been made on the date when it is signed. In the present case, the impugned orders of the first and second respondents are made in violation of the guidelines issued by the Government regarding the issuance of legal hair certificate.
29. The other judgement relied upon by him is, Reliance Industries Ltd., vs. Gujarat State Information Commission & Others (AIR 2007 Gujarat 203), which also relates to the powers of Information Commissioner under Right to Information Act and has no relevance to the facts of the case on hand.
30. Again, the judgement of the Madhya Pradesh High Court in Ashish Kumar and another vs. Leela Bai and others (AIR 2002 Madhya Pradesh 150) relied upon by him, relates to Section 372 of Succession Act, wherein the High Court has found that in the matter of grant of Succession Certificate, the petition and the revision were rejected and therefore, there was a concurrent finding of fact that the applicants were not husband and son of the deceased, and therefore, held that the proper remedy is to file a declaratory suit in civil Court, holding that the decision of Succession Court in the matter of issue of succession certificate is no way final or binding on the parties.
31. The other judgement relied upon by the learned counsel for the third respondent was rendered by the Orissa High Court in Binod Sahu and another vs. Smt.Chandrama Sahu and others (AIR 2003 Orissa 11), which also relates to Section 372 of Succession Act, and it has no application to the facts and circumstances of the present case.
32. As far as the contention of the learned senior counsel for the petitioner about the genuineness of various documents filed by the 3rd respondent before the 2nd respondent for obtaining legal heirship certificate, whether they are forged or not, it is not proper for the Court at this stage to express any opinion especially when it is the civil Court which has to ultimately decide the entire issue.
33. In view of the above said factual and legal position, the writ petitions stand allowed. Consequently, the impugned orders of the first and second respondents dated 26.09.2007 and 05.08.2001 respectively are quashed and set aside. However, it is open to the third respondent to approach the competent Civil Court for appropriate remedies. No costs.
In view of disposal of the main writ petitions, connected miscellaneous petitions are closed.
kh To
1.The Collector Kancheepuram District Collectorate Kancheepuram.
2.The Tahsildar Tambaram Taluk Kancheepuram District Tambaram 600 045.