Madras High Court
Dr.K.Shanmuga Raja vs The Tahsildar on 24 August, 2017
Author: V.Bharathidasan
Bench: V.Bharathidasan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.08.2017 Reserved on : 19.07.2017 Pronounced on: 24.08.2017 CORAM THE HON'BLE MR.JUSTICE V.BHARATHIDASAN Crl.R.C(MD).Nos.553 of 2008 and 559 of 2008 and M.P.(MD).Nos.1 & 1 of 2008 Dr.K.Shanmuga Raja ... Petitioner/3rd party in both Crl.Rcs -Vs- 1.The Tahsildar, Ambasumudram, Tirunelveli District. ... Respondent/Respondent in both Crl.Rcs 2.Samayiana S.S.Sindha ... Respondent/Petitioner in both Crl.Rcs Common Prayer : Criminal Revision Case filed under Section 397 r/w 401 of the Code of Criminal Procedure, against the order, passed by the learned Judicial Magistrate, Ambasamudram, Tirunelveli District in Cr.M.P.Nos.5542 and 5543 of 2007, vide his order dated 12.03.2008. In both Crl.R.Cs: !For Petitioner : Mr.R.Anand ^For Respondent-1 :Mr.C.Mayilvahana Rajendran Addl. Public Prosecutor For Respondent-2 :Mr.V.Kannan :COMMON ORDER
Challenging the order passed by the learned Judicial Magistrate, Ambasamudram under Section 13(3) of Tamil Nadu Registration of Births and Deaths Act, 1969, the present revision cases have been filed.
The brief facts leading to the filing of these revisions are as follows:
2.The second respondent herein claims to be one of the legal heirs of one Syed Sulayman Masthan, filed an application before the learned Judicial Magistrate, Ambasamudram under Section 13(3) of the Registration of Births and Deaths Act, (Hereinafter referred to as Act), seeking a direction to the first respondent herein to register the death of the above said Samiyana Sulayman Masthan as '10.12.1914'. The learned Judicial Magistrate also allowed the application and directed the first respondent herein to register his grandfather's death as 10.12.1914. Now, challenging the same, the petitioner herein, who said to have a civil dispute with the second respondent filed the present revision.
3.I have heard Mr.R.Anand, learned counsel appearing for the petitioner, Mr.C.Mayilvahana Rajendran, learned Additional Public Prosecutor, appearing for the first respondent and Mr.V.Kannan, the learned counsel appearing for the second respondent and perused the records carefully.
4.Mr.R.Anand, learned counsel appearing for the petitioner would contest that when civil disputes are pending between the parties, in order to get an advantage in the civil suit, the petitioner herein filed the present application, seeking a direction to the first respondent, for registration of death, in the year 2007, for the death alleged to have been taken place in the year 1914, after 93 years. The learned Magistrate, also mechanically, without any iota of evidence, allowed the application. The learned counsel also submitted that in a registered sale deed executed by some of the legal heirs of the above deceased person, which was registered in the year 1910, has mentioned that the above deceased person died before 11.12.1910. The learned Magistrate without an evidence to substantiate that the above said person has died on 10.12.1914, has mechanically allowed the application, which now affects the right of the petitioner in the civil dispute, pending between the parties.
5.Per contra, the learned counsel appearing for the second respondent would contend that under Section 13(3) of the Act, there is no obligation on the part of the Judicial Magistrate to verify the actual birth or death of a person and the learned Magistrate is only expected to see the fact that birth or death has really taken place, he cannot refuse to issue order. In this case, the death of his grandfather has been established by the petitioner.
Considering the same, the learned Magistrate passed an order, issuing a direction to the first respondent. The learned counsel further contended that the order passed by the learned Judicial Magistrate only binds the Registrar and not others and the order did not carry any higher probative value and for that purpose, it must be proved in appropriate proceedings. So, the apprehension of the petitioner is not correct and if at all the petitioner has raised any dispute regarding the death of the above said person, he can object the same before the civil court. The learned counsel for the respondent also relied upon a judgment of this Court in Harikrishnan Vs. James Trinite and Others, reported in (2002) 1 L.W.105: (2001) 3 MLJ 291, wherein, this Court has held as follows:
?13...... It is not a provision whereby an aggrieved party could get an adjudication on his disputed date of Birth. The order of the Magistrate binds only the Registrar and not others. The entry made by the Registrar, pursuant to an order of the Magistrate, cannot carry higher probative value and its proof must necessarily depend upon the facts and circumstances of each case.
I fully endorse the view of the learned Judge.
14. Therefore, when the entry does not even amount to adjudication of date of Birth and the order of the Magistrate binds only the Registrar and not others, here is no cause of action to try a suit of civil nature as per Section 9, C.P.C. In this case especially, from the plaint averments, it is seen that the respondent is not even disputing the date of Birth. What he is aggrieved by is the record of the place of Birth in the register. If he wants to have an adjudication regarding the place of Birth of the appellant herein, his remedy is not to attack the order of the Magistrate u/s 13(3) of the Act or the entry made by the Registrar pursuant thereto. The scope and ambit of the Act itself is very limited and the actions done by the persons empowered under the Act is limited only to the recording of the entry. Any dispute regarding the same cannot be questioned in the suit of this nature.
The irder if the appellate Judge is therefore set aside. The dismissal of the suit by the trial Court is confirmed and the C.M.A is allowed. No costs. C.M.P. No.4144 of 2001 is closed.?
6.I have considered the rival submissions.
7.In the instant case, according to the second respondent, his grandfather Samaiyana Sulaiman Masthan died on 10.12.1914 and admittedly, his death was not registered and subsequently, an application has been filed in the year 2007, nearly after 93 years.
Section 13(2) and (3) of the Tamil Nadu Births and Deaths Act, reads as follows:
?13.Delayed Registration of births and deaths:
(2) Any birth or death of which delayed information is given to the Registar after thirty days but within one year of its occurrence shall be registered only with the written permission of the Permission of the Prescribed Authority and on payment of the prescribed fee and the production of an Affidavit made before a Notary Public or any other Officer authorised in this behalf by the State Government.
(3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an Order made by a Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.?
8.A reading of the above provision makes it clear that the learned Judicial Magistrate, before issuing such direction, has to verify the correctness of the birth or death. Even though no particular procedure is prescribed under the Act regarding the manner in which the learned Judicial Magistrate has to verify the correctness of the birth or death, the learned Judicial Magistrate cannot mechanically issue a direction, accepting the statement of a person, who filed the application. In the instant case, from the perusal of the records, it could be seen that except the evidence of the second respondent and an application filed by the second respondent to the first respondent seeking an information regarding the registration of death of his grandfather viz., Samayiana Sulaiman Masthan, absolutely, there is no material on record to show that the above said person died in the year 1914. But, the learned Judicial Magistrate has mechanically issued the direction.
9.Recently, a Division Bench of this Court, taking note of the fact that mal-practices have been involved in these kind of orders, directed to amend Rule 9(3) of the Tamil Nadu Birth and Death Rules, 2000. Subsequently, Rule 9(3) of the Tamil Nadu Births and Deaths Rules, 2000 has been amended and the amended rule empowers the Judicial Magistrate, not below the rank of Metropolitan Magistrate to order for registration of birth or death.
10.Coming to the instant case, there is a serious dispute regarding the death of the above said Sulaiman. The learned counsel for the petitioner produced a registered document dated 11.02.1910, wherein, the above said Sulaiman said to have died before the execution of the above said sale deed, by his legal heirs. Even though as rightly pointed out by the learned counsel for the respondent that the entry made in the register of birth and death is not a conclusive proof and also does not have a statutory presumption under Section 114 of the Indian Evidence Act, in the instant case, the death was sought to be registered after 93 years of the death of the above Samayiana Sulaiman Masthan and the learned Judicial Magistrate also without verifying the correctness of the death of the person has mechanically issued the direction.
11.Considering the facts and circumstances of this case, the order passed by the learned Judicial Magistrate is liable to be set aside. Accordingly, the order, passed by the learned Judicial Magistrate, Ambasamudram, Tirunelveli District in Cr.M.P.No.5542 of 2007, dated 12.03.2008 is set aside.
12.Accordingly, this Criminal Revision Case is allowed. Consequently, connected miscellaneous petition is closed.
To
1. The Judicial Magistrate, Ambasamudram, Tirunelveli District.
2.The Tahsildar, Ambasumudram, Tirunelveli District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.