Legal heirship certificate - Father of the petitioner missing and not heard of for over 40 years - Petitioner entitled to a certificate invoking the presumption under Section 108 - burden of proof does not lie on the Petitioner - Declaration suit not necessary.

Citation 

(2024) 4 MLJ 461

2024(5) CTC 99

LNINDORD 2024 BMM 826

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Hon'ble Mr. Justice G.R. Swaminathan

W.P.(MD)No. 5252 of 2024 and W.M.P.(MD)No. 5038 of 2024

14th June, 2024

R. Janaki.                         ...Petitioner

Versus

Tahsildar, Palayamkottai Taluk, Tirunelveli District and Others.       ... Respondents

(A) Writ - Legal heirship certificate - Father of the petitioner missing and not heard of for over 40 years - Petitioner entitled to a certificate invoking the presumption under Section 108- Indian Evidence Act, Section 108- The father of the Petitioner went missing 40 years ago and was not heard of An - application was made for issuance of legal heirship certificate which was rejected directing the Petitioner to approach the civil court - As Section 108 applies, the burden of proof does not lie on the Petitioner, and she is entitled to avail the benefit of presumption [Paras 3-7] - Order of the Tahsildar set aside, with directions - Petition allowed.

(B) Civil Laws - Declaratory Relief - Relief as regards legal character can be obtained only if there is someone to deny the same - Specific Relief Act, 1963, Section 34 On facts, the petitioner cannot go to the civil court to obtain a - declaration that her father is no more - Even if the Petitioner arrays her relatives and obtains a decree, it is not binding on others including the local body or the governmental authorities [Para 7].