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. WP.No. 3248 of 2007:- Writ of Certiorarified Mandamus, calling for the records of the Ist respondent order in RC.No. YI/25279/07 dated 26.9.2007 ad quash the same and consequently direct the Ist respondent to cancel the legal heirs Certificate PAMU.No. 11805/2001/A6 dated 5.8.2001 issued by the 2nd respondent in favour of third respondent; and https://hcservices.ecourts.gov.in/hcservices/ WP.No. 33249 of 2007: Calling for the records pertaining to the legal heirs Certificate PA Mu.No. 11805/2001/A-6 dated 5.8.2001 issued by the 2nd respondent to the third respondent and quash the same, respectively. 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 26.09.2007 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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