IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 WP(C).No. 33534 of 2009(J) -------------------------------------- PETITIONER(S): ----------------------- SMITHA BINU, AGED 30 YEARS, W/O.LATE BINU JAMES, 4/434, RON VILLA, SASTHAMPARAMBU, PUNNAPRA PANCHAYATH, ALAPPUZHA DISTRICT. BY ADV. SRI.ASHIK K.MOHAMMED ALI RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TAHSILDAR, TALUK OFFICE, AMBALAPUZHA, ALAPPUZHA DISTRICT. 3. THE VILLAGE OFFICER, MULLACKAL VILLAGE, ALAPPUZHA DISTRICT. 4. THE SUPERINTENDENT, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM. 5. S.J. JAMES, IX/111, SASTHAMPARAMBIL, PUNNAPRA NORTH, ALAPPUZHA. 6. KUNJAMMA JAMES, W/O.S.J. JAMES, IX/111, SASTHAMPARAMBIL, PUNNAPRA NORTH, ALAPPUZHA. R1 TO R4 BY GOVT. PLEADER MR.P. NARAYANAN. R5 BY ADV. SRI.T.R.RAJAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 33534/2009-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE MOUNT CARMEL CATHEDRAL, EVIDENCING THE MARRIAGE OF THE PETITIONER WITH BINU JAMES. EXT.P2: COPY OF THE LETTER NO.889/2009 DATED 23/10/2009 OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P3: COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE LETTER NO.A4 22203/2009 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs ANTONY DOMINIC, J. ================ W.P.(C) NO. 33534 OF 2009 ===================== Dated this the 25th day of November, 2010 J U D G M E N T Petitioner, the wife of Late Binu Thomas, has filed this writ petition challenging Exts.P3 and P4. According to the petitioner, on the death of her husband, she made an application for legal heirship certificate and as part thereof, Exts.P3 and P4 were issued. 2. It would appear that Exts.P3 and P4 were issued based on Ext.P2 report submitted by the Village Officer illegally. Ext.P2 report states that apart from the petitioner and her son, respondents 5 and 6 are also the legal heirs of the deceased. Based on Ext.P2 report, Ext.P3 certificate of dependency has been issued including respondents 5 and 6 also. 3. Counsel for the petitioner impugns Ext.P3 on the ground that in terms of Section 33 of the Indian Succession Act, when there are lineal descendants, parents are not legal heirs. However, Ext.P3 is only a certificate of dependency, and therefore, Section 33 will not have any application in so far as a certificate of dependency is concerned. WPC No. 33534/09 :2 : 4. In so far as Ext.P4 is concerned, Ext.P4 is a communication issued by the Tahsildar to the Superintendent of the Government Press for publication in the gazette inviting objections against the inclusion of the petitioner, her son and respondents 5 and 6 as the legal heirs of the deceased. Therefore, once Ext.P4 is published in the gazette, it will be open to the petitioner to file her objections against Ext.P4 and it is for the petitioner to take recourse to that remedy. 5. However, I find merit in the submission of the petitioner that when there are lineal descendants of the deceased to succeed to the estate of the deceased, respondents 5 and 6 do not come within the purview of Section 33, and in that view of the matter, there is substance in the contention raised that respondents 5 and 6 are liable to be excluded from the legal heirship of the deceased. Although this contention is well founded, still having regard to the fact that Ext.P4 gives an opportunity to the petitioner to file her objections when it is published in the gazette, I leave it open to the petitioner to pursue that course, producing a copy of this judgment before the WPC No. 33534/09 :3 : Tahsildar, in which event, the Tahsildar will take appropriate action in the matter duly adverting to this judgment also. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp