IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.9711/2013 (GM-RES) BETWEEN:
G LINGAPPA S/O LATE KENGA CHITTAPPA AGED ABOUT 55 YEARS R/O YERRAKONADAPURAM VILLAGE BRAMHASAMUDRAM MANDAL KALYANADURGA TALUK ANANTHAPURA DISTRICT-515767 ... PETITIONER (BY SRI.H K. RAVI, ADV. FOR SRI. KANTHA RAJA, ADV.) AND 1. THE COMMISSIONER BRUHATH BANGALORE MAHANAGARA PALIKE (BBMP) BANGALORE-560001.
2. M LAKSHAMANACHAR S/O RAGHAVENDRACHAR AGED ABOUT 72 YEARS DOOR NO. 5-2-216, FORT STREET RAYADURGA-515865 ANANTHAPUR DISTRICT STATE OF ANDRA PRADESH ... RESPONDENTS (BY SRI. S.N PRASHANTH CHANDRA, ADV. FOR R1 SMT. RAJAMANI, ADV. FOR R2.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER IN C.MIS. NO.2323/2010 DATED 16.9.2010 PASSED BY THE LEARNED 8TH ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE VIDE ANNEXURE-A AND THE DEATH CERTIFICATE DATED 11.10.2010 ISSUED BY THE RESPONDENT NO.1 VIDE ANNEXURE-B BY ISSUING A WRIT OF CERTIORARI AS ILLEGAL.
THIS WRIT PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition is directed against the order dated 16.9.2010 passed by the learned VIII Addl. Chief Metropolitan Magistrate, Bangalore in C.Mis.2323/2010 vide Annexure-A whereby the learned Magistrate has directed the respondent therein to register the date of death of the petitioner’s paternal aunt Smt.Y.Rajamma w/o Late Anandachar who died on 7.1.1968 at Bangalore after collecting the late fee and penalty.
2. The case of the petitioner herein is that the petitioner and his elder brothers had purchased the property from Smt.Y.Rajamma w/o Late Anandachar and her son Hanumantharao vide registered sale deed dated 14.10.1970. From the date of purchase, they were in actual possession and cultivated the same without any interruption by anybody. Pursuant to the sale deed, in the revenue records the name of the petitioner has been entered. Respondent No.2 herein, the nephew of Smt.Y.Rajamma w/o Anandachar has sold the very same property in favour of other persons vide registered sale deed dated 18.2.2012. Subsequently, respondent No.2 has filed petition before the learned Magistrate under Section 13(3) of the Registration of Births and Deaths Act, 1969 (for short “the Act”). The learned Magistrate by order dated 16.9.2010, has allowed the petition and directed the respondent therein to register the date of death of paternal aunt of respondent No.2 herein, Smt.Y.Rajamma w/o Late Anandachar who died on 7.1.1968 at Bangalore after collecting the late fee and penalty. Being aggrieved by the same, the petitioner has filed this petition.
3. The learned counsel for the petitioner submits that Smt.Y.Rajamma w/o Late Anandachar was the original owner of the property in dispute. She has sold the property by registered sale deed dated 14.10.1970 in favour of the petitioner and his brothers. Respondent No.2 without any right, title over the property has sold the very same property in favour of other persons vide registered sale deed dated 18.2.2012. Subsequently, respondent No.2 filed an application under Section 13 of the Act seeking death certificate of Smt.Y.Rajamma. The learned Magistrate has allowed the application. The impugned order passed by the learned Magistrate is contrary to the provisions of Section 13 of the Act and the learned Magistrate without application of mind, has allowed the petition filed by respondent No.2 herein.
4. Heard the learned counsel for the parties.
Perused the records.
5. Smt. Y.Rajamma w/o Late Anandachar was the owner of the property in dispute. She sold the property in favour of the petitioner and his brothers vide registered sale deed dated 14.10.1970. Respondent No.2 without any right, title over the property has sold the very same property in favour of other persons vide registered sale deed dated 18.2.2012. Subsequently, respondent No.2 herein had filed a petition in C.Mis.2323/2010 under Section 13(3) of the Registration of Births and Deaths Act, 1969 seeking to direct the respondent therein to register the date of death of his paternal aunt and to issue death certificate. The learned Magistrate by order dated 16.9.2010, has allowed the petition and directed the respondent therein to register the date of death of paternal aunt of respondent No.2 herein, Smt.Y.Rajamma w/o Late Anandachar who died on 7.1.1968 at Bangalore after collecting the late fee and penalty. Being aggrieved by the same, the petitioner has filed this petition.
6. Section 13(3) of Registration of Births and Deaths Act, 1969 reads as under:
“13. Delayed registration of births and deaths:
(1) XXX (2) XXX (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.”
The said provision is very clear in respect of delayed registration of date of births or deaths. The learned Magistrate before passing the order has to verify the correctness of the birth or death on payment of prescribed fee and has to pass an order.
7. In the case on hand, the learned Magistrate without any materials on record and without verifying the date of death of the paternal aunt of respondent No.2 herein, only on the ground that the date of death was not mentioned in the register, has allowed the petition filed by the respondent No.2 and has passed an order.
8. This Court in the case of Smt.
Muniyamma and others vs. Devegowda and others (ILR 2013 KAR 4703) has held that Section 13 of the Registration of Births and Deaths Act, 1969 lays down the procedure for delayed registration of births and deaths. In case of non-registration within one year of the occurrence of birth or death, the registration could take place under Section 13(3) only on an order made by the Magistrate after verifying the correctness of the birth or death. Paragraphs 13 and 17 of the said decision are relevant and same is extracted hereunder:
“13. An order passed under this provision consequent to the suppression of material facts may visit with serious civil consequences. Let us take the present case for instance. According to the petitioners, Devaiah had died in the year 1979 and that before his death, he had executed several sale deeds. The petitioners are claiming title to the properties under those sale deeds. The death certificate has been issued pursuant to the order of the Magistrate dated 29.3.2012. It is no doubt true that a contention can be raised by the petitioners in the suit that the death certificate is a fabricated one. But if an appropriate procedure is followed by the Magistrate, the mischief it may cause can be prevented to a large extent. The language contained in Section 13(3) mandates the Magistrate to pass an order after verification of date of death. Verification involves determination or testing the truth or the accuracy of the statements made in the petition. Therefore, the Magistrate cannot blindly direct entry of date of death as sought for in the petition.
XXXXX 17. Therefore, the applicant has to state atleast the following particulars in the application filed under Section 13(3) of the Act for entering the date of death:
(i) The reasons/grounds as to why entry in the death register could not be made earlier and why he could not give information regarding the same to the competent authority.
(ii) The purpose for which he wants entry in the death register.
(iii) Wife and children of the deceased have to be made parties in the application as also the Jurisdictional Registrar of Births and Deaths.
(iv) The particulars of the person/persons, who are likely to be affected by the entry in the death register.
(v) The Magistrate can also direct the applicant to furnish such other particulars as he may deem fit and proper in the circumstances of the case.”
9. The impugned order passed by the learned Magistrate is contrary to the provisions of Section 13 of the Registration of Births and Deaths Act, 1969. The same is unsustainable. It requires reconsideration.
10. Accordingly, the following order is passed:
a) Writ petition is allowed.
b) The order dated 16.9.2010 passed by the learned VIII Addl. Chief Metropolitan Magistrate, Bangalore in C.Mis.2323/2010 vide Annexure-A, is quashed.
c) The matter is remanded back to VIII Addl.
Chief Metropolitan Magistrate, Bangalore with a direction to implead the petitioner
Registration of Births and Deaths Act.
d) Death certified issued by the Corporation vide Annexure-B, is also hereby quashed.
Sd/- JUDGE DM