IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.23357/2014 (GM-RES) BETWEEN:
M SURESH KOTHARI S/O MR MANGILAL KOTHARI AGED ABOUT 52 YEARS RESIDING AT NO.126, WEST OF CHORD ROAD 2ND STAGE, BASAVESHWARANAGAR BANGALORE 560086 (BY SRI. B S SATYANAND, ADV.) AND ... PETITIONER 1. THE TASHILDHAR REGISTRAR OF BIRTHS AND DEATHS NELAMANGALA TALUK-562123.
2. MR MUNIYAPPA S/O DODDAHUCCHAIAH AGED ABOUT 58 YEARS R/AT HONNASANDRA GRAMA KASABA HOBLI NELAMANGALA TALUK -562123.
ALSO AT:
NO.368, 3RD MAIN ROAD WEST OF CHORD ROAD MANJUNATHANAGARA BANGALORE 560086 3. SMT HUCHAMMA W/O LATE M H JAYAPRAKASH NARAYANA AGED ABOUT 66 YEARS R/AT NO.294, 5TH MAIN K H B COLONY, BASAVESHWARANAGARA BANGALORE 560079 4. MRS SHOBHARANI D/O LATE M H JAYAPRAKASH NARAYANA W/O MR MARASHETTY AGED ABOUT 32 YEARS R/AT NO.16, SAMRUDDHI 1st Floor, NANJAPPA REDDY LAYOUT 2ND CROSS TEMPLE ROAD KORAMANGALA 8TH BLOCK BANGALORE 560095 5. MRS S NIRMALA W/O LATE M H NARAYANAPPA AGED ABOUT 67 YEARS R/AT NO.92 NHCS LAYOUT 3RD STAGE 4TH BLCOK BASAVESHWARANAGARA BANGALORE 560 079 ... RESPONDENTS (BY SMT. NILOUFER AKVAR, AGA. FOR R1 SRI. D P MAHESH, ADV. FOR R2 SRI. KARTHIK C., ADV. FOR SRI. NISHANTH ADV. FOR R3 SMT. GOWHAR UNNISSA, ADV. FOR SRI. VISHWANATH SHETTY, ADV. FOR R4 SRI. H MOHANA KUMAR, ADV. FOR R5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH OR SET ASIDE THE ORDERS DTD.19.1.2011, C.MISC.NO.6 OF 2011 PASSED BY THE COURT OF THE CIVIL JUDGE AND JMFC, NELAMANGALA VIDE ANNEX-A & ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition is directed against the order dated 19.1.2011 passed by the Court of the Civil Judge & JMFC, Nelamangala in C.Misc.6/2011 vide Annexure-A whereby the learned Magistrate has directed the respondent therein to register the date of birth of the petitioner’s daughter by name M.Shobha Rani D/o Ammayamma W/o Muniyappa was born on 18.6.1981 at petitioner house, Honnasandra Grama, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District, in the register maintained by them after receiving prescribed penalty from the petitioner.
2. The case of the petitioner herein is that:
The petitioner has purchased the property bearing No.126, West of Chord Road, 2nd Stage, Basaveshwaranagar, Bangalore-560086 from respondent Nos.3 and 4 vide registered sale deed dated 15.4.2010. Respondent No.2 is one of the attesting witnesses to the said registered sale deed and claims to be the brother of respondent No.3. The said property was originally allotted to Late M.H.Jayaprakash Narayana (husband of respondent No.3) by the BDA on 9.7.1973/28.3.1977. Late M.H.Jayaprakash Narayana put up a residential building on the said property and lived along with respondent Nos.3 and 4 till his death on 6.4.1995.
It is the further case of the petitioner that on 22.9.1997, respondent Nos.3 and 4 obtained a P & Sc.
Certificate by initiating P & Sc. No.10045/1997 in the Court of XIII Addl. City Civil Judge, Mayo Hall, Bangalore. Thereafter, BDA executed a sale deed dated 4.6.2002 in favour of respondent Nos.3 and 4 jointly as the legal representatives of late M.H.Jayaprakash Narayana in respect of the above property. Later, respondent Nos.3 and 4 intended to sell the property and since the petitioner was interested, he purchased the said property from respondent Nos.3 and 4 vide registered sale deed dated 15.4.2010.
On 10.1.2011, respondent No.2 filed C.Misc.No.6/2011 before the Court of Civil Judge and JMFC, Nelamangala seeking to direct the respondent therein to enter the date of birth of petitioner’s daughter by name M.Shobha Rani D/o Ammayamma W/o Muniyappa was born on 18.6.1981 and to issue birth certificate. The learned Magistrate vide order dated 19.1.2011 allowed the said petition and directed the respondent therein to register the date of birth of the petitioner’s daughter by name M.Shobha Rani D/o Ammayamma W/o Muniyappa was born on 18.6.1981. Respondent No.3 in an interse dispute between respondent Nos.4 and 5 in respect of other properties of Late M.H.Jayaprakash Narayana, disowns that respondent No.4 is her daughter and sets up that the respondent No.4 is the daughter of respondent No.2. This proceeding was initiated by respondent No.3 before the Special Tahsildar, Bangalore North Taluk, in RRT (Dis) No.49/2010-11 and an order to that effect was passed by the Tahsildar on 27.6.2011.
Respondent No.5 and her daughters started claiming that they are the absolute owners of the property and respondent Nos.3 and 4 are not legal heirs of late M.H.Jayaprakash Narayana. Respondent No.5 has filed the suit in O.S.8177/2011 before the City Civil Judge, Bangalore against respondent Nos.3 and 4, petitioner herein as well as the BDA. Respondent No.5 has produced documents stating that respondent No.4-M.Shobha Rani is not the daughter of respondent No.3 and late M.H.Jayaprakash Narayana and she is the daughter of respondent No.2. To establish the claim, they have produced the birth certificate of respondent No.4- M.Shobha Rani vide Annexure-H. After coming to the knowledge about the birth certificate issued on the basis of the impugned order dated 19.1.2011 passed by the learned Magistrate in C.Misc.6/2011, immediately the petitioner has filed this writ petition.
3. The learned counsel for the petitioner submits that the petitioner has purchased this property by registered sale deed dated 15.4.2010 from respondent Nos.3 and 4, who have inherited the same from Late M.H.Jayaprakash Narayana. Though they produced the birth certificate of respondent No.4 issued on the basis of the impugned order, the impugned order vide Annexure-A is contrary to Section 13(3) of the Registration of Births and Deaths Act, 1969. Therefore, he sought for allowing the petition.
4. Per contra, the learned counsel for respondent No.2 submits that respondent No.4 has not challenged the order passed by the learned Magistrate in C.Misc.6/2011. The learned counsel for respondent No.4 submits that respondent No.4 has not been made as party and without making respondent No.4 as party, the impugned order has been passed.
5. Heard the learned counsel for the parties.
Perused the records.
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 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. Further, 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.”
8. In the case on hand, the learned Magistrate without any materials on record and without verifying the date of birth of respondent No.4 herein, has allowed the petition filed by the respondent No.2. The reasoning given by the learned magistrate is as under:
“6. The petitioner in his evidence reiterated the facts stated in the petition. In addition to his oral evidence he has produced non-availability certificate issued by the respondent which is marked as Ex.P1. On perusal of Ex.P1 it reveals Petitioner’s Daughter by name M.Shobha rani D/o Ammayyamma W/o Muniyappa was born on 18.06.1981. The petitioner is residing within the jurisdiction of this Court. The birth of M.Shobha Rani took place within the jurisdiction of this Court. On perusal of evidence and documents, I am satisfied as to the fact that there is no entry regarding the date of birth of petitioner’s Daughter in the register maintained by the respondent. Hence I answer the above point in the affirmative and pass the following order.”
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. Hence, the following order is passed:
a) Writ petition is disposed of.
b) The order dated 19.1.2011 passed by the Court of the Civil Judge & JMFC, Nelamangala in C.Misc.6/2011 vide Annexure-A, is quashed.
c) The matter is remanded back to Civil Judge & JMFC, Nelamangala with a direction to implead the petitioner as well as respondent No.4 herein as parties and pass an order after giving opportunity to all the parties in terms of the required provisions of Registration of Births and Deaths Act.
Sd/- JUDGE DM