Neither the Act nor the Rules provide for the procedure for conducting the proceedings when an application is made under this provision. It is true that an entry in the register of births or death is not conclusive evidence of the disputed date of birth or death so also an entry pursuant to the directions of the Magistrate under Section 13(3). The order of the Magistrate binds only the Registrar and not others. (See H. Subba Rao v. The Life Insurance Corporation of India, Bangalore & Another -MANU/KA/0037/1976 : AIR 1976 KAR 231).
12. 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.
13. In the case of issuance of probate or letters of administration, a procedure has been provided under the Rules governing Probate and Succession matters, 1966. Similar Rules have to be framed under the Act. Till such Rules are framed, it is necessary to give certain directions which have to be followed by the Magistrates before whom applications are filed for registration of date of death.
14. In a case relating to date of birth, the High Court of Gujarat in Karimabibi W/o Gulam Mohammad Mustufa Karodiawad and Others v. Ankleshwar Municipality and Others-MANU/GJ/0142/1997 : AIR 1998 Guj. 42 has issued the following directions.
Admittedly, the application filed by the respondent Nos. 2 and 3 was under sub-section (3) of Section 13 of the said Act. If the above provision of sub-section (3) of Section 13 are considered, then it would be quite clear that it is the duty of the learned Judicial Magistrate to verify the correctness of the date of birth before allowing the application filed before him. When the law expects that he has to verify correctness of the birth, it is expected from him that he must hear the persons who would be interested in disputing or supporting the said application. No doubt the said Act of 1969 does not lay down any procedure as to how and in what manner the application is to be presented by the petitioner to the learned Judicial Magistrate. Not only that, the said Act of 1969 is not making any provision for the proceeding for filing such an application, but no procedure is also laid down by any rules framed under the said Act or by any other specific provisions of any Act. Therefore, in these circumstances, when any application is presented under Section 13 of the said Act after a period of 1 year from the date of birth or date of death, it would be incumbent on the applicant to state the reasons/grounds in his application as to why the earlier entry in the death or birth register could not be made and why he could not give the information regarding the same to the competent authority. He must justify his late action in filing such an application by making necessary averments in his petition. It is also further necessary for him to state the purpose of which he wants the entry in the birth register or the death register. He must also state in the said application as who are likely to be affected by the said entry in the birth register or death register....
It has been further held as under:
10. When all the above stated details are given in the application, it is also incumbent on the Magistrate to issue notice to those persons who are likely to be affected by his order. He should also insist on issuing a proclamation as is required while issuing a succession certificate. Without following the above stated procedure, the Magistrate should not proceed to dispose of such an application because the granting of such relief is going to create a right in favour of the applicant and obligation against certain persons. When the obligations are created against such persons, they must have a reasonable opportunity to challenge the said act of the petitioner.
15. A Division Bench of Orissa High Court in Sk. Rahimuddin v. Ojifa Bibi and Others - MANU/OR/0016/1989 : AIR 1989 Ori. 56 has held as under:
Section 13(3) casts an onerous duty on the Magistrate to verify the correctness of the birth or death and thereafter, pass an order. There cannot be any manner of doubt that an entry with regard to the date of birth of a person confers a valuable right and when such an entry was not contemporaneously made for some reason or the other and can be made only after a Magistrate passes an order after verifying the correctness of the same, the Magistrate must make an inquiry in that respect. Without any inquiry worth the name, and passing an order mechanically on the basis of affidavit filed, would tantamount to passing an order on total non-application of mind and in the eye of law, it would not be a verification as contemplated under Section 13(3). Such an order cannot be sustained in law.
16. 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.
17. If the application contains the above particulars, the Magistrate should not only issue notice to the respondents but also to those persons who are likely to be affected by the order. He should also direct the issue of notice in two local daily newspapers, one of them should be in vernacular language, having wide circulation. The Magistrate may also issue such other directions as he may deem fit and proper depending upon the facts of the case. He should hold an enquiry and pass appropriate orders thereon in accordance with law. If there is a serious dispute with regard to the date of death, the Magistrate has to dismiss the petition with liberty to the parties to approach the Civil Court for appropriate reliefs.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Writ Petition Nos. 50331 to 50334/2012 (GM-RES)
Decided On: 26.06.2013
Muniyamma and Ors. Vs Devegowda and Ors.
Hon'ble Judges/Coram:
S. Abdul Nazeer, J.
Citation: MANU/KA/2256/2013
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