Tuesday, 14 July 2020

Whether Magistrate can issue direction for registration of death under The Registration of Births and Deaths Act?

The object of the Registration of Births and Deaths Act, 1969, is to give legal status to the registration of births and deaths by judicial machinery. A legal duty is cast upon the persons specified in Section 8 to give information to the Registrar of such Births and Deaths. Section 13 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. Section 13(3) of the Act reads as under:

13. Delayed registration of births and deaths:

(1) xxxx

(2) xxxx

(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.

(4) xxxx

9. Thus, Section 13(3) authorises the Magistrate to pass an order on an application after verification of the correctness of the birth and death.

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


1. In these cases, the petitioners have challenged the validity of the order at Annexure 'A' dated 29.3.2012 whereby the Chief Judicial Magistrate, Bangalore Rural District, Bangalore, has directed entry of the date of death of Sri Devaiah @ Devegowda as 24.2.1970 at Rajarajeshwarinagar and the death certificate of Devaiah @ Devegowda at Annexure 'B' dated 28.11.2012 issued by the third respondent. The first respondent filed an application under Section 13(3) of the Registration of Births and Deaths Act, 1969 ('Act' for short) in C. Misc. No. 32/2012 before the Magistrate seeking a direction to the Tahsildar, Bangalore South Taluk, to enter the date of death of his father late Devaiah @ Devegowda, son of Odegowda as 24.2.1970 in the records and to issue death certificate. It is contended that he has not intimated the death of his father to the competent authorities as he was under the impression that the hospital authorities would have intimated the date of death. When he approached the third respondent for issue of the death certificate, he was informed that the death of his father was not registered in the records.

2. The petition was presented by the first respondent on 21.3.2012 before the Magistrate. The Tahsildar, Bangalore South Taluk, was arrayed as the sole respondent. On the same day, hand summons was issued to the respondent. The case was posted on 26.3.2012 and on that day, the respondent was placed ex-parte. The first respondent filed an affidavit of examination in chief. The petition was allowed on 29.3.2012.

3. It appears that thereafter, Devegowda and his two brothers and one Manjunath son of late Ningamma filed a suit in O.S. No. 5346/2012 against the petitioners herein and certain other persons for cancellation of the sale deeds dated 15.7.1970, 21.6.1972 and 31.1.1973 respectively. The said sale deeds were executed by Devaiah in favour of the petitioners and certain other persons. Several other reliefs have been sought for in the suit. One of the contentions in the plaint is that the sale deeds are fabricated documents.

4. The petitioners have filed these writ petitions contending that Devaiah had died in the year 1979. With a view to create evidence of the death of Devaiah earlier to the date of execution of the sale deeds, the first respondent has obtained the impugned order by playing fraud and misrepresentation.

5. I have heard Sri C.M. Nagabushana, learned Counsel appearing for the petitioners and Sri Sajjan Poovaiah, learned Additional Advocate General for respondent Nos. 2 and 4 and Sri B.V. Muralidhar, learned Counsel appearing for respondent No. 3. The first respondent though served has not been represented in these cases.

6. Learned Counsel for the petitioners submits that Devaiah, father of the first respondent had died in the year 1979. He had executed several sale deeds in respect of certain immoveable properties during the years 1970 to 1973. The first respondent filed the petition under Section 13(3) before the Magistrate for a direction to enter the date of death of his father Devaiah @ Devegowda as 24.2.1970 by suppressing material facts and has obtained an order as per Annexure 'A' and the death certificate at Annexure 'B'. This was done with a view to seek a declaration that the sale deeds are fabricated documents. The Magistrate has not held an enquiry. The other legal representatives of Devaiah have not been made parties to the petition. No notice has been issued to the interested persons.

7. Sri Sajjan Poovaiah, learned Addl. Advocate General submits that since no Rules have been framed under the Act regulating the procedure for entering the date of death, which has serious consequences, certain directions have to be issued so that the other legal representatives and the persons interested may also participate in the proceedings, if they so desire.

8. The object of the Registration of Births and Deaths Act, 1969, is to give legal status to the registration of births and deaths by judicial machinery. A legal duty is cast upon the persons specified in Section 8 to give information to the Registrar of such Births and Deaths. Section 13 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. Section 13(3) of the Act reads as under:

13. Delayed registration of births and deaths:

(1) xxxx

(2) xxxx

(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.

(4) xxxx

9. Thus, Section 13(3) authorises the Magistrate to pass an order on an application after verification of the correctness of the birth and death.

10. Rule 9(3) of the Karnataka Registration of Births and Deaths Rules, 1999 states that any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order of a Magistrate of the First Class or a Presidence Magistrate under Section 13(3) and on payment of a late fee of rupees ten.

11. 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.

18. As has been noticed above, the first respondent filed the petition against the Tahsildar, who was placed ex-parte. The matter was concluded within a period of eight (8) days. The other children of Devaiah were not made parties to the proceedings. No notice was issued to the persons interested. In the circumstances, the order impugned needs to be quashed and the Magistrate has to reconsider the matter by following the aforesaid procedure. In the result, writ petitions succeed and are accordingly allowed in part. The order dated 29.3.2012 in C. Misc. No. 32/2012 on the file of the Chief Judicial Magistrate, Bangalore Rural District, Bangalore, is hereby quashed. Consequently, the death certificate at Annexure 'B' dated 28.11.2012 issued by the Registrar of Births and Deaths is also quashed. The matter is remitted back to the Chief Judicial Magistrate for fresh disposal in accordance with law and in the light of the above observations. The petitioners and respondent No. 3 herein shall be impleaded as additional respondents before the Magistrate. No costs.


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