Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 22ND DAY OF NOVEMBER 2023/1ST AGRAHAYANA,1945 WP(C) NO. 36868 OF 2023 PETITIONER: JOHN @ PHONY, AGED 54 YEARS S/O. KUNJUVAREETH @ GEORGE, ALENGADAN HOUSE, IRINJALAKUDA, THRISSUR DISTRICT, PIN - 680 121. BY ADVS. V.M.KRISHNAKUMAR P.R.REENA SRI. RENJITH THAMPAN - SR. RESPONDENTS: 1 TAHSILDAR, MUKUNDAPURAM TALUK, TALUK OFFICE, CHEMMANDA ROAD, IRINJALAKUDA, THRISSUR DISTRICT, PIN - 680 125. 2 VILLAGE OFFICER, VELOOKKARA VILLAGE, VELOOKKARA P.O, THRISSUR DISTRICT, PIN - 680 661. SRI. BIMAL K. NATH - SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The petitioner has filed this writ petition challenging Ext.P3 communication whereby the 1 st respondent refused to effect mutation of the property pursuant to Ext.P2 registered joint Will on the ground that the conditions in the Will have not been complied with in full.
2. The petitioner's father and mother executed
Ext.P2 joint registered Will dated 23.03.2010. As per the said Will, the properties scheduled in A to D were to be owned by the sons of the testators in the proportion mentioned therein. It was also specified that the Will would take effect immediately on the death of the executants. It is the stipulation in Ext.P2 that the petitioner herein has to pay Rs.1,00,000/- each to the daughters of the testators. Since the Will has already taken effect on the death of the executants, the petitioner applied for mutation of the property covered by Ext.P2 Will. It was at this stage that Ext.P3 is issued to the petitioner.
3. Sri.Renjith Thampan, the learned Senior
Counsel for the petitioner submits that the stand taken by the 1st respondent in Ext.P3 is contrary to the provisions under Rule 16 of the Transfer of Registry Rules, 1966 (for short, 'the Rules’). He refers to the decision of this Court in Sree Sankara Funds (P) Ltd. (M/s.) v. Tahsildar (Land), Tvm. and Others [2021 (6) KHC 269] to support this case. Paragraph 13 thereof reads as follows:-
“13. There is yet another infirmity in Ext.P9. It is a settled proposition that transfer of registry or mutation carried out in the revenue records, does not determine title to a property and they only enable the person in whose favour the mutation is recorded to pay the land revenue for the property in question. (see Prahlad Pradhan and Others v.
Sonu Kumhar and Others (2019 KHC 4929 :
(2019) 10 SCC 259 : 2019 (14) SCALE 48 :
2019 (4) KLT 374)). The title to a property is determined by the title deeds. Under S.3(3) of the Kerala Land Tax Act, 1961, a landholder is defined as including a registered holder for the time being in force. The registration of the sale certificate, as is evident from Ext.P6, is sufficient to clothe the petitioner with the nomenclature ‘landholder’. The revenue authorities cannot adjudicate on the validity or otherwise of the title deeds. Further, none has raised any question on the validity of the title deed of the petitioner - not even the borrowers. In such circumstances, the revenue authorities are not entitled to question the validity of the registered sale certificate.”
4. He further refers to Note (ii) to Rule 10 of the Rules which deals with the procedure for effecting mutation in uncontested cases referred to in Rule 9. Note (ii) to Rule 10 reads as follows:-
“Note. - (ii) The cases coming under the second category are transfers due to inheritance acquisition of title by adverse possession etc. for which the parties might have applied under Rule 4. Most of such cases are usually uncontested but in all such cases notices should be issued to the parties interested, if any, inviting objections, to the transfer of registry. The objection should be preferred within 15 days of the service of the notice. Copies of the notice shall also be published on the Notice Board of the
concerned Village, Panchayat and Taluk Offices. Such cases shall also be disposed of by the Deputy Tahsildar on merits, after giving the parties concerned an opportunity of being heard. A Revenue Inspector after making personal enquiry in the village where the land situated may dispose of such of the petitions, presented to him and also such of the cases of transfer ascertained by him as do not involve the formation of new sub- divisions and about which there is no dispute.”
Going by the aforesaid Note (ii) to Rule 10, the procedure the 1st respondent has to follow in the present case is to issue notice to parties interested and invite their objections. The 1st respondent cannot refuse to mutate the property on the ground that the conditions in the Will have not been complied with.
5. Since Ext.P3 has been issued without
following the procedure contemplated under Note (ii) to Rule 10 of the Rules, the same is set aside. There will be a direction to the 1 st respondent to comply with the procedure prescribed under Note (ii) to Rule 10 and take steps for effecting mutation pursuant to the application submitted by the petitioner. This shall be done within a period of six weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above direction. Sd/- MURALI PURUSHOTHAMAN JUDGE SPR APPENDIX PETITIONER’S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE JUDGMENT REPORTED IN 2021(6) KHC 269 (SREE SANKARA FUNDS (P) LTD.(M/S.) V. TAHSILDAR (LAND) TVM AND OTHERS). EXHIBIT P2 TRUE COPY OF THE WILL EXECUTED BY KUNJUVAREETH @ GEORGE AND MARY, WILL NO.73/2010 DATED 23.03.2010. EXHIBIT P3 TRUE COPY OF THE LETTER DATED 05.09.2023 OF THE 1ST RESPONDENT.
RESPONDENTS EXHIBITS: NIL.