Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 24TH DAY OF JANUARY 2022 / 4TH MAGHA, 1943 WP(C) NO. 1992 OF 2020 PETITIONER: THOMAS JOSEPH, AGED 56 YEARS S/O. JOSEPH KOSHY, LEMON VILLA, CHERTHALA P O, CHERTHALA NORTH VILLAGE, CHERTHALA, ALAPPUZHA, PIN- BY ADVS. P.B.SAHASRANAMAN T.S.HARIKUMAR RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, THIRUVANANTHAPURAM-695 001. 2 DISTRICT COLLECTOR, ALAPPUZHA-688 001. 3 THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA-688 001. 4 THE TAHSILDAR(LR) TALUK OFFICE, CHERTHALA, ALAPPUZHA DISTRICT, PIN-688524. 5 VILLAGE OFFICER, CHERTHALA NORTH, ALAPPUZHA DISTRICT, PIN-688524. 6 KOSHY JOSEPH, AGED 55 YEARS, S/O. JOSEPH KOSHY, LEMON VILLA, CHERTHALA NORTH VILLAGE, CHERTHALA P O, ALAPPUZHA, PIN-688524.
7 BEN JOSEPH KOSHY AGED ABOUT 30 YEARS, S/O KOSHY JOSEPH, LEMON VILLA, CHERTHALA NORTH VILLAGE, CHERTHALA P O, ALAPPUZHA, PIN-688524. 8 TEDY THOMAS, AGED 30 YEARS, S/O. JOSEPH KOSHY, RESIDING AT LEMON VILLA, CHERTHALA NORTH VILLAGE, CHERTHALA P O, ALAPPUZHA, PIN-688524. BY ADV SRI.K.RAMANADHAN SRI. ASHWIN SETHUMADHAVAN - SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 24th day of January, 2022. The property, which is the subject matter of this case, is stated to be covered by a Will bearing number of the petitioner.
2. The petitioner says that the Will in question is
a fraudulent one and that he has, therefore, filed O.S.No. 443 of 2019 before the Principal Munsiff Court, Cherthala, seeking a declaration that it is not genuine, leading to the partition of the property, as also for a permanent prohibitory injunction against respondents 6 and 7, who are his brother and nephew respectively.
3. Sri.P.B.Sahasranaman - learned counsel for the
petitioner, explained that, along with the aforementioned suit, his client filed I.A.No.2960 of 2019, which was allowed, through Ext.P1, by the learned Munsiff on 01.11.2019, holding that the question whether the Will is
vitiated by fraud, coercion, undue influence and misrepresentation can only be determined after trial. He submitted that, this order was then challenged by the party respondents, by in CMA No.26 of 2019, culminated in Ext.P2 dated 07.12.2019, not merely confirming Ext.P1, but also making it clear that no documents, including for transfer of Registry with respect to the plaint schedule properties, will be allowed till the
disposal of the suit. The learned counsel alleged that, however, in spite of the unambiguous directions of the First Appellate Court, the Revenue Divisional Officer
(RDO) issued Ext.P8 order on the same day, namely
07.12.2019, addressed to the Tahsildar, Cherthala, permitting transfer of Registry of the property in favour of respondents 7 and 8. He then pointed out that this
order appears to have reached the office of the Tahsildar
on the same day, consequent to which, said Authority issued Ext.P9 - also on the same day - to the Village Officer, asking transfer of Registry to be effected. He then showed me that the said exercise is also stated to have been completed on the very same day, thus establishing the malafides involved in this case, particularly, when such action was specifically interdicted by the competent First Appellate Court through Ext.P2.
4. Sri.P.B.Sahasranaman thus prayed that Exts.P8 and P9 be set aside and that the transfer of Registry of the property, stated to have been effected pursuant thereto, be declared to be null and void.
5. The afore submissions of Sri.P.B.Sahasranaman, were answered by Sri.Ramanathan K. - learned counsel appearing for respondents 6 and 7, arguing that Exts.P8 and P9, though issued on 07.12.2019, emanated from an
application, which was made much prior to that. He pointed that, in fact, the RDO had obtained the report of the Tahsildar dated 04.11.2019, based on which, Ext.P8 communication was issued, leading to the transfer of Registry effected in favour of his client. He then argued that the petitioner cannot rely upon Ext.P2 order of the First Appellate Court, because it has not become final,
since his client has already preferred Ext.R7(3) application for its review. He concluded his submissions saying that the transfer of Registry effected in favour of his client cannot be assailed by the petitioner before this Court, since his proper remedy was to approach the Trial Court, which he has done through two different applications, namely Exts.R7(1) and R7(2); and thus prayed that this writ petition be dismissed.
6. Sri.Aswin Sethumadhavan - learned Senior
Government Pleader, appearing for the official respondents, submitted that the RDO and the Tahsildar issued Exts.P8 and P9 respectively, only because, in Ext.P1 order of the Trial Court, there was no interdiction against the transfer of Registry of the property in question. He submitted that it is only the First Appellate Court, through Ext.P2, which had ordered against the transfer of Registry of the property, but that before the same was received by the afore said Authorities, the exercise had been completed. He, therefore, prayed that this writ petition be dismissed; however, adding that the
competent Authorities are willing to abide by any orders to be issued by this Court.
7. The afore narration of facts would clearly show
that, even as per the RDO and the Tahsildar, they had allowed the Village Officer to effect transfer of Registry of the property on the strength of the disputed Will, because the Trial Court had not, in Ext.P1 order, interdicted such an action. They further maintain that, it is only after the transfer of Registry had been completed, that they came to be aware of Ext.P2 order of the First Appellate Court.
8. I must certainly say that this Court is not happy
with the afore stand taken by the RDO or the Tahsildar because, going by Ext.P1 order, it is clear that the question whether the Will in question was vitiated by fraud, misrepresentation or such other was already
seized by a Competent Civil Court. Obviously, therefore, prudence mandated the competent Authorities not to act upon any application on the transfer of Registry of the property which is involved in the suit. However, for the sole reason that Ext.P1 did not specifically mention about the transfer or Registry, the RDO appears to have issued
Ext.P8, followed by Ext.P9 communication of the Tahsildar to the Village Officer, thus leading to the transfer of Registry being completed.
9. At this time, I must record one more aspect
that causes some distress to the mind of this Court. Ext.P8 has been issued by the RDO sitting at Alappuzha, addressed to the Tahsildar at Cherthala and it appears that the said order reached the latter almost immediately upon its issue on 07.12.2019. This is apodictic because the Tahsildar, Cherthala, has thereafter, issued Ext.P9 on
the same day to the Village Officer Cherthala, North, which also appears to have been received by the latter Authority immediately, thus leading to the transfer of Registry of the property in favour of respondents 6 and 7 on the very same day. The speed with which the orders travelled from one office to the other, so as to lead to the transfer of Registry on 07.12.2019 itself, prima facie,
cannot be seen as “efficiency” , but to be guided by factors which this Court do not intend to speak in detail at this stage, especially since Ext.P2 order was also issued by the First Appellate Court on 07.12.2019.
10. That said, it is relevant that Ext.P2 order is
admittedly dated 07.12.2019, and it is probable that transfer of Registry must have been effected, based on Exts.P8 and P9, only thereafter. Inevitably, therefore, the unusually fast action of transfer of Registry in favour of respondents 6 and 7, can obtain no support in law, especially when, prima facie, it appears to have been done after Ext.P2 order had been issued by the First Appellate Court.
11. In such scenario, the fact that petitioner has
approached the Trial Court through Exts.R7(1) and R7(2) applications for cancellation of transfer of the Registry would not stop this Court from exercising jurisdiction, because the entire exercise is shrouded in suspicion - though I do not intend to speak on it detail now, since, it might influence the proceedings of the Trial Court.
12. In the conspectus of the above, it is suffice to say that Exts.P8 and P9 orders and the consequent transfer of Registry of the property in favour of respondents 6 and 7 after Ext.P1 order has been issued
by the Trial Court, certainly cannot be granted imprimatur, and such action will have to construed to be without the authority of law. In the afore circumstances, I order this writ petition
and set aside Exts.P8 and P9, as also all action taken pursuant thereto; however, clarifying that this will not influence the right of respondents 6 and 7 to obtain orders from any Court, including by pursuing Ext.R7(3) application; and should any Court permit the transfer of Registry at any point of time, then certainly, they will be at liberty to bring such orders to the notice of the competent Authorities, who will thereupon effect such, following due procedure.
Sd/- DEVAN RAMACHANDRAN JUDGE Raj/03.02.2022. APPENDIX OF WP(C) 1992/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER IN IA NO.2960/2019 IN OS 443/2019 DATED 01.11.2019 ON THE FILE OF PRINCIPAL MUNSIFF COURT, CHERTHALA. EXHIBIT P2 TRUE COPY OF JUDGMENT IN CMA NO.26/2019 DATED 07.12.2019 ON THE FILE OF THE SUBORDINATE JUDGE, CHERTHALA. EXHIBIT P3 TRUE COPY OF NOTICE DATED 08.10.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P4 TRUE COPY OF INFORMATION GIVEN BY 5TH RESPONDENT UNDER THE RIGHT TO INFORMATION ACT DATED 29.10.2019 TO THE PETITIONER. EXHIBIT P5 TRUE COPY OF NOTICE DATED 28.11.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P6 TRUE COPY OF LETTER DATED 04.12.2019 SENT BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE DEPARTMENT OF POSTS, INDIA TO THE PETITIONER DATED 5.12.2019. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 07.12.2019 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 07.12.2019 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P10 TRUE COPY OF THE INFORMATION GIVEN BY THE 5TH RESPONDENT DATED 18.12.2019 TO THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.2005. EXHIBIT P11 TRUE COPY OF PETITION FILED BY THE PETITIONER BEFORE 2ND RESPONDENT DATED 20.12.2019. EXHIBIT P12 TRUE COPY OF PETITION DATED 23.12.2019 FILED BY PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P13 TRUE COPY OF PETITION FILED BY THE PETITIONER BEFORE 4TH RESPONDENT DATED 19.12.2019. EXHIBIT R7(1) THE TRUE COPY OF I.A NO.1/2020 FILED BY THE PETITIONER IN CMA 26/2019 BEFORE THE SUB COURT CHERTHALA EXHIBIT R7(2) THE TRUE COPY OF I.A NO.2/2020 FILED BY THE PETITIONER IN CMA 26/2019 BEFORE THE SUB COURT CHERTHALA EXHIBIT R7(3) THE TRUE COPY OF I.A NO.797/2019 FILED IN CMA 26/2019 BEFORE THE SUB COURT CHERTHALA