Prabhakumari and Beenakumari v. District Collector, Kollam and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.V. Ramakrishna Pillai
Judgment Date: 2014-03-31
Court Decision / Holding: Writ petition dismissed; reserving the right of the parties to approach the competent Civil Court for redressal of their grievance.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Prabhakumari d/o Late Smt. Ambikakumari, Ambika Nivas Mundakkal Cheri, Mundakkal Village, Kollam District
Beenakumari d/o Late Smt Ambikakumari, Ambika Nivas, Mundakkal Cheri, Mundakkal Village Kollam District

Respondents

District Collector, Kollam
The Tahsildar, Taluk Office, Kollam
The Re-Survey Superintendent, Punalur Municipal Building, Chinnakkada, Kollam
The Taluk Surveyor, Kollam Taluk, Kollam
The Village Officer, Mundakkal Village, Kollam
S. Mohanarajan, Ambika Nivas, Mundakkal West, Kollam
K.S. Shajikumar, 8th Floor, Heera Plaza, Pattom P.O., Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Shabu Sreedharan
• C.K. Prasad
• T.S. AnuraJ
• P. Sanjay Shenoi

Counsels for Respondents

• R. Kishore
• G. Hariprasad
• Arun Babu
• Government Pleader
• R. Ranjith

Case Synopsis & Summary

The petitioners, Prabhakumari and Beenakumari, siblings of respondents 6 and 7, approached the Kerala High Court with a writ petition challenging the mutation of property in the name of respondents 6 and 7. They allege that their mother revoked an earlier will (Ext. P1, 1985) benefiting respondents 6 and 7 and executed a later will (Ext. P2, 2003) in their favour, making Ext. P2 the last will of the mother. After the mother’s death (9 January 2009), respondents 6 and 7 obtained mutation of the property based on Ext. P1. The petitioners filed Ext. P4 seeking mutation in their favour on the strength of Ext. P2, but respondents 1–5 refused, contending the property had already been mutated in favour of respondents 6 and 7 pursuant to Ext. P1. The State counter affidavit notes that Ext. P1 includes a clause distributing absolute rights on death and that Ext. P2 is under scrutiny; mutation in favour of respondents 6 and 7 is already effected. The court observed that there are two competing wills and that which will prevail is a matter for a competent Civil Court. Relying on Vadakkayil Gopalan v. Vadakkayil Paru and Others, the court held that the propounder must prove the genuineness of a will and dispel suspicious circumstances, even in the absence of a denial of execution. Consequently, the writ petition was dismissed, reserving the parties’ right to seek relief in a civil forum.

Legal Doctrines & Maxims

Duty of the propounder of a Will to prove its genuineness and to dispel all suspicious circumstances (Vadakkayil Gopalan v. Vadakkayil Paru and Others, 2013(3) KLT 69)
Absence of denial of execution does not absolve the duty to prove genuineness

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that two Wills (Ext. P1 in favour of respondents 6 and 7; Ext. P2 in favour of the petitioners) are in existence over the same property. They argue Ext. P2 is the valid last Will and ask for mutation in their favour, challenging mutation already done in favour of respondents 6 and 7 based on Ext. P1.

Contentions of Respondents

The respondents/authorities argue that Ext. P1 contains a clause giving absolute right to one party on the death of the other and that Ext. P2 is under scrutiny. They assert the mutation in favour of respondents 6 and 7 has already been effected as per Ext. P1 and that the petitioners’ claim requires adjudication by a Civil Court.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vadakkayil Gopalan and others v. Vadakkayil Paru and Others	2013(3) KLT 69	Positive	Cited to support the principle that the propounder must prove the genuineness of a Will and dispel suspicious circumstances, even in the absence of a denial of execution.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936 ## WP(C).No. 14257 of 2011 (F) ## PETITIONERS: 1. PRABHAKUMARI D/O.LATE SMT.AMBIKAKUMARI, AMBIKA NIVAS MUNDAKKAL CHERI, MUNDAKKAL VILLAGE, KOLLAM DISTRICT. 2. BEENAKUMARI, D/O.LATE SMT.AMBIKAKUMARI, AMBIKA NIVAS, MUNDAKKAL CHERI, MUNDAKKAL VILLAGE KOLLAM DISTRICT. BY ADVS.SRI.SHABU SREEDHARAN SRI.C.K.PRASAD SRI.T.S.ANURAJ SRI.P.SANJAY SHENOI ## RESPONDENTS: 1. THE DISTRICT COLLECTOR, KOLLAM KOLLAM, PIN-691 001. 2. THE TAHSILDAR, TALUK OFFICE, KOLLAM, PIN-691 001. 3. THE RE-SURVEY SUPERINTENDENT, PUNALUR MUNICIPAL BUILDING, CHINNAKKADA, KOLLAM PIN-691 001. ## 4. THE TALUK SURVEYOR, KOLLAM TALUK, KOLLAM, PIN-691 001. 5. THE VILLAGE OFFICER, MUNDAKKAL VILLAGE, KOLLAM, PIN-691 001. ## 6. S.MOHANARAJAN, AMBIKA NIVAS, MUNDAKKAL WEST, KOLLAM, PIN-691 001. 7. K.S.SHAJIKUMAR, 8TH FLOOR, HEERA PLAZA, PATTOM P.O., THIRUVANANTHAPURAM PIN-695 001. R,R7 BY ADV. SRI.R.KISHORE R,R7 BY ADV. SRI.G.HARIPRASAD R,R7 BY ADV. SRI.ARUN BABU R BY ADV. GOVERNMENT PLEADER R BY SRI. R. RANJITH, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14257 of 2011 (F) : 2 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: |EXT.P1|:|TRUE COPY OF THE REGISTERED WILL NO.41/1985 OF| |---|---|---| |||SRO, ERAVIPURAM DATED 28.10.1985 IN RE.SY. NO.| |||110/32 OF MUNDAKKAL VILLAGE.| |EXT.P2|:|TRUE COPY OF THE REGISTERED WILL NO.43/03 OF SRO,| |||ERAVIPURAM DATED 17.03.2003 IN RE. SY. NO. 110//32| |||OF MUNDAKKAL VILLAGE.| |EXT.P3|:|TRUE COPY OF THE DEATH CERTIFICATE OF THE| |||PETITIONER'S FATHER DATED 18.02.2009.| |EXT.P3(a)|:|TRUE COPY OF THE DEATH CERTIFICATE OF THE| |||PETITIONER'S MOTHER DATED 17.01.2009.| |EXT.P4|:|TRUE COPY OF THE APPLICATION BEFORE THE VILLAGE| |||OFFICER, MUNDAKKAL BY THE 1STPETITIONER DATED| |||20.04.2010.| |EXT.P5|:|TRUE COPY OF THE LETTER DATED 26.05.2010 BY THE 2ND| |||RESPONDENT TO THE 3RDRESPONDENT.| |EXT.P6|:|TRUE COPY OF THE ACKNOWLEDGMENT LETTER DATED| |||24.01.2011<br>ISSUED BY THE LAND REVENUE| |||COMMISSIONER.| |EXT.P7|:|TRUE COPY OF THE SAID INFORMATION DATED| |||19.04.2011.| ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## P.A. TO JUDGE rv WP(C).No. 14257 of 2011 (F) : 3 : ## A. V. RAMAKRISHNA PILLAI, J. - - - - - - - - - - - - - - - - - W.P.(C). No. 14257 of 2011 - - - - - - - - - - - - - - - - Dated this the 31[st] day of March, 2014. ## JUDGMENT The petitioners have approached this Court alleging that respondents 1 to 5 are not effecting mutation of a Will executed by their mother in their name on the ground that mutation has been effected already in favour of respondents 6 and 7 on the basis of an earlier will executed by their parents. 2. Petitioners and respondents 6 and 7 are siblings. In the year 1985, their parents executed a registered Ext.P1 Will in favour of respondents 6 and 7. The petitioners allege that subsequently, after the death of their father i.e., in the year 2003, their mother revoked the earlier Will and executed a registered Ext.P2 Will in favour of the petitioners. The petitioners further allege that thereafter, the petitioners' mother died on 09.01.2009 and the Will executed by the mother in their name is the last Will of the mother. They allege that Ext.P2 Will is in operation and they W.P.(C) No. 14257/2011 : 2 : are the absolute title holders and owners of the property. Their grievance is that after the death of their mother, respondents 6 and 7 approached the 3[rd] respondent and effected mutation of the property in their favour relaying on Ext.P1 Will and suppressing Ext.P2 Will. Subsequently, the petitioners filed Ext.P4 application for effecting mutation of the property in their favour relaying on Ext.P2 registered Will. However, the same was refused by respondents 1 to 5 on the ground that the property has already been mutated in the name of respondents 6 and 7 on the basis of Ext.P5. 3. A detailed counter affidavit has been filed by the State. In the counter affidavit, the State has taken a contention that Ext.P1 Will executed by the petitioners' parents contains a clause that on the death of one of the executants, the other would get the absolute right over the property. It was further averred that the petitioners' father expired on 26.08.1992 and subsequently, their mother executed Ext.P2 Will in respect of the same property in favour of the petitioners herein. It is further averred that W.P.(C) No. 14257/2011 : 3 : the 7[th] respondent filed an application before the Superintendent of Survey, Punalur for effecting mutation as per the previous Will i.e., Ext.P1 suppressing the execution of Ext.P2 Will and the mutation has been effected in his name. They also admitted that since the subsequent Will has been executed by the mother, the same is under scrutiny. 4. Arguments have been heard. 5. Admittedly, two Wills were executed in respect of the same property. The question which Will would prevail is a matter to be considered by a competent Civil Court in appropriate proceedings. This Court in Vadakkayil Gopalan and others v. Vadakkayil Paru and Others - 2013(3) KLT 69 has observed that even the absence of any specific denial of execution of a Will or even an admission of the existence will not absolve the duty of the propounder of a Will to prove its genuineness and to dispel all the suspicious circumstances, if any, surrounding its execution. 6. The only course open to this Court is to dismiss the W.P.(C) No. 14257/2011 : 4 : writ petition reserving the right of the parties to approach a ompetent Civil Court to get their grievances redressed. Therefore, this writ petition is dismissed reserving the right of the parties to approach the competent fourm for the redressal of their grievance. sd/- A. V. RAMAKRISHNA PILLAI, JUDGE. rv W.P.(C) No. 14257/2011 : 5 :