Rukmini Amma and Others v Subhadra Amma and Others (W.P.(C.) No. 720 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 3[RD] DAY OF JANUARY 2022 / 13TH POUSHA, 1943** ## **WP(C) NO. 720 OF 2012** ## **PETITIONER/S:** 1 RUKMINI AMMA AGED 73 YEARS D/O NARAYANAN NAIR, RESIDING AT AYYANARI HOUSE, PO. CHULOOR, KOZHIKODE-673601. 2 SAHADEVAN NAIR AGED 69 YEARS S/O. NARAYANAN NAIR, RESIDING AT PADINHAREKALIYEDATH HOUSE PO. NAYARKUZHI, KOZHIKODE-673601. 3 P.M. LAKSHMIKUTTY AMMA AGED 60 YEARS D/O NARAYANAN NAIR, RESIDING AT MANJAKKOTT HOUSE, PO. MAVOOR, KOZHIKODE-673 631. 4 SUMATHI AMMA AGED 53 YEARS D/O NARAYANAN NAIR, RESIDING AT THYKANDIYIL HOUSE, PO. NAYARKUZHI, KOZHIKODE 673601. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH ## **RESPONDENT/S:** 1 SUBHADRA AMMA W/O. KUTTIKRISHNAN NAIR, RESIDING AT PADINHARA THODUKAYIL HOUSE, PO. NAYARKUZHI, VIA REC, KOZHIKODE-673601. 2 THE TAHASILDAR CIVIL STATION, CALICUT-673020. 3 THE VILLAGE OFFICER POOLAKODE VILLAGE, VIA R.E.C, P.O. NAYARKUZHI, KOZHIKODE 673 601. BY ADVS. SMT.K.PUSHPAVATHI SRI.A.SUDHI VASUDEVAN ## **OTHER PRESENT:** SRI.RAJEEV JYOTHISH GEORGE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC No. 720/2012 2 ## **P.V.KUNHIKRISHNAN, J** **---------------------------------W.P.(C.) No. 720 of 2012** **-------------------------------Dated this the 3[rd] day of January, 2022** ## **JUDGMENT** ## The above writ petition is filed with following prayers : i) “Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to hear the petitioners also in its proceedings initiated by it pursuant to the application filed by the 1[st] respondent seeking permission to remit land tax pursuant to Ext. P3 will. ii) Issue a writ of certiorari or any other appropriate writ order of direction quashing any order if any passed by the 2nd respondent on the application filed by the 1[st] respondent seeking permission to remit land tax on the basis of Ext.P3 will. iii) Issue a writ of mandamus or any other appropriate writ order or direction directing the 3[rd] respondent not to receive land tax from the 1st respondent on the basis of any order passed by the 2nd respondent on the basis of Ext.P3 will relied upon by the 1st respondent. iv) Issue any other appropriate writ or order which this Honourable court may deem just fit and proper in the facts and circumstances of the case and sufficient for the redressal of the grievances of the petitioner.” 2. The petitioners and the 1[st] respondent are the children of late Narayanan Nair. Apart from the petitioners and WPC No. 720/2012 3 the 1[st] respondent, deceased Narayanan Nair had three other children. Late Narayanan Nair had executed Ext.P1 will distributing his properties equally among his legal representatives. The said will was executed in the year 1993 and was deposited before the District Registrar, Kozhikode. Upon the death of Narayanan Nair in the year 2002, it is contended by the petitioners that, the will has become operative and the parties are in possession and enjoyment of the respective properties pursuant to Ext.P1. The distribution of assets of late Narayanan Nair as per Ext.P1 will, according to the petitioners was uniform. It is the case of the petitioners that after almost an year prior to his death, Narayanan Nair had become senile and had lost his sound state of disposition. The 1[st] respondent was not satisfied with the property allotted to her. It is the case of the 1[st] respondent that Narayanan Nair had executed another will just prior to his death and that the parties are governed by that will. Ext.P3 is the will. Accordingly, the suit for partition against the legal representatives of Narayanan Nair and a suit for injunction WPC No. 720/2012 4 against the 3[rd] petitioner on the basis of Ext.P3 will was filed before the civil court. Subsequently, the 1[st] respondent withdrawn both the suits with liberty to file it again. Exts.P4 and P5 are the judgments in both the suits. During the pendency of those suits, the 1[st] respondent applied before the 2[nd] respondent to remit land tax in accordance to Ext.P3 will. The same was contested by the 3[rd] petitioner and on reference, the District Collector as per Ext.P6 order directed the parties to maintain status quo and further held that the parties will govern by the decision of the civil court. It is the case of the petitioners that, the 1[st] respondent in collusion with the 2[nd] respondent made another application to remit tax based on Ext.P3 will. It is the case of the petitioners that Ext.P6 order was suppressed by the 1[st] respondent. On coming to know about the same, the petitioners submitted an application before the 2[nd] respondent for impleading them in the proceedings. That was refused. In such circumstances, this writ petition was filed. 2. Heard the learned counsel for the petitioners and the WPC No. 720/2012 5 learned Government Pleader. There is no representation for respondent No.1. No counter is also filed by the 1[st] respondent. 3. The counsel for the petitioners reiterated the contentions of the petitioners in this writ petition. The counsel submitted that in the light of the fact that the suit already withdrawn, there is no difficulty in accepting tax from the petitioners based on Exts.P1 and P2. The counsel submitted that Ext.P6 will not stand in the light of Exts.P4 and P5 judgments of the civil court, by which the 1[st] respondent already withdrawn the suit. The Government Pleader submitted that the tax is not accepted because of the pendency of the suit. There was a dispute between the petitioners and the 1[st] respondent and that is why the tax was not accepted. 4. The contentions raised by the petitioners and the Government Pleader are considered based on the documents. Admittedly, Ext.P6 order was passed on 5.5.2006 and thereafter, the civil court passed Exts.P4 and P5 judgments. O.S.No. 631/2003 was filed for partition by the 1[st] respondent and O.S.No.527/2004 was filed by the 1[st] respondent for WPC No. 720/2012 6 injunction. Both the above suits were withdrawn by the 1[st] respondent with liberty to file a fresh suit. According to the petitioners, no fresh suit is filed to their knowledge. In such circumstances, there can be a direction to the authority concerned to accept tax from the petitioners based on Exts.P1 and P2, if there is no other prohibitory orders from the civil court. It is made clear that if there is any dispute about the acceptance of tax from the petitioners, the affected parties can approach the civil court and the decision of the civil court will govern the issue. Mutation of property and acceptance of tax will not by itself either create or extinguish title nor has it any presumptive value on title and it only enables the person in whose favour, the mutation has been accepted to pay the land revenue in question (See :- **Sawarni v. Inder kaur and others** [(1996) 6 SCC 223] and **Larson T.George v. State of Kerala** [2019 (1) KLT 128]). 5. The Government Pleader submitted that since the civil suits are pending before the civil court, the land tax was not accepted from both parties. From the facts and WPC No. 720/2012 7 circumstances, this writ petition can be disposed of directing the 3[rd] respondent to accept tax from the petitioners based on Exts.P1 and P2, if there is no prohibitory orders from civil court. Therefore, this writ petition is disposed of in the following manner : - 1) The 3[rd] respondent is directed to accept tax from the petitioners forthwith based on Exts.P1 and P2, if there is no prohibitory orders from the civil court. - 2) If there is any grievance to the 1[st] respondent or any other aggrieved parties about the acceptance of tax from the petitioners based on Exts.P1 and P2, they are free to approach the civil court in accordance to law and in such situation, the decision of the civil court will govern the issue. SD/- ## **P.V.KUNHIKRISHNAN, JUDGE** SKS WPC No. 720/2012 8 ## **APPENDIX** **PETITIONER'S EXHIBITS :** **EXHIBIT P1 : COPY OF THE WILL EXECUTED BY LATE NARAYANAN NAIR DATED 9.3.1993** **EXHIBIT P2 : TRUE COPY OF THE GIFT DEED EXECUTED BY NARAYANAN NAIR IN FAVOUR OF THE 3RD PETITIONER DATED 27.10.1998 EXHIBIT P3 : TRUE COPY OF THE WILL DATED 30.4.2002** **EXHIBIT P4 : TRUE COPY OF THE JUDGMENT IN OS 631/2003 DATED 26.9.07** **EXHIBIT P5 : TRUE COPY OF THE JUDGMENT IN OS 527/04 DATED 19.11.2008** **EXHIBIT P6 : TRUE COPY OF THE ORDER OF DISTRICT COLLECTOR KOZHIKODE DATED 5.5.2006** **EXHIBIT P7 : TRUE COPY OF THE REQUEST FILED BY THE PETITIONERS DATED 26.8.2011 BEFORE THE 2ND RESPONDENT** **EXHIBIT P8 : TRUE COPY OF THE PETITION DATED 20.10.2011** **RESPONDENT'S EHXIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **SKS**