Valsamma Joy v. The District Collector, Thrissur & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** ## **WP(C).No. 2673 of 2019** ## **PETITIONER/S:** **VALSAMMA JOY, AGED 45 YEARS D/O PORINJU, THARAKKAN HOUSE, KILLANOOR VILLAGE, CHOTTUPARA P.O.THRISSUR DISTRICT, PIN 680 581.** **BY ADV. SRI.RAJESH CHAKYAT** ## **RESPONDENT/S:** |**1**|**THE DISTRICT COLLECTOR,**| |---|---| ||**THRISSUR, COLLECTORATE, THRISSUR, CIVIL LNE,**| ||**AYYANTHOLE, THRISSUR.**| |**2**|**THE THASILDAR,**| ||**THRISSUR TALUK, OPPOSITE TOWN HALL, PALACE ROAD,**| ||**CHEMBUKKAV, THRISSUR PIN 680022.**| |**3**|**THE VILLAGE OFFICER,**| ||**KILLANOOR VILLAGE, THANGALOOR, THRISSUR,**| ||**PIN 680 581.**| ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 2673 of 2019 ================== Dated this the 29[th] day of February, 2019 ## **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - _“i) Call for the records and issue a writ of certiorari quashing Exhibit P-8._ - _ii) Issue a writ of mandamus or appropriate writ or order directing the 2[nd] and 3[rd] respondent to effect mutation of the property in survey number 1026/3 of Killannur village in the name of the petitioner._ - _iii) Issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the interest of justice and in the circumstances of the case;”_ 2. Heard Sri.Rajesh Chakyat, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents. 3. The petitioner is aggrieved by the impugned Ext.P-8 notice/letter dated 22.5.2018 issued by the 3[rd] respondent Village Officer, Killanoor, Thrissur District, whereby he has directed the petitioner to produce the probate of the will as well as to produce her succession certificate in order to effect mutation of the subject property concerned in favour of the petitioner. 4. The brief factual aspects of the matter are as follows:- The petitioner's mother's sister, one Eetthamma, had executed Ext.P-1 W.P.(C).2673/19 - : 3 :- unregistered will dated 12.4.1996, as per which the subject property covered by Ext.P-1 will Sy.No. 1206/3 of Killannur Village having an extent of 29 cents have been bequeathed in the name of the petitioner after the death of the said testator Eetthamma. Eetthamma had died on 26.3.1997. 5. After the death of Eethamma (petitioner's mother's sister), the petitioner had transferred the subject property in the name of his sister, Mini as per Ext.P-2 registered sale deed No.4018/97 of SRO, Thrissur. Later, the petitioner's sister, Mini had committed suicide on 26.12.2000. As can be seen from Ext.P-4 family membership certificate issued by none other than the 3[rd] respondent Village Officer, the said Mini had only two legal heirs, viz, one of which is the petitioner and the other is the petitioner's mother Mariyamma. The petitioner's mother Mariyamma had also died on 12.12.2014. The petitioner is the only surviving legal heir of her mother Mariyamma and now, for availing loan facility, the petitioner has been advised to ensure that the subject property is duly mutated in her name, as otherwise the banks will not be able to consider it for loan application. 6. By the impugned Ext.P-8 letter dated 22.5.2018, the 3[rd] respondent Village Officer has directed the petitioner to produce the W.P.(C).2673/19 - : 4 :- probate of the abovesaid will and also to produce the succession certificate, etc. Further, it is seen that, after the death of the petitioner's mother's sister, Mini, basic land tax has been accepted by the 3[rd] respondent Village Officer in the name of the petitioner, but the formal thandapper account holder is still shown as the deceased Mini even after death, as can be seen from Ext.P-7 land tax receipt dated 26.7.2018. 7. Sec. 213 of the Indian Succession Act, 1925 provides as ## follows: _Sec.213: Right as executor or legatee when established.-(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed._ _(2) This section shall not apply in the case of Wills made by Muhammadans or Indian Christians, or and shall only apply-_ - _(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57; and_ - _(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.”_ Though sub section (1) of Sec. 213 stipulates that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, etc. However, sub section (2) of Sec. 213 W.P.(C).2673/19 - : 5 :- specifically provides that Sec.213 shall not apply in the case of Wills made by Muhammadans or Indian Christians, etc. The said provision regarding non-applicability of Sec.213 has been engrafted as sub section (2) of Sec. 213 in the case of non Indian Christians as per Amendment Act 26 of 2002 made effective from 27.5.2002. Moreover, it can also be seen from para 14 of the judgment dated 28.9.2017 of the Division Bench of this Court in MFA No.41/2009 [ _**Kurian @ Jacob v. Chellamma John & Ors.**_ reported in 2017 (5) KHC 257 = ILR (4) Ker.750 = 2017 (4) KLT SN 55] that earlier State amendment was also incorporated in sub section (2) of Sec. 213 of the Indian Succession Act, 1925, where after the words, “ _Muhammadans_ ”, the words “ _or Indian Christians_ ” were inserted by the Kerala Amendment Act, 1996 (made effective from 14.3.1997). The Division Bench of this Court in the abovesaid _**Kurian's case**_ supra has held in para 42 that with the abovesaid amendment any bar against recognizing the rights of an executor or a legatee under a will of a Christian without his or her producing a probate has been done away with. In other words, a person nominated as an executor or a legatee under a Will executed by a deceased Christian can establish his/her rights under the Will without obtaining a probate, etc. In view of the aspects, the insistence by the 3[rd] respondent W.P.(C).2673/19 - : 6 :- Village Officer in the impugned Ext.P-8 to necessarily produce probate for proceeding further with her application for mutation, etc. is highly unwarranted. Moreover, it is clear from Ext.P-4 family membership certificate issued by none other than the 3[rd] respondent Village Officer that the deceased Mini, (who had obtained property as per Ext.P-2 registered sale deed) had only two legal heirs, viz. petitioner and her mother, Mariyamma. It is stated that Mariyamma had died on 12.12.2014. If that be so, the petitioner is the sole surviving legal heir of Mini, which is discernible from Ext.P-6 family membership certificate issued by none other than the 3[rd] respondent Village Officer after the death of Mariyamma. Moreover, it is to be noted that as per Ext.P-1 will, there was a condition that Rs. 2,500/should be given to the sisters of Eetthamma (Testator) and receipt in that regard should be obtained and that petitioner has given Rs. 2500/- each to two sisters of Eetthamma and one such sister of Eetthamma is none other than the petitioner's mother. It is later that the petitioner has assigned the subject property as per Ext.P-2 registered deed in favour of the petitioner's sister Mini. It is stated that the abovesaid receipt of Rs.2,500/- each of the abovesaid two sisters of Eetthamma has been duly registered as document Nos.397/1997 dated 25.7.1997 of SRO, Thrissur. In these W.P.(C).2673/19 - : 7 :- circumstances, it is ordered that the impugned insistence in Ext.P-8 letter is unwarranted and the same will stand rescinded. The application of the petitioner for mutation will stand remitted to the 3[rd] respondent Village Officer for consideration afresh in accordance with law. The 3[rd] respondent may conduct inquiries to ascertain the correctness of Ext.P-4 family membership certificate as well as Ext.P-6 family membership certificate so as to ascertain as to whether the petitioner is the sole surviving legal heir of the deceased Mini. The petitioner will also produce certified copy of the receipt registered as document No.397/1997 dated 25.7.1997 of SRO, Thrissur, so as to apprise the 3[rd] respondent that the conditions in Ext.P-1 will were also duly fulfilled before the transfer of the property in favour of Mini as per Ext.P-2 registered sale deed. If the 3[rd] respondent, after abovesaid inquiry is convinced that the petitioner is the sole surviving legal heir of the deceased Mini and the petitioner has also duly produced the certified copy of the abovesaid receipt in respect of payments covered by Ext.P-1 will, etc. then there may not be any other serious obstacles in granting the request of the petitioner for the mutation, etc. The 3[rd] respondent Village Officer will grant reasonable opportunity of being heard to the petitioner so as to consider the request of the petitioner for transfer of registry, W.P.(C).2673/19 - : 8 :- mutation and for acceptance of basic land tax in respect of the subject property and will grant the said request, if it is otherwise in order. The entire process in this regard shall be duly completed within 6 weeks from the date of production of a certified copy of this judgment. With these observations and directions, the abovesaid Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** W.P.(C).2673/19 - : 9 :- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE WILL EXECUTED BY ECHAMMA DATED** - **EXHIBIT P2 A TRUE COPY OF THE DEED NO 4018/1/97 EXECUTED BY THE PETITIONER** - **EXHIBIT P3 A TRUE COPY OF THE DEATH CERTIFICATE OF MINI DATED 18.1.2001** - **EXHIBIT P4 A COPY OF THE FAMILY MEMBERSHIP CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 9.2.2001** - **EXHIBIT P5 A TRUE COPY OF THE DEATH CERTIFICATE OF MARIYAMMA DATED 25.2.2014** - **EXHIBIT P6 A TRUE COPY OF THE FAMILY MEMBERSHIP CERTIFICATE ISSUED TO THE PETITIONER AFTER THE DEATH OF MARIYAMMA** - **EXHIBIT P7 A TRUE COPY OF THE TAX RECEIPT DATED 26.7.2018** - **EXHIBIT P8 A TRUE COPY OF THE NOTICE/LETTER BY THE VILLAGE OFFICER DATED 22.5.2018**