W.P.(C).Nos.11739 & 36011 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940** ## **WP(C).No. 11739 of 2018** ## **PETITIONER/S:** - **1 JAYACHANDRAN S/O.G.SREEDHARAN, AGED 60 YEARS,PRANAVAM, NEAR SIVASAKTHI TEMPLE, CHENKAL,CHENKAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM.** - **2 S.JAYAPALAN S/O.G.SREEDHARAN, AGED 65 YEARS,JANITHRAM, S.N.NAGAR, THURUVIKKAL P.O.,THIRUVANANTHAPURAM-695 011.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT/S:** - **1 DISTRICT COLLECTOR, THIRUVANANTHAPURAM CIVIL STATION, KUDAPPANAKKUNNU P.O.,THIRUVANANTHAPURAM-695 001.** - **2 THE TAHASILDAR NEYYATTINKARA TALUK, TALUK OFFICE,NEYYATTINKARA, THIRUVANANTHAPURAM-695 101.** - **3 THE VILLAGE OFFICER PARASSALA VILLAGE, NEYYATTINKARA,THIRUVANANTHAPURAM695 101.** - **4 V.G.ANUGRAGH S/O.VINAYACHANDRAN, MANGALA VIHAR,CHAKKAVILA, KARUMANNOOR DESOM,PARASSALA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-695 101.** **BY ADVS.** **SRI.V.G.ARUN (K/795/2004) SMT.INDULEKHA JOSEPH SRI.NEERAJ NARAYAN SRI.V.G.ARUN (K/795/2004)** ## **OTHER PRESENT:** **SRI.V.G.ARUN FOR R4, SRI.K.J.MOHAMMED ANZAR,SPL.GOVT.PLEADER(REVENUE)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2018, ALONG WITH WP(C).36011/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).Nos.11739 & 36011 of 2018 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940** ## **WP(C).No. 36011 of 2018** ## **PETITIONER/S:** **RINIL KUMAR AGED 37 YEARS S/O.BHASI RAJAN, MEDAYIL THEKKETHIL, PATTATHAANAM, KOLLAM.** **BY ADVS. SHAHIM BIN AZIZ SRI.E.C.AHAMED FAZIL** ## **RESPONDENT/S:** **1 THE DISTRICT COLLECTOR KOLLAM, CIVIL STATION, KOLLAM, KOLLAM DISTRICT, PIN691 008.** **2 THE TAHSILDAR, KOLLAM TALUK, TALUK OFFICE, KOLLAM, PIN-691001. 3 THE TAHSILDAR, KARUNAGAPALLY TALUK, TALUK OFFICE, KARUNAGAPALLY, KOLLAM DISTRICT, PIN-690918. 4 THE VILLAGE OFFICER, VADAKKEVILLA, VILLAGE OFFICE, VADAKKEVILLA, KOLLAM TALUK, KOLLAM DISTRICT, PIN-691021. 5 THE VILLAGE OFFICER, ALAPAD, VILLAGE OFFICE, VADAKEVILLA, KARUNAGAPALLY TALUK, KOLLAM DISTRICT, PIN-690573. 6 THE STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF LAND REVENUE, THIRUVANANTHAPURAM-695001. 7 SREEDEVI, AGED 45 YEARS W/O.JAYAKUMAR, MANKUZHI VEEDU, PATTATHANAM P.O., VADAKKEVILA, KOLLAM, PIN-691021.** W.P.(C).Nos.11739 & 36011 of 2018 -3- **VISHNU J., 8 AGED 22 YEARS S/O. LATE JAYAKUMAR, MANKUZHI VEEDU, PATTATHANAM P.O., VADAKKEVILA, KOLLAM, PIN-691021.** - **9 VAISHNAVI J.S., AGED 18 YEARS** - **S/O. LATE JAYAKUMAR, MANKUZHI VEEDU, PATTATHANAM P.O., VADAKKEVILA, KOLLAM, PIN-691021.** - **10 SHEEBA AGED 43 YEARS** - **W/O. LATE JAYAKUMAR, MANKUZHI VEEDU, PATTATHANAM P.O., VADAKKEVILA, KOLLAM, PIN-691021.** - **11 ASWATHY, AGED 23 YEARS** - **D/O.LATE ANILKUMAR, VELIYIL VEEDU, SARAVANA NAGAR268, ERVIPURAM P.O., ERAVIPURAM VILLAGE, KOLLAM PIN691011.** - **12 AKIL, AGED 21 YEARS** - **S/O.LATE ANILKUMAR, VELIYIL VEEDU, SARAVANA NAGAR268, ERVIPURAM P.O., ERAVIPURAM VILLAGE, KOLLAM PIN691011.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2018, ALONG WITH WP(C).11739/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).Nos.11739 & 36011 of 2018 -4- ## **ALEXANDER THOMAS, J** . --------------------- W.P.(C).Nos.11739 & 36011 of 2018 -----------------------Dated this the 23[rd] day of November, 2018. ## **J U D G M E N T** **The main prayers in W.P.(C).No.11739/2018 are** ## **as follows:** _“i) Call for the records leading to Exts-P1 to P9 from the 2[nd] respondent; ii) Quash Ext.P9 proceedings of the 2[nd] respondent by Issue a writ of certiorari or any other writ or direction; iii) Issue a writ of mandamus or any other writ or direction directing to the 2[nd] respondent to defer the proceedings pursuant to Ext.P6 and P9 till the Sub Court, Neyyattinkara disposes Ext.P2 and P4 suits. iv) Declare that the 2[nd] respondent is not competent to adjudicate the genuineness of Ext.P1 Will by examining the scribe and witness during the pendency of Ext.P2 and P4 suits as proposed in Ext.P9.”_ ## **2. The main prayers in W.P.(C).No.36011/2018** ## **are as follows:** _“I. to call for the records leading to Exhibits P1 to P5 and direct 4[th] respondent to accept land tax from petitioner for the property having extent of 2.14 Ares of property in Survey No.186/3/1/2 of Vadakkevila Village, Kollam Taluk and property having extent of 2.45 Ares of property in Survey No.176/14 of Vadakkevila Village, Kollam Taluk by issuing a writ of mandamus or any other appropriate Writ, Order or direction._ _II. Direct 5[th] respondent to accept land tax from petitioner for the property having extent of 30 Cents or property in Survey No.119/9-2 of Alapad Village, Kollam Taluk._ W.P.(C).Nos.11739 & 36011 of 2018 -5- - _III. Alternatively, to direct 2[nd] respondent to initiate proceedings under Rule 10(2) of the Transfer of Registry Rules with respect to property having extent of 2.14 Ares of property in Survey No.186/3/1/2 of Vadakkevila Village, Kollam Taluk and property having extent of 2.45 Ares of property in Survey No.176/14 of Vadakkevila Village, Kollam Taluk._ _IV. Alternatively, to direct 3[rd] respondent to initiate proceedings under Rule 10(2) of the Transfer of Registry Rules with respect to property having extent of 30 Cents of property in Survey No.119/9-2 of Alapad Village, Kollam Taluk.”_ ## **3. Heard Sri.Latheesh Sebastian, learned** **counsel for the petitioners in W.P.(C).No. 11739/2018, Sri.Shahim Bin Aziz, learned counsel for the petitioner in W.P.(C).No.36011/2018, so also for the contesting R-4 in W.P.(C).No. 11739/2018 and Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) appearing for the respondents in these cases.** **4. From a reading of the submissions and pleadings on record, it appears that these cases are involving request for grant of mutation in terms of the provisions contained in the Transfer of Registry Rules and it pertains to contingencies of contested and uncontested cases between the legal heirs/legatees and cases of this nature are** W.P.(C).Nos.11739 & 36011 of 2018 -6- **as envisaged in the provisions contained in Rule 27(i) of the Transfer of Registry Rules. Rules 9 to 11 of Transfer of Registry Rules, 1966, deal with uncontested cases and contested cases and the said Rules provide as follows:** **“** _**Rule 9:** The cases received in the Taluk Officer with the report of the Village Officer shall be classified and dealt with according to the following instructions._ _(a) Uncontested cases._ _(b) Contested Cases._ _(c) Cases involving sub-divisions._ _**Rule 10:** Uncontested cases may be of two kinds,-_ _(1) those which can be disposed of without further enquiry._ _(2) those in which a decision cannot be taken without conducting a further enquiry by the Deputy Tahsildar or Tahsildar._ _**Note.-** Cases of sale and other absolute transfer of land mentioned under Rule 3(a) and (b) will fall under the 1[st] category. In such cases no enquiry is necessary and they shall be disposed of by the Deputy Tahsildar of the Taluk._ _**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_ W.P.(C).Nos.11739 & 36011 of 2018 -7- _transfer ascertained by him as do not involve the formation of new sub-divisions and about which there is no dispute._ _**Rule 11:** All contested cases shall be enquired into and disposed of by the Tahsildar, following the procedure laid down in Note:- (ii) to Rule 10.”_ ## **Rule 27(i) of the Transfer of Registry Rules deals with case of succession by heirship, etc., and** ## **clause (i) of Rule 27 provides as follows:** _**“Rule 27: Transfer of title by succession.-**_ _Under this class of transfers, all cases of change of registry necessitated by the death or prolonged absence for more than seven years of the registered holder will be disposed of._ _**(i) Succession by heirship.-** In dealing with claims to succession by heirship, if the succession is not disputed, the Tahsildar may direct the transfer of registry either at once or after due enquiry. If the succession is disputed, he should hold a summary enquiry as to who has the right to succeed to the property of the deceased registered holder according to the principles of the law of succession which governs the case and give notice to all persons known or believed to be interested in the manner provided in Note (ii) to Rules 10 to the effect that the registry will be made in the name of the person found to be entitled, unless a declaration is filed, within three months from the date of the notice, by any person objecting to the registry, stating that he has instituted a suit in a Civil Court to establish his superior title and an authenticated copy of the plaint in the suit is produced. If no declaration is filed, the registry should be made as stated in the notice, at the expiration of three months. If a declaration is filed, the result of the suit should be awaited before taking further action. With regard to the entry of the names of the heirs in the case of undivided families, the name of the managing member or members should be registered. In other cases, the names of all the heirs entitled to shares in the property should be registered.”_ ## **5. This Court in the judgment in** _**Korah v.**_ _**Rachel Zachariah**_ **, reported in 2018 (1) KLT 315,** W.P.(C).Nos.11739 & 36011 of 2018 -8- ## **has held in para 8 thereof as follows:** _'8. Now, I shall deal with the question as to whether it was obligatory for the competent authority under the Rules to issue notice to the petitioner in a case of this nature before transfer of registry was effected in favour of respondents 7 and 8. Going by the scheme of the Rules, transfer of registry takes place either (1) by voluntary action of owners, (2) by decrees of civil courts or by revenue sales and (3) by succession. Rule 3 of the Rules dealing with the procedure to be followed by the competent authority for effecting transfer of registry provides that it shall be the duty of the Village Officer, whenever pattadar dies, to report the said fact to the Thahsildar with the names of the legal heirs so far as can be ascertained. Rule 9 provides that the cases received in the Taluk Office with the report of the Village Officer shall be classified and dealt with separately as, (a) uncontested cases, (b) contested cases and (c) cases involving sub-divisions. Rule 10 provides that uncontested cases may be of two kinds, viz, (1) those which can be disposed of without further enquiry and (2) those in which a decision cannot be taken without conducting a further enquiry by the Tahsildar. Note (ii) to Rule 10 clarifies that 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. The said Note also clarifies that though most of such cases are usually uncontested, notices should be issued to the parties interested, if any, in all such cases and such cases shall be disposed of on merits after giving the parties concerned an opportunity of being heard. Note (ii) to Rule 10 reads thus:_ _**“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_ W.P.(C).Nos.11739 & 36011 of 2018 -9- _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 subdivisions and about which there is no dispute.”_ _Sub-rule (2) of Rule 14 dealing with the general principles to be observed while disposing of transfer of registry cases, provides that when the transfer of registry is due to inheritance, a summary enquiry as to who is the nearest legal heir of the deceased pattadar according to the law of inheritance applicable to the parties concerned shall be made. The said sub-rule also provides that a notification to the proposed transfer of registry in the name of the legal heirs shall be published in the Village, Panchayat and Taluk offices, inviting objections, if any, within 15 days from the date of publication of the notice in such cases. Clause (i) of Rule 27 of the Rules dealing exclusively with the transfer of title by succession provides that if the succession is disputed, the Tahsildar should hold a summary enquiry as to who has the right to succeed to the property of the deceased registered holder according to the principles of the law of succession which governs the case and give notice to all persons known or believed to be interested in the manner provided in Note (ii) to Rule 10 to the effect that the registry will be made in the name of the persons found to be entitled, unless a declaration is filed within three months from the date of the notice, by any person objecting to the registry, stating that he has instituted a suit in a Civil Court to establish his superior title and an authenticated copy of the plaint in the suit is produced. The clause also provides that if a declaration is filed, the result of the suit should be awaited before taking further action. The aforesaid provisions in the Rules indicate beyond doubt that when transfer of registry is claimed on the basis of succession, it is obligatory on the part of the competent authority to conduct an inquiry as to the persons who are entitled to succeed to the property of the deceased registered holder according to the principles of the law of succession which governs the case. Going by the Rules, it is also obligatory for the competent authority in a case of that nature to issue notice to all such persons and conduct a summary inquiry as to the entitlement of the person claiming transfer of registry. The Rules also make it clear that if the persons to whom notices are issued prefer a suit and produce a copy of the plaint before the competent authority, the competent_ _authority shall await for the decision in the suit for effecting transfer of registry. In the circumstances, the contention of respondents 3 to 8 that transfer of registry can be effected by the_ W.P.(C).Nos.11739 & 36011 of 2018 -10- _competent authority under the Rules in the case of succession without notice to the persons who are entitled to succeed to the estate as per the law of succession applicable, cannot also be accepted. The question aforesaid is thus decided accordingly.'_ ## **6. Without getting into the merits of the** **controversy, this Court is of the considered opinion that the matter could be disposed of by directing the competent respondent-Tahsildar concerned in these cases to issue notices to all the legal heirs/legatees concerned and after conducting due enquiry and after granting a reasonable opportunity of being heard to such affected persons, may take a considered decision on the request for mutation in the light of the provisions contained in the Transfer of Registry Rules, more particularly, Rule 27(i) thereof and in the light of the dictum laid down by this Court in** _**Korah's**_ **case (supra). The Tahsildar will ensure that copies of the report of the enquiry that may be conducted in these cases should be made available to all the affected parties before he conduct the hearing so as to equip them to submit their versions on the findings in such** W.P.(C).Nos.11739 & 36011 of 2018 -11- **enquiry process, etc. Orders on the application for grant of mutation should be rendered by the respondent-Tahsildar, without much delay, preferably, within a period of 3 months from the date of production of a certified copy of this judgment.** **With these observations and directions, the above Writ Petitions (Civil) will stand finally disposed of.** **Sd/-** **ALEXANDER THOMAS,** **JUDGE.** Bkn/- W.P.(C).Nos.11739 & 36011 of 2018 -12- ## **APPENDIX OF WP(C) 11739/2018** ## **PETITIONER'S/S EXHIBITS:** **EXT.P1: TRUE COPY OF THE WILL BY WHICH THE 4TH RESPONDENT CLAIMS RIGHTS.** **EXT.P2: TRUE COPY OF THE PLAINT IN O.S.NO.24/2017. EXT.P3: TRUE COPY OF THE INJUNCTION PETITION FILED AS I.A.NO.700/2017.** **EXT.P4: TRUE COPY OF THE PLAINT IN O.S.NO.41/2017. EXT.P5: TRUE COPY OF THE OBJECTION OF THE PETITIONERS TO EXT.P3 INJUNCTION PETITION.** **EXT.P6: TRUE COPY OF THE NOTICE OF THE 2ND RESPONDENT DATED 14.03.2018.** **EXT.P7: TRUE COPY OF THE OBJECTION OF THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT.** **EXT.P8: TRUE COPY OF THE COMPLAINT OF THE 2ND PETITIONER DATED 27.03.2018.** **EXT.P9: TRUE COPY OF THE NOTICE OF THE 2ND RESPONDENT DATED 26.03.2018.** ## **APPENDIX OF WP(C) 36011/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTERED WILL NO. 13/2014 OF KILIKOLLOOR S.R.O.** **EXHIBIT P2 TRUE COPY OF DEATH CERTIFICATE DATED 19.2.2018. EXHIBIT P3 TRUE COPY OF THE COMPLAINT PREFERRED BEFORE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE COMPLAINT PREFERRED BEFORE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPORT OF THE VADAKEVILA VILLAGE OFFICER DATED 28.3.2018.**