Allowed

Shri Ashok Subbaiah @ Subbaiah Pullera v. Deputy Commissioner

Karnataka HC16 Jun 2022WP/10263/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging orders rejecting mutation and khatha transfer claims based on a disputed Will. The court held that revenue authorities lack jurisdiction to adjudicate Will validity and directed the restoration of previous khatha records pending the outcome of related civil litigation.

What did the court decide?

The impugned orders transferring khatha based on a Will in dispute are quashed, and the previous khatha entries are to be restored pending the outcome of related civil proceedings.

Shri Ashok Subbaiah @ Subbaiah Pullera Vs Deputy… — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE R. NATARAJ

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WRIT PETITION NO.10263/2021 (LB-RES)

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BETWEEN:

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SHRI ASHOK SUBBAIAH @ SUBBAIAH PULLERA, S/O LATE P.N.APPANNA, AGED ABOUT 60 YEARS, "ANUGRAHA", MANGALADEVI NAGAR, MADIKERI, KODAGU DISTRICT, PIN-571201.

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…PETITIONER

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(BY SRI. G.RAVISHANKAR SHASTRY, ADVOCATE)

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AND:

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DEPUTY COMMISSIONER KODAGU DISTRICT MADIKERI, KODAGU, PIN-571201.

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CITY MUNICIPALITY MADIKERI, REPRESENTED BY ITS COMMISSIONER PIN-571201.

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SMT. ANITHA THAVI W/O M.S.THAVI MADAPPA AGED ABOUT 54 YEARS, R/AT PAALIBETTA, VIRAJPETE TALUK, KODAGU DISTRICT, PIN-571218.

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…RESPONDENTS

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(BY SMT. PRATHIMA HONNAPURA, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.1;

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SMT. K.S.ANASUYADEVI, ADVOCATE FOR RESPONDENT NO.2; SRI. K.G.AIYAPPA, ADVOCATE FOR RESPONDENT NO.3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 30.10.2019 IN No.MUNICI/92/2013-14 PASSED BY THE DEPUTY COMMISSIONER, KODAGU DISTRICT, MADIKERI CERTIFIED COPY OF WHICH IS PRODUCED AT ANNEXURE-A.

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THIS PETITION COMING ON FOR PRILIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has challenged an order dated 30.10.2019 passed by the respondent No.1 under Section 306 of the Karnataka Municipalities Act, 1964 (henceforth referred to as "Act of 1964" for short) rejecting the petition filed by him challenging the mutation proceedings initiated by the respondent No.2 concerning the property bearing Sy.No.47/17 lying in Block No.16 of Madikeri Town (henceforth referred to as "subject property" for short). The petitioner has also sought for quashing the order dated 25.09.2013 passed by the respondent No.2 transferring the khatha of the subject property to the name of the respondent No.3 herein.

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The petitioner claims that the subject property

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belonged to his family. The respondent No.3 initiated proceedings before the respondent No.2 to enter her name after the death of the father of the petitioner. The respondent No.2, without issuing notice to the petitioner, passed an order directing the name of respondent No.3 to be entered in the property register of the Municipal Council, which was based on a Will propounded by the respondent No.3. The respondent No.3 claimed that the subject property belonged to Pullera Appanna and the petitioner, respondent No.3 were his children. The said Pullera Appanna died on 23.06.2013. The respondent No.3 claimed that Pullera Appanna had executed a Will bequeathing the subject property in her favour. The respondent No.2 had transferred the name of the respondent No.3 in the assessment register of the subject property.

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Being aggrieved by the aforesaid, the

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petitioner filed an appeal before the respondent No.1

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under Section 306 of the Act of 1964 contending that he was the son of Pullera Appanna and therefore, after the death of his father, the name of the petitioner must have been entered. He also contended that the respondent No.1 without considering the contentions urged by the petitioner had dismissed the appeal directing the petitioner to approach the Civil Court.

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The learned counsel for the petitioner submitted that the respondent Nos.1 and 2 had no authority in law to register the name of the respondent No.3 in the property register based on a Will. He contended that the respondent Nos.1 and 2 ought to have directed the respondent No.3 to obtain appropriate declaration from the Civil Court. The learned counsel relied upon the judgment of the Full Bench of this Court in C.N.Nagendra Singh vs. The Special Deputy Commissioner, Bangalore District and others [2002 (6) KLJ 391].

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The learned counsel for the respondent No.3,

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on the other hand, submitted that the petitioner did not dispute the relationship of the respondent No.3 with Pullera Appanna. He further contended that the Will in question executed by Pullera Appanna was registered in accordance with law and therefore, the respondent No.2 was justified in entering the name of the respondent No.3 in the assessment register of the subject property. In this regard, the learned counsel for the respondent No.3 relied upon an order of a Co-ordinate Bench of this Court in

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P.K.Vasudevan vs. Deputy Commissioner of Kodagu

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District, Madikeri and others, [2002 (4) KCCR 2285] .

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He further submitted that the executor of the Will filed a petition under Section 276 of the Indian Succession Act, 1925 in P & S.C. No.13/2018 before the Principal District and Sessions Judge, Kodagu at Madikeri, where the petitioner herein was arrayed as a party. The said proceeding was treated as a dispute and registered as O.S.No.1/2019 and therefore, the khatha entries need not be disturbed until the disposal of O.S.No.1/2019.

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I have considered the submissions made by

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the learned counsel for the parties.

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Section 111 of the Act of 1964 reads as

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follows:

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" 111. Notice to be given to municipal council of all transfers of title by persons primarily liable to payment of property tax .— (1) Whenever the title of any person primarily liable for the payment of a tax imposed on any premises in the form of a rate on buildings, or vacant land or both, is transferred, the person whose title is transferred and the person to whom the same is transferred shall, within three months after the execution of the instrument of transfer or after registration if it be registered or after transfer is effected, if no instrument is executed, give notice of such transfer in writing to the Municipal Commissioner or the Chief Officer.

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(2) In the event of the death of any person primarily liable as aforesaid, the person on whom the title of the deceased devolves, shall give notice of such devolution to the Municipal Commissioner or the Chief Officer within six months from the date of death of the deceased."

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Section 113 of the Act of 1964 reads as

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follows:

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" 113. Name of transferee to be entered

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in property tax register.- Whenever such transfer comes to the knowledge of the Municipal Commissioner or Chief Officer through such notice the name of the transferee shall be entered in the property tax register."

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9. The petitioner and the respondent No.3 are the

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children of Pullera Appanna, who died on 23.06.2013. It is not in dispute that the name of Sri. Pullera Appanna was entered in the property register of the subject property. When the respondent No.3 made a claim for transfer of her name in the property register extract based on a Will allegedly executed by Pullera Appanna, the respondent No.2 must have notified the petitioner as provided under

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Section 112 of the Act of 1964. A Will is not a transfer inter-vivos and therefore, the respondent No.2 could not have arrogated to himself the authority to adjudicate upon the due execution of the Will. Instead, he must have directed the respondent No.3 to obtain appropriate

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declaration from the competent Court that the Will was validly executed by Pullera Appanna. The Full Bench of this Court in the case of C.N. Nagendra Singh, (supra), had considered the said question and had held that the Revenue Authorities have no jurisdiction to decide upon the validity of the Will.

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Since it is stated that the petitioner and the respondent No.3 are already litigating before the Civil Court in O.S.No.1/2019, which is pending before the I Additional District and Sessions Judge, Kodagu at Madikeri, it is appropriate that the khatha entries that stood immediately prior to the order passed by the respondent No.2 is restored. The respondent No.2, may, after the disposal of O.S.No.1/2019, take further steps to enter the name of the person who succeeds in O.S.No.1/2019.

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In that view of the matter, this writ petition is allowed. The khatha effected in the name of respondent No.3 herein by the respondent No.2 in respect of the subject property is ordered to be struck-off. It is ordered

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that the respondent No.2 shall forthwith restore the khatha of the subject property, in the name of the person, as it stood prior to entering the name of respondent No.3. The respondent No.2 shall take steps to enter the name of the person who succeeds in O.S.No.1/2019, which is pending consideration before the I Additional District and Sessions Judge, Kodagu at Madikeri.

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Sd/JUDGE

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PMR

Shri Ashok Subbaiah @ Subbaiah Pullera v. Deputy Commissioner

Case brief

What is this about?

What did the court decide?

Shri Ashok Subbaiah @ Subbaiah Pullera v. Deputy Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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