Disposed

Gopalan Nair M.N. v. District Collector, Pathanamthitta

Kerala HC17 Oct 2019WP(C)/5013/2016

Case brief

AI extract

What is this about?

Petitioner filed Writ Petition seeking direction to mutate immovable property in his name obtained via court auction. Court held that under Section 89 of the Registration Act, 1908, the sale certificate must first be registered with the Registering Officer before mutation can be entertained. Petition dismissed leaving right to approach execution court.

What did the court decide?

Writ petition disposed by directing the petitioner to approach the execution court to comply with Section 89 of the Registration Act, 1908 before seeking mutation.

Gopalan Nair M.N. Vs District Collector, Pathanamthitta — Partition | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

¶4

THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941

¶5

WP(C).No.5013 OF 2016(B)

¶6

PETITIONER:

¶7

GOPALAN NAIR M.N. AGED 74 YEARS

¶8

S/O.NARAYANAN NAIR, RESIDING AT MUNDATHANATHU HOUSE, OTHERA SOUTH P.O, EAST OTHERAMURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.

¶9

BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA)

¶10

RESPONDENT/S:

¶11

1 DISTRICT COLLECTOR, PATHANAMTHITTA COLLECTORATE, PATHANAMTHITTA, PIN - 689 645.

¶12

2 TAHASILDAR THIRUVALLA TALUK, REVENUE TOWER, THIRUVALLA, PIN-689 546

¶13

3 VILLAGE OFFICER ERAVIPEROOR VILLAGE, THIRUVALLA, PIN - 689 546.

¶14

1. DISTRICT COLLECTOR, COLLECTRATE, KOTTAYAM.

¶15

2.TAHASILDAR, KOTTAYAM TALUK, KOTTAYAM 3.VILLAGE OFFICER, KOTTAYAM VILLAGE, KOTTAYAM.

¶16

ADDRESS OF THE RESPONDENTS 1 TO 3 ARE CORRECTED AS ABOVE AS PER THE ORDER DATED 11-03-2016 IN IA 3524/16.

¶17

4 ADDL R4, ANCY JOMON, KALLIDICKAL HOUSE, THAZAHTTAGDI, KOTTAYAM-686 005

¶18

5 ADDL R5 SHRON ANN JOM, KALLIDICKAL HOUSE, THAZAHTTAGDI, KOTTAYAM-686005

¶19

W.P(C) No.5013/16

¶20

¶21

6 ADDl R6, SHON JOMON, KALLIDICKAL HOUSE, THAZAHTTAGDI, KOTTAYAM, 686 005 IMPLEADED AS ADDL R4 TO R6 AS PER ORDER DATED 1206-2019 IN IA 1/2019.

¶22

R1-3 BY GOVERNMENT PLEADER SMT.VIDYA A.C.

¶23

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1610-2019, THE COURT ON 17-10-2019 DELIVERED THE FOLLOWING:

W.P(C) No.5013/16

JUDGMENT

The petitioner, who is stated to be a senior citizen, has approached this Court aggrieved by the refusal of the 3^rd respondent to consider an application for mutation submitted by him in respect of an item of immovable property that was obtained by him pursuant to a court auction conducted at the instance of the Sub Court, Kottayam. The facts stated in the Writ Petition would indicate that the petitioner had obtained a money decree in O.S.No.15 of 1997 of Sub Court, Thiruvalla against one E.P. Philip, Edavazhickal House, Puthanangadi, Kottayam District. The decree was subsequently transferred to the Sub Court, Kottayam for execution, and the property belonging to the judgment debtor was put up for sale through public auction. Pursuant to leave obtained from the Sub Court, the petitioner also participated in the auction and the sale was confirmed in favour of the petitioner. Consequently, a sale certificate was also issued to the petitioner on 19.02.2007.

¶28

It would appear that an attempt was made by the daughter of the judgment debtor to set aside the ex parte decree that led to the sale of the auctioned property. The said attempt, however, did not succeed and the I.A. filed on behalf of the said person was dismissed by the Sub Court, Thiruvalla and later the F.A.O. No.368/2012 filed before this Court was also dismissed by Ext.P2 judgment. It is the case of the petitioner that after the protracted legal proceedings, when the petitioner approached the 3^rd respondent with an application for mutating the property covered by Ext.P1 sale certificate,

¶29

W.P(C) No.5013/16

¶30

¶31

he was informed that the mutation sought for could not be granted since the same property had been sold through another auction on 27.01.2007. It is therefore that the petitioner has approached this Court through the present Writ Petition seeking a direction to the 3^rd respondent to mutate the property in his name.

¶32

A counter affidavit has been filed on behalf of the 2^nd respondent, wherein the sequence of events that led to the issuance of the sale certificate is narrated. It is thereafter stated that, prior to issuing the sale certificate in favour of the petitioner, the very same property was sold in public auction in revenue recovery proceedings for recovery of sales tax arrears. In that auction, the property was purchased by one Kalladickal Jomon on 27.01.2007. It is stated that it is on account of the dilemma faced by the revenue authorities that the request of the petitioner could not be acceded to.

¶33

I have heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. Although the legal heirs of Kalladickal Jomon, who was the purchaser of the property in the revenue recovery auction on 27.01.2007, have been impleaded as additional respondents 4 to 6 in the Writ Petition and notice served on them on 16.8.2019, there is no appearance for the said respondents in these proceedings.

¶34

On a consideration of the facts and circumstances of the case, however, I find that as per the provisions of Section 89 of the Registration Act, 1908, there is a procedure to be followed by every court granting a

¶35

W.P(C) No.5013/16

¶36

¶37

certificate of sale of immovable property, where the copy of such certificate has to be sent to the Registering Officer within the limits of whose jurisdiction the immovable property referred to in such certificate is situated and such officer has to file a copy of the certificate in Book No.1. A similar procedure has also to be followed by every revenue officer, who grants a certificate of sale to the purchaser of immovable property sold by public auction. In the instant case, I do not see such a procedure having been followed, either in respect of the sale certificate issued to the petitioner by the civil court or in respect of the sale certificate, if any, granted to Kalladickal Jomon by the revenue officer. In my view, before an application for mutation of the property can be considered, it would be incumbent upon the person obtaining the sale certificate to get the same registered with the Registering Officer, in terms of Section 89 of the Registration Act. The mutation of the property can only be done thereafter, on production of evidence, to show that the sale certificate in respect of the said property has been registered in terms of Section 89 of the Registration Act.

¶38

I, therefore, dispose the Writ Petition leaving open the right of the petitioner to approach the execution court for the purposes of that court complying with the procedure stipulated in Section 89 of the Registration Act in relation to the property covered by the sale certificate issued to the petitioner. I make it clear that in the event of the procedure contemplated under Section 89 of the Registration Act being complied with in respect of the property covered by Ext.P1 sale certificate, the petitioner can approach the 2^nd respondent for mutation of the property in his name, and in that event the 2^nd respondent shall mutate the property in the name of the

¶39

W.P(C) No.5013/16

¶40

¶41

petitioner based on the compliance noticed with the procedure under Section 89 of the Registration Act.

¶42

Sd/-

¶43

A.K.JAYASANKARAN NAMBIAR

¶44

JUDGE

¶45

okb

¶46

//True copy// P.S. to Judge

W.P(C) No.5013/16

APPENDIX

PETITIONER'S/S EXHIBITS:

¶51

EXHIBIT P1 P1 - COPY OF SALE CRTIFICATE ISSUED BY THE SUB COURT, KOTTAYAM IN FAVOUR OF PETITIONER DATED 19.2.2007 EXHIBIT P2 P2 - COPY OF JUDGMENT IN FAO NO.368/12 DATED 15.3.2013 OF THE HIGH COURT. EXHIBIT P3 P3 - COPY OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE 3RD DATED 27.10.2015 EXHIBIT P4 P4 - COPY OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE 2ND AND 3RD DATED 01.02.2016

Gopalan Nair M.N. v. District Collector, Pathanamthitta

Case brief

What is this about?

What did the court decide?

Gopalan Nair M.N. v. District Collector, Pathanamthitta

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S. Dlf Southern Towns Private Limited Vs the State Tax Officer(Investigation Branch)

Dlf Home Developers Limited Vs the State Tax Officer(Investigation Branch)

M/S.Dlf Southern Town Private Limited NO.10/77, Vs State of Kerala

Silver Star Seafoods Ltd., Vs the Senior Intelligence Officer

M/S.Dlf Projects Ltd., Vs State Tax Officer (Investigation Branch)

Skymark Builders Vs the Assistant Commissioner(Audit)