Allowed

Kuriakose v. the District Collector

Kerala HC3 Aug 2021WP(C)/3341/2021

Case brief

AI extract

What is this about?

The High Court directed the Village Officer to effect mutation and accept basic tax in accordance with a partition deed. The court held that mutation does not create title and the officer cannot re-enquire into the settlor's motives for excluding heirs.

What did the court decide?

Direction to the 2nd respondent to consider the application, effectuate mutation of the property allotted to the petitioners per the partition deed, and accept basic tax within one month.

Kuriakose Vs the District Collector — Pension and Retirement Benefits | Kerala HC (2021)

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WP(C) NO. 3341 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 3^RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943

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WP(C) NO. 3341 OF 2021

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PETITIONER/S:

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1 KURIAKOSE, AGED 81 YEARS S/O. ITHAPPIRI, RESIDING AT EDAPPATTUKARA, SOUTH MARADY, MUVATTUPUZHA, ERNAKULAM-686673.

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2 YOHANNAN A.E. AGED 80 YEARS S/O. ITHAPPIRI, RESIDING AT EDAPPATTUKARA, SOUTH MARADY, MUVATTUPUZHA, ERNAKULAM-686673.

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3 THOMAS A.E. AGED 75 YEARS S/O. ITHAPPIRI, RESIDING AT EDAPPATTUKARA, SOUTH MARADY, MUVATTUPUZHA, ERNAKULAM-686673.

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4 PHILIP A.E. AGED 66 YEARS S/O. ITHAPPIRI, RESIDING AT EDAPPATTUKARA, SOUTH MARADY, MUVATTUPUZHA, ERNAKULAM-686673.

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BY ADVS. V.V.SURENDRAN SRI.P.A.HARISH SMT.SANIKA.V.S. SMT.DONA PAUL

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RESPONDENT/S:

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1 THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM-682030.

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WP(C) NO. 3341 OF 2021 2

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2 THE VILLAGE OFFICER, MARADY VILLAGE, MUVATTUPUZHA, ERNAKULAM-686661.

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SMT K AMMINIKUTTY SR GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 3341 OF 2021 3

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JUDGMENT

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The petitioners are brothers. They are the sons of late Ithappiri. They have approached this Court being aggrieved by the refusal on the part of the 2nd respondent in refusing mutation over an item of property allotted to their share as per Ext.P1 Partition Deed and in accepting basic tax.

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From the records, it appears that the petitioners herein along with late Ithappiri executed Ext.P1 Partition Deed on 15.10.1992. The properties were divided into four schedules viz., A to D, and the same was allotted equally to each of the petitioners. Late Ithappiri reserved the right of residence for himself and his wife. The petitioners contend that they are in absolute ownership and possession of their respective shares.

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While so, the petitioners are stated to have filed Ext.P2 application before the 2nd respondent requesting him to effect mutation and accept basic tax. Though the application was filed as early as on 26.8.2020, no action was taken by the 2nd respondent. Later, on enquiry, they were told that late Ithappiri had daughters, and the application filed by the petitioners without joining them could not be entertained. Being aggrieved, the petitioners are before this Court seeking the following reliefs:

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“i) Issue an appropriate writ or order declaring that the 2nd

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WP(C) NO. 3341 OF 2021

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respondent has no power to refuse mutation and receive tax if documents showing title over the property is produced before it.

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ii) Issue a writ of mandamus or any other appropriate writ order or direction directing the 2nd respondent to effect mutation of the property allotted to the share of the petitioners with respect to the property allotted to them as per Ext.P1 partition deed and to accept basic tax in respect to the property covered in Ext.P1 document of Marady Village.”

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In the statement filed by the 2nd respondent it is stated that the daughters of late Ithappiri, being his legal heirs, were excluded while executing the Partition Deed. In the said circumstances, they were directed to produce documents including the daughters.

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Sri. Harish P.A., the learned counsel appearing for the petitioners submitted that Ext.P1 Deed was executed by their father and for reasons best known to him, the daughters were not included. The said fact has not been challenged by the daughters even though almost three decades have elapsed. According to the learned counsel, acceptance of tax is purely for fiscal purposes and the 2nd respondent has no authority under law to refuse the request made by the petitioners in Ext.P2 application on the ground that daughters were excluded by their father.

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I have heard Smt. Amminikutty, the learned Government Pleader and have gone through the records.

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WP(C) NO. 3341 OF 2021 5

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Admittedly, Ext.P1 was executed by late Ithappiri, the father of the petitioners, in the year 1992 and the settlers are the petitioners herein. It is by now settled that mutation of entries in the revenue records by itself does not create any right, title or interest in the property (See Balwant Singh and Another v. Daulat Singh (Dead by Lr.s and Others [1997 (7) SCC 137], Sivasankaran K. V. Tahsildar, Manjeri and Ors. [2017 (3) KHC 855]). The respondents ought to have proceeded on the basis of the application filed by the petitioners and he could not have conducted a roving enquiry as to what persuaded Late Ithappiri to exclude his daughters. Furthermore, right, title or interest can be decided, in case of a dispute, only by a civil court.

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In view of the above discussion, there will be a direction to the 2nd respondent to consider Ext.P2 application and effect mutation of the property covered under Ext.P1 as allotted to the respective petitioners and accept basic tax from them on usual terms. The needful shall be done expeditiously, in any event, within a period of one month from the date of receipt of a copy of this judgment.

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This writ petition is disposed of.

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SD/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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WP(C) NO. 3341 OF 2021 6

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APPENDIX OF WP(C) 3341/2021

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PETITIONER(S) EXHIBITS

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EXHIBIT P1 A TRUE COPY OF PARTITION DEED DATED 15/10/1992 OF MUVATTUPUZHA SUB REGISTRY. EXHIBIT P2 A TRUE COPY OF THE APPLICATION FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 26/08/2020.

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RESPONDENT(S) EXHIBITS : NIL

Kuriakose v. the District Collector

Case brief

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Kuriakose v. the District Collector

Case brief

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