Kerala High Court
Salim vs State Of Kerala on 8 April, 2021
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(C).No.36364 OF 2018(U)
PETITIONER/S:
1 SALIM, AGED 62 YEARS
S/O HANEEFA, "SUNITHAS", PIRAVILAKAM DESOM,
VIZHINJAM VILLAGE, NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM-695521.
2 SUNITHA SALIM, AGED 51 YEARS
W/O.SALIM, "SUNITHAS", PIRAVILAKAM DESOM,
0VIZHINJAM VILLAGE, NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM - 695 521.
BY ADV. SRI.GEORGE MECHERIL
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR
THIRUVANANTHAPURAM, PIN - 695 043.
3 THE SUB COLLECTOR
KUDAPPANAKKUNNU,
THIRUVANANTHAPURAM - 695 043.
4 THE ADDITIONAL TAHSILDAR
NEYYATTINKARA,
THIRUANANTHAPURAM DISTRICT - 695 521.
5 THE VILLAGE OFFICER
VIZHINHAM,
THIRUVANANTHAPURAM DISTRICT - 695 521.
6 NOOHUKHAN, S/O.KHADERKANNU VAIDYAR,
MOUSAM, K.S.ROAD, KOVALAM P.O.,
THIRUVANANTHAPURAM - 695 520.
7 UMMA SALUMA ALIAS SALEEMA
D/O.FATHIMA BEEVI, T.C.NO.49/61,
KARUKAYIL VEEDU, MANACAUD P.O.,
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THIRUVANANTHAPURAM NOW RESIDING AT DR.SABNA KHAN,
THEKKEKKARA EDAVAZHI, BALARAMAPURAM - 695 519.
8 THE STATION HOUSE OFFICER
VIZHINJAM, THIRUVANANTHAPURAM DISTRICT - 695 521.
R6 BY ADV. SMT.INDULEKHA JOSEPH
R6 BY ADV. SRI.NEERAJ NARAYAN
R6 BY ADV. SRI.S.VINOD BHAT
R6 BY ADV. SHRI.SARATH SUKUMARAN
R7 BY ADV. SRI.K.SHAJ
R7 BY ADV. SRI.ARUN CHAND
OTHER PRESENT:
R1 TO 5 AND R8 BY SRI. K.J.MUHAMMED ANZAR, SPL.GP
(FOR REVENUE)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-
03-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
WP(C).No.36364 OF 2018(U) ..3..
JUDGMENT
Dated this the 8th day of April 2021 The 7th respondent Smt.Umma Saluma alias Saleema, who was formerly married to Sri. Noohukhan, the 6th respondent, executed Ext.P1 sale deed in favour of the 1st petitioner Sri. Salim, who is her brother and Ext.P2 sale deed in favour of the 2 nd petitioner Smt. Sunitha Salim, the wife of the 1 st petitioner. Exts. P1 and P2 sale deeds were executed on 14.09.2015. After the execution of the sale deeds, the petitioners applied for transfer of registry of the properties in the revenue records. The applications were registered by the Village Officer as P.V. No.747/15 and P.V. No.748/15. The application, P.V. No.747/2015 in respect of Ext. P1 sale deed was allowed and mutation was effected and separate thandaper was WP(C).No.36364 OF 2018(U) ..4..
registered in favour of 1st petitioner. While the application for mutation, P.V. No.748/2015 in respect of Ext. P2 sale deed was under process, Sri. Noohukhan, the former husband of Smt.Umma Saluma filed objection before the Village Officer and the Tahsildar claiming right over the properties covered by Exts. P1 and P2 sale deeds.
2. In the meantime, Sri. Noohukhan approached the Family Court, Thiruvananthapuram by filing an original petition for settlement of the matrimonial dispute between him and Smt.Umma Saluma. Apart from Smt.Umma Saluma, the writ petitioners are respondents 2 and 3 respectively in the said original petition. The Family Court by order dated 26.11.2015 passed an interim order of injunction, restraining Smt.Umma Saluma and the writ petitioners from creating and registering documents or from creating WP(C).No.36364 OF 2018(U) ..5..
encumbrance with respect to the petition schedule properties, which also include the properties covered by Exts.P1 and P2 title deeds. The order of the Family Court is extracted herein below:-
"Upon motion made into this Court by petitioner and upon reading the petition of the said petitioner in this matter filed on 25.11.2015 and upon hearing the evidence of the petitioner this court doth order that an ad-interim injunction restraining the respondents from creating and registering documents or from creating encumbrance with respect to the petition schedule properties till 23.12.2015.
The said order of injunction passed by the Family Court on 26.11.2015 was later extended until further orders on 23.12.2015 and is still in force.
3. Since the Tahsildar did not take any action on the application filed by the petitioners for mutation, the petitioners approached this Court by filing W.P.(C) WP(C).No.36364 OF 2018(U) ..6..
No.29325/2016 seeking direction to the Tahsildar to take decision on the application for transfer of registry expeditiously. By Ext.P5 judgment, this Court disposed of the said writ petition with direction to the Additional Tahsildar, Neyyattinkara to take a decision on the application for Transfer of Registry within two months after hearing the writ petitioners, Sri. Noohukhan and Smt.Umma Saluma. Pursuant thereto, the Additional Tahsildar, Neyyattinkara, passed Ext.P6 order dated 30.01.2017, allowing P.V. No.748/2015 and directing the village officer to effect mutation of the property covered by Ext.P2 sale deed in favour of the 2nd petitioner. On transfer of registry, the petitioners also paid land tax for the said properties for the period 2017-18.
4. Aggrieved by Ext.P6 order of the Additional Tahsildar effecting mutation, Sri. Noohukhan filed an WP(C).No.36364 OF 2018(U) ..7..
appeal before the Revenue Divisional Officer under Rule 18(i) of the Transfer of Registry Rules, 1966 (hereinafter referred to as 'the Rules'). The Sub Collector, Thiruvananthapuram by Ext.P10 order dated 06.06.2017, allowed the said appeal and directed cancellation of mutation effected in respect of properties covered by Exts.P1 and P2 sale deeds. The appeal was allowed taking into account the pendency of civil dispute over the properties and the interim order of injunction of the Family Court, Thiruvananthapuram in O.P. No. 1935/2015.
5. Aggrieved by Ext.P10 order of the Sub Collector, the petitioners preferred revision before the District Collector and a further revision before the Government invoking Rule 20(iii) of the Rules, and those revision petitions were dismissed by the District Collector and the Government by Ext. P11 and WP(C).No.36364 OF 2018(U) ..8..
Ext.P12 orders respectively taking note of the pendency of civil dispute over the properties and the interim order of injunction of the Family Court.
6. According to the petitioners, during the pendency of the revision petition before the Government, the Village Officer accepted land tax from Smt.Umma Saluma on 30.08.2018 for the period 2017-18 and 2018-19 at the instance of Sri. Noohukhan as evidenced from Ext.P13 receipt. According to the petitioners, the land tax was paid by playing fraud on the Village Officer by Sri. Noohukhan and the petitioners filed Ext.P14 complaint before the Circle Inspector of Police, Vizhinjam Police Station.
7. The petitioners contend that, so long as Exts.P1 and P2 valid sale deeds stand in the name of the petitioners, the revenue authorities are bound to WP(C).No.36364 OF 2018(U) ..9..
mutate the properties under the provisions of the Rules and are bound to accept the land tax. The petitioners further contend that the Family Court, by Ext.P3 order only injuncted the writ petitioners and Smt.Umma Saluma from creating and registering documents or from creating encumbrance with respect to the plaint schedule properties therein, and the said order is not applicable to properties covered by Exts.P1 and P2 sale deeds, as the same were executed prior to Ext.P3 order of the Family Court. According to the petitioners, Ext.P3 order of the Family Court cannot stand in the way of the revenue authorities from effecting mutation as per the Rules. The petitioners further contend that pendency of civil case cannot be a bar to effect mutation and to accept land tax.
WP(C).No.36364 OF 2018(U) ..10..
8. Sri. Noohukhan, the 6th respondent has filed a counter affidavit resisting the averments in the writ petition and stating that Exts.P1 and P2 sale deeds executed by Smt.Umma Saluma in favor of the petitioners are sham and void. According to Sri. Noohukhan, the relationship between him and Smt.Umma Saluma became strained and at the instance of the jama-ath and other family members, Ext.R6(a) and Ext.R6(b) settlement/agreement dated 14.07.2014 and 21.09.2014 were entered into between them and Sri. Noohukhan divorced Smt.Umma Saluma by articulating 'Talaq' thrice before the relatives of Smt.Umma Saluma and the office bearers of Vizhinjam Vadakke Bhagam Muslim Jama-Ath. It is the case of Sri. Noohukhan that Exts.P1 and P2 sale deeds executed in favour of the writ petitioners by Smt.Umma Saluma are vitiated by fraud and malice WP(C).No.36364 OF 2018(U) ..11..
and accordingly, he approached the Family Court seeking specific performance of the aforesaid agreements and in the alternative to declare his title and possession over the properties along with a prayer to set aside Exts.P1 and P2 sale deeds. According to Sri. Noohukhan, mutation cannot be effected, since both Exts.P1 and P2 sale deeds are challenged before the Family Court and in the light of the interim order passed by the Family Court, Exts.P10, P11 and P12 orders are legally sustainable.
9. Smt.Umma Saluma has filed a counter affidavit stating that she has executed Exts.P1 and P2 sale deeds on 14.09.2015 and she has absolute ownership and right over the said property. According to Smt.Umma Saluma, it is after execution of Exts.P1 and P2 sale deeds, Sri. Noohukhan has approached the Family Court and obtained Ext.P3 order of injunction.
WP(C).No.36364 OF 2018(U) ..12..
It is her case that Sri. Noohukhan has approached the Family Court only as a counter blast to the proceedings initiated by her under Section 3(d) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. She has also stated that she was not aware of the land tax remitted in her name vide Ext. P13 receipt.
10. Heard Sri.George Mecheril, the learned counsel for the petitioners, Sri.S.Vinod Bhatt, the learned counsel appearing for the 6 th respondent and Sri.K.Shaj, learned counsel appearing for the 7 th respondent and the learned Government Pleader appearing for respondents 1 to 5.
11. Sri.George Mecheril, the learned counsel for the petitioners submitted that Exts.P1 and P2 sale deeds have been executed by Smt.Umma Saluma in WP(C).No.36364 OF 2018(U) ..13..
favour of the petitioners prior to Ext.P3 order of the Family Court and in view of Exts.P1 and P2 sale deeds, the revenue authorities are bound to effect mutation of the properties and to receive land tax from the petitioners and the pendency of the civil case or Ext. P3 order cannot stand in the way of the registry in effecting mutation and receiving the land tax. The counsel for the petitioners relied on the decision of the Hon'ble Supreme Court in Smt.Sawarni v. Smt.Inder Kaur and Others [(1996) 6 SCC 223], the decisions of this Court in Sudan v. State of Kerala [2013 (4) KLT 563], Nevin Raju v. Basheer [2015 (3) KLT SN 4], and Vijayalakshmi v. Tahsildar [2019(2) KLT 373].
12. The learned Government Pleader as well as the learned counsel for respondents 6 and 7 submitted that in view of the civil dispute pending between the WP(C).No.36364 OF 2018(U) ..14..
parties and Ext.P3 order of the Family Court, the revenue authorities cannot effect mutation or accept land tax. The Counsel for the 6 th respondent, Sri.Vinod Bhatt contended that Ext.P3 order of the Family Court, which is still in force is a specific direction, restraining the respondents 4 and 5, the revenue officials from effecting transfer of registry. Sri.Vinod Bhat also relied on the Division Bench decision of this Court in Abdul Majeed v. Shareefa [2014(4) KLT 265].
13. In this context, it will be apposite to consider the dictum laid in the judgments cited by both sides.
14. In Smt.Sawarni's case (supra), the Apex Court held that mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title and that it only enables the person in whose favour mutation is ordered to pay WP(C).No.36364 OF 2018(U) ..15..
the land revenue in question.
15. In Nevin Raju's case (supra), referring to Rules 3 and 10 of the Rules, this Court held that under the provisions contained in the Land Tax Act, a holder of land is to pay tax and payment of land tax or mutation will not enable the said person to claim any better title and it will not in any way affect the adjudication of the disputes between the parties in the pending civil cases.
16. In Sudan's case (supra), this Court held that pendency of civil suit can never be a bar with regard to the acceptance of land tax, unless specifically restrained from accepting the tax by virtue of any order passed by the Court.
17. Relying on the decision of Apex Court in Smt.Sawarni's case, this Court in Vijayalakshmi's WP(C).No.36364 OF 2018(U) ..16..
case (supra), held that Tahsildar as the authority concerned with grant of mutation and Transfer of Registry, has no power to examine any vexed issues of title and where the registered land holder concerned has transferred the property, then the transferees/assignees will stand in the shoe of the land holder and by the cumulative impact of Sec.5(2) and Sec. 3(3) (d) of the Kerala Land Tax Act, 1961, the competent revenue officials are under the bounden and statutory obligation to accept basic land tax from them, or else, it will amount to abdication of statutory obligations and duties of such competent revenue officials.
18. In Abdul Majeed's case (supra), the Division Bench of this Court observed that revenue records assume much importance in the matter of sale of immovable properties or mortgage of immovable WP(C).No.36364 OF 2018(U) ..17..
properties as prospective buyers or financial institutions would not search and find out civil court decree, but they will look into only revenue records, documents of title, encumbrance certificate etc and any change made in the revenue records when civil suit is pending in respect of that property, and that too, without hearing the affected parties, would cause much prejudice to the rightful owners of immovable properties. The Division Bench further observed that it is not a solace to them that finally, the civil court will pass a decree in their favour and thereafter, entries in the revenue records would be corrected, as, by that time, several change of hands would take place in respect of the properties.
19. It is trite law that mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title and that it WP(C).No.36364 OF 2018(U) ..18..
only enables the person in whose favour mutation is ordered to pay the land revenue in question. Revenue record is not a document of title and the decision of the civil court would be final and conclusive. It is also trite that, pendency of civil suit cannot be a bar for acceptance of land tax, unless specifically restrained in that regard by the Court. The decision in Abdul Majeed's case (supra), is rendered in a different context, where, the Court was mainly dealing with allegations relating to grabbing of properties in collusion with revenue officials and also the power of the Commissioner for Land Revenue to issue direction to cancel Thandaper. Going by Ext.P3 order of the Family Court, there is no order restraining the revenue authorities from effecting transfer of registry or in accepting land tax. Ext.P3 order only restrains transfer of property and not transfer of registry. Since there is WP(C).No.36364 OF 2018(U) ..19..
no order specifically restraining the revenue officials from effecting mutation or accepting the land tax, the pendency of the civil case before the Family Court cannot be a bar for effecting mutation or accepting land tax. The revenue authorities have a statutory duty under the Kerala Land Tax Act and the Transfer of Registry Rules to effect mutation and accept land tax in respect of properties covered by Exts.P1 and P2 sale deeds. Therefore, I set aside Exts.P10, P11 and P12 orders and direct the 4th respondent to make necessary changes in the revenue records within a period of six weeks from the date of receipt of a certified copy of the judgment.
20. It is made clear that the transfer of registry or acceptance of land tax and any change made in revenue records shall not, in any manner, affect the civil rights of the parties or the adjudication of the civil WP(C).No.36364 OF 2018(U) ..20..
case pending before the Family Court between the parties.
The writ petition is allowed to the above extent.
Sd/-
MURALI PURUSHOTHAMAN,
JUDGE
SB
WP(C).No.36364 OF 2018(U) ..21..
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1658 DATED
14/09/2015.
EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.1659 DATED
14/09/2015.
EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER DATED
26/11/2015 IN I.A.NO.2859/2015 IN
O.P.NO.1935/2015 OF THE FAMILY COURT, THIRUVANANTHAPURAM.
EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER DATED
23/12/2015 IN I.A.NO.2859/2015 IN
O.P.NO.1935/2015 OF THE FAMILY COURT, THIRUVANANTHAPURAM.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 20/10/2016 IN W.P.(C) NO.29235/2016.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 30/1/2017 OF THE ADDITIONAL TAHSILDAR, NEYYATTINKARA. EXHIBIT P7 A TRUE COPY OF THE LAND TAX RECEIPT DATED 7/4/2017 ISSUED IN FAVOUR OF THE FIRST PETITIONER.
EXHIBIT P8 TRUE COPY OF THE LAND TAX RECEIPT DT.7/4/2017 ISSUED IN FAVOUR OF THE 2ND PETITIONER FOR THE YEAR 2017-18.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.3960/17 OF THIS HON'BLE COURT.
EXHIBIT P10 TRUE COPY OF THE ORDER DATED 6/6/2017 OF THE 3RD RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE ORDER NO.B.18-5608/2017 DATED 24/10/2017 OF THE 2ND RESPONDENT. EXHIBIT P12 TRUE COPY OF THE GOVT. ORDER G.O.(RT) NO.4256/2018/REV. DATED 12/10/2018.
WP(C).No.36364 OF 2018(U) ..22..
EXHIBIT P13 A TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER ON 30/8/2018 IN FAVOUR OF THE 7TH RESPONDENT.
EXHIBIT P14 A TRUE COPY OF THE POLICE COMPLAINT FILED BY THE PETITIONERS BEFORE THE CIRCLE INSPECTOR OF POLICE, VIZHINJAM WITH ACKNOWLEDGMENT RECEIPT DATED 18/10/2018. EXHIBIT R6(A) THE TRUE COPY OF THE SETTLEMENT AGREEMENT DATED 14.07.2014 EXHIBIT R6(B) THE TRUE COPY OF THE SETTLEMENT AGREEMENT DATED 21.09.2014 EXHIBIT R6(C) THE TRUE COPY OF THE SETTLEMENT AGREEMENT DATED 30.05.2015 EXHIBIT R6(D) THE TRUE COPY OF THE O.P.NO.1935 OF 2015 ON THE FILES OF THE FAMILY COURT, TIRUVANANTHAPURAM EXHIBIT R6(E) THE TRUE COPY OF THE PLAINT IN O.S.NO.458 OF 2017 ON THE FILES OF THE MUNSIFF COURT, NEYYATTINKARA EXHIBIT R6(F) THE TRUE COPY OF THE COMMISSION REPORT AND PLAN IN O.S.NO.458 OF 2017 ON THE FILES OF THE MUNSIFF COURT,NEYYATTINKARA EXHIBIT R6(G) THE TRUE COPY OF THE STATUTORY APPEAL FILED BEFORE THE SUB COLLECTOR / REVENUE DIVISIONAL OFFICER, THIRUANANTHAPURAM //true copy // P.A To Judge