Smt Muniyamma vs Joint Commissioner , Yelahanka ... on 23 November, 2012

[Cites 5, Cited by 1]

Karnataka High Court

Smt Muniyamma vs Joint Commissioner , Yelahanka ... on 23 November, 2012

Bench: S. Abdul Nazeer

                             1


     THE HIGH COURT OF KARNATAKA AT BANGALORE

      DATED THIS THE 23RD DAY OF NOVEMBER 2012

                          BEFORE

      THE HON'BLE MR. JUSTICE S. ABDUL NAZEER

              WRIT PETITION Nos.27346/2010
              AND 27877-878/2010 (LB-BMP)

BETWEEN :

Smt. Muniyamma
W/o. late M. Muniyappa
Aged about 79 years
R/o. Melur Village
Jangamakote Hobli
Sidlaghatta Taluk
Chikkaballapur District                ... PETITIONER

(By Sri. Shyam Koundinya A.S., Adv.)


AND :

1.      Joint Commissioner
        Yelahanka Division
        Bruhat Bangalore Mahanagara Palike (BBMP)
        Byatarayanapura
        Bangalore 560 092

2.      Smt. Lakshmidevamma
        W/o. late M. Nagarajaiah alias
        Nageswara Rao
        Aged about 52 years
        R/o. No.51, Rajabhovi Colony
        5th Main Cross, Near KSRTC Bus Stand
        Chinthamani Town 563 125
                                2

         Chikkaballapur District         ... RESPONDENTS

(By Sri. K.N. Puttegowda, Adv. for R-1
Sri. Y.R. Sadashiva Reddy, Adv. for R-2)


      These writ petitions are filed under Articles 226 and
227 of the Constitution of India praying to quash the order
dated 24.7.2010 as per Annexure-P and etc.


      These writ petitions coming on for Preliminary
Hearing 'B' Group this day, the Court made the following:


                            ORDER

The petitioner claims to be the owner of the petition schedule properties on the basis of an unregistered Will dated 20.1.2006 said to have been executed by her son Sri. M. Nageshwara Rao, who had expired on 29.7.2009. She made an application for transfer of khatha of the said properties in her favour on the basis of the said Will. The competent authority has transferred the Khatha of the properties as per Annexure-C under Section 114(1) of the Karnataka Municipal Corporations Act, 1976 (for short 'the Act'). The 2nd respondent made an application for cancellation of the khatha under Section 114-A of the 3 Act. The 1st respondent has passed an order at Annexure-P dated 24.7.2010 cancelling the said khatha and directed the transfer of khatha in favour of the 2nd respondent. The petitioner has called in question the validity of the said order in these writ petitions.

2. Learned Counsel for the petitioner would contend that the petitioner is the owner of the properties in question. The competent authority has rightly transferred khatha of the said properties in her favour on the basis of the Will. The 1st respondent has cancelled the khatha on the ground that the Will has not been registered. A Will is not compulsorily registerable under the provisions of the Indian Registration Act, 1908. Thus, the order at Annexure-P dated 24.7.2010 is unsustainable in law.

3. On the other hand, learned Counsel for respondent No.2 submits that the petitioner has not produced the original Will before the 1st respondent. Admittedly, the alleged Will is an unregistered Will. The 2nd 4 respondent does not admit the execution of the said Will. Therefore, the 1st respondent was justified in passing the order.

4. It is evident from the materials on record that the khatha of the properties in question, which were transferred in favour of the petitioner, has been cancelled on the ground that the Will has not been registered. A Will need not be registered. Therefore, the 1st respondent is not justified in cancelling the khatha on the ground that the Will requires registration. However, the contention of the 2nd respondent is that no such Will has been executed by her husband Sri. M. Nageshwar Rao in favour of the petitioner. The petitioner has failed to produce the original Will before the 1st respondent. Having regard to the facts and circumstances of the cases, I am of the view that the 1st respondent has to reconsider the matter after affording the contesting parties an opportunity of being heard. 5

5. The writ petitions are accordingly allowed. The order at Annexure-P dated 24.7.2010 passed by the 1st respondent is hereby quashed and the matter is remitted back to the 1st respondent for fresh consideration in accordance with law. The 1st respondent is directed to afford an opportunity of being heard to the petitioner and the 2nd respondent before deciding the matter. The petitioner and the 2nd respondent are permitted to file their additional objections and produce the materials, if they so desire, in support of their contentions. No costs.

Sd/-

JUDGE.

Cs/-

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