Madras High Court
C.Sivakumar vs / on 30 October, 2019
Author: M.Sundar
Bench: M.Sundar
W.P(MD)No.22863 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.10.2019
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P(MD)No.22863 of 2019
and
W.M.P(MD)No.19609 of 2019
C.Sivakumar ... Petitioner
/Vs./
1.The District Revenue Officer,
Theni, Theni District.
2.The Revenue Divisional Officer,
Theni, Theni District.
3.The Zonal Deputy Tahsildar,
Uthamapalayam Taluk,
Theni District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the records
pertaining to the impugned order made in Koppu No. 2019/0103/25/033649
passed by the 3rd respondent dated 18.07.2019 and impugned order made
in Koppu No.2019/0103/25/033648 passed by the 3rd respondent dated
22.07.2019 and quash the same and consequently direct the respondent
No.3 to transfer the patta bearing Nos. 398, 2414 and 1437 in favour of the
petitioner and his younger brother namely Ravichandran within the time
stipulated by this Court.
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W.P(MD)No.22863 of 2019
For Petitioner : Mr.D.Sadiq Raja
For Respondents : Mr.B.Bhagawathi
Government Advocate
ORDER
Mr.D.Sadiq Raja, learned counsel on record for writ petitioner and Mr.B.Bhagawathi, learned Government Advocate who accepts notice on behalf of all the three respondents are before this Court.
2. With consent of learned counsel on both sides, main writ petition is taken up, heard out and is being disposed of.
3. Short facts shorn of unnecessary details or in other words facts which are imperative for appreciating instant order are that certain extents of 'lands comprised in three (3) different survey numbers namely S.No.565, S.No.570/3A and S.No.568/2 in Uthamapuram Village, Uthamapalayam Taluk, Theni District' (hereinafter referred to as 'said lands' for the sake of brevity) belonged to writ petitioner's father one S.K.Chinnaiyan; that writ petitioner's father S.K.Chinnaiyan died on 22.05.2015 leaving behind an unregistered Will dated 03.04.2014 with regard to said lands and that writ 2/10 http://www.judis.nic.in W.P(MD)No.22863 of 2019 petitioner and his brother who are two (2) male legal heirs of writ petitioner's father are entitled to equal share in said lands vide the testament ie., unregistered Will.
4. In the aforesaid backdrop, writ petitioner submitted an online application for transfer of patta which as placed before this Court as part of the case file is as follows:
5. The aforesaid application for transfer of patta in the name of writ petitioner and his younger brother came to be negatived by two (2) 3/10 http://www.judis.nic.in W.P(MD)No.22863 of 2019 separate orders made by third respondent being 'orders dated 18.07.2019 bearing reference Koppu No.2019/0103/25/033649 and dated 22.07.2019 bearing reference Koppu No.2019/0103/25/033648' (hereinafter referred to as 'impugned orders' collectively in plural and 'impugned order' in singular for the sake of brevity, clarity and convenience). Impugned orders as placed before this Court as part of the case file are as follows: 4/10
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6. Assailing the impugned orders, instant writ petition has been filed.
7. Notwithstanding very many averments made in the affidavit filed in support of instant writ petition, notwithstanding several grounds urged /contentions canvassed in the affidavit filed in support of instant writ petition, at the hearing, learned counsel for writ petitioner projected his arguments on one pivotal point and that one pivotal point is registration of a Will is optional. In support of his submission, learned counsel drew the attention of this Court to Section 18(e) of the 'Registration Act, 1908' (hereinafter referred to as 'said Act' for the sake of brevity) and Section 18 of said Act reads as follows:
'18.Documents of which registration is optional.-Any of the following documents may be registered under this Act, namely,--
(a)instruments (other than instruments of gifts and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;
(b)instruments acknowledging the receipt of payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(c)leases of immovable property for any term not exceeding one year, and leases exempted under Section 17;
(d)instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish 6/10 http://www.judis.nic.in W.P(MD)No.22863 of 2019 any rights, title or interest to or in movable property;
(e)wills; and
(f)all other documents not required by section 17 to be registered.' (bold font and underlining made by Court to supply emphasis and highlight).
8. It is also pointed out that said Will being unregistered is the only ground for negativing writ petitioner's application dated 02.07.2019 and no other reason has been articulated in the impugned orders.
9. Learned State counsel submitted that it is necessary to examine all aspects of an application requesting transfer of patta, but there is no disputation or disagreement about the obtaining legal position that registration of a Will is optional.
10. In the aforesaid backdrop, this Court is left with the considered view that the impugned orders cannot be sustained in the light of Section 18(e) of said Act, as the lone reason that has been mentioned in the impugned orders is that the Will is unregistered. To be noted, law is also well settled that the impugned orders cannot be improved by way of 7/10 http://www.judis.nic.in W.P(MD)No.22863 of 2019 counter affidavit or submissions at the hearing.
11. In the light of the narrative thus far, following order is passed:
(a) Impugned orders being Koppu No. 2019/0103/25/033649 passed by the 3rd respondent dated 18.07.2019 and in Koppu No. 2019/0103/25/033648 passed by the 3rd respondent dated 22.07.2019 are set aside.
(b) Impugned orders are set aside solely on the ground that lone reason mentioned therein is contrary to Section 18(e) of said Act.
(c) Third respondent shall now take up the writ petitioner's application dated 02.07.2019, consider the same on its own merits / in accordance with law and pass orders as expeditiously as possible and in any event within twelve (12) weeks from the date of receipt of a copy of this order.
(d) While reconsidering the application dated 02.07.2019, registration of Will being optional under Section 18(e) of said Act shall be borne in mind.
(e) Disposal of writ petitioner's application dated 02.07.2019 shall be communicated to writ petitioner under due acknowledgment within seven (7) working days from the date of disposal.
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12. Instant Writ Petition is partly allowed albeit with directions as above. No costs. Consequently, connected Miscellaneous Petition is closed.
30.10.2019
Index : Yes / No (2/2)
Internet : Yes / No
sm
To
1.The District Revenue Officer,
Theni, Theni District.
2.The Revenue Divisional Officer,
Theni, Theni District.
3.The Zonal Deputy Tahsildar,
Uthamapalayam Taluk,
Theni District.
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W.P(MD)No.22863 of 2019
M.SUNDAR,J.
sm
Order made in
W.P(MD)No.22863 of 2019
(2/2)
Dated:
30.10.2019
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