Kerala High Court
Thresiamma Varghese Olikkara vs Sub Registrar Changanassery on 6 July, 2021
Equivalent citations: AIRONLINE 2021 KER 894
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
WP(C) NO. 12032 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
WP(C) NO. 12032 OF 2021
PETITIONER/S:
THRESIAMMA VARGHESE OLIKKARA
AGED 70 YEARS
W/O.LATE C.T.THOMAS, CHEERAMVELIL (BETHEL) HOUSE,
NEAR S.B.HSS, CHANGANACHERRY, VAZHAPPALLY EAST
VILLAGE, CHANGANACHERRY TALUK P.O., PIN-686 101.
BY ADVS.
SAIJO HASSAN
BENOJ C AUGUSTIN
RAFEEK. V.K.
P.PARVATHY
MANAS P HAMEED
RESPONDENTS:
1 SUB REGISTRAR CHANGANASSERY
SUB REGISTRAR'S OFFICE, KOTTAYAM P.O., PIN-686 101.
2 INSPECTOR GENERAL OF REGISTRATION,
VANCHIYOOR P.O., PIN-695 035, THIRUVANANTHAPURAM. SMT AC VIDHYA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 12032 OF 2021 2
JUDGMENT "CR"
Beleaguered in no small measure by the delay in registering a Will executed by her late husband, the petitioner, a senior citizen, is before this Court seeking directions.
2. Late C.T. Thomas, the husband of the petitioner, and the petitioner herein were the absolute owners in title and possession of several items of properties lying within the limits of Vazhappally East Village and Madappally Village. While so, C.T. Thomas left for his heavenly abode on 28.11.2018. During his lifetime, he had executed a will bequeathing his entire landed properties, deposits, shares etc in favour of the petitioner. On the strength of the Will, the petitioner approached the revenue authorities and requested that the property be mutated in her favour and she be permitted to remit basic tax. When there was some delay, she approached this Court and pursuant to directions issued, transfer of registry was effected. The petitioner states that though the Will is not a compulsorily registrable document, she decided to register the same to avoid unwanted complications. In the said circumstances, she approached the 1st respondent and submitted Ext.P2 application. Her grievance is that though the application was filed on 8.3.2021, no steps are being taken by the WP(C) NO. 12032 OF 2021 3 respondents. It is in the above backdrop that the petitioner is before this Court seeking the following relief:
i) Issue a writ, order or direction in the nature of mandamus or other appropriate writ directing the respondents to complete the registration proceeding pending as Will Enquiry Case No.P1/3/2021 and register the will within a time frame fixed by this Hon'ble Court.
3. I have heard Miss Parvathy.P., the learned counsel appearing for the petitioner and Smt. A.C.Vidhya, the learned Government Pleader.
4. I have considered the submissions advanced and have perused the records.
5. Part VIII of the Registration Act, 1908 provides for the procedure of presenting Wills and authorities to adopt. Sections 40 and 41 of the Act reads as follows:
Section 40: Persons entitled to present wills and authorities to adopt .- (1) The testator, or after his death, any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub-Registrar for registration. (2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub-Registrar for registration.
Section 41: Registration of wills and authorities to adopt.- (1) A will or an authority to adopt, presented for registration by the testator or donor, may be registered in the same manner as any other document.
WP(C) NO. 12032 OF 2021 4(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied--
(a) that the will or authority was executed by the testator or donor, as the case may be;
(b) that the testator or donor is dead; and
(c) that the person presenting the will or authority is, under section 40, entitled to present the same.
6. The testator or after his death, any person claiming as executor or otherwise under a Will is entitled to present the document before any Registrar or Sub Registrar for registration. The statute says that a Will may be registered in the same manner as any other document. However, the Registering Officer is required to satisfy himself that
a) the Will or authority was executed by the testator or donor as the case may be
b) that the testator or donor is dead and
c) that the person presenting the Will or authority is under Section 40 entitled to present the same.
7. The Registration Rules (Kerala) framed by the Inspector General of Registration in exercise of powers conferred under sub-section (1) of Section 69 of Act XVI of 1908 provides for the procedure to be followed by the Registering officer. Rule 84 and 85 are of some relevance. WP(C) NO. 12032 OF 2021 5
Rule 84: (1) When a will or an authority to adopt is presented for registration after the death of the testator or the donor, the Registering Officer shall after endorsing thereon the date, hour and place of presentation, the fee realised and after obtaining the signature of the presenting party fix a day for the enquiry contemplated by section 41(2) of the Act and shall cause notice of the enquiry (a) to be served on the persons to whom in his opinion special notice should be given; (b) to be pasted in a conspicuous part (i) of the registration office, (ii) of the house in which the testator or donor lived, (iii) of the villages where the testator or donor lived, where interested parties may reside and where the property of the deceased is situated, and (c) to be published in the Government Gazette.
(2) The cost of the service of the notice and of its publication shall be levied in advance from the person who presents the document for registration. The cost of publication in the Gazette shall be remitted into the treasury by the presentant. Rule 85: If a person presenting a will or an authority to adopt, or a person who objects to the registration of such a document on the ground that it was not executed by the testator or donor or that the testator or donor is not dead or that the person presenting the document is not entitled to present the same under section 40 of the Act, desires that witnesses should be summoned, the request shall be complied with and the procedure prescribed in Chapter XII shall be followed.
WP(C) NO. 12032 OF 2021 6
8. The Rules say that as and when a Will is presented for registration after the death of the testator or the donor, the Registering Officer is required to endorse the date, hour and place of presentation. The fees for the same will have to be remitted by the presenter. The signature of the presenting party has to be obtained and a date shall be fixed for the enquiry contemplated under section 41(2) of the Act. Notice of the enquiry will have
(a) to be served on the persons to whom in his opinion special notice should be given;
(b) to be pasted in a conspicuous part
(i) of the registration office,
(ii) of the house in which the testator or donor lived,
(iii) of the villages where the testator or donor lived, where interested parties may reside and where the property of the deceased is situated, and
(c) the notice shall also be published in the Government Gazette.
9. The cost of the service of the notice and of its publication is to be levied in advance from the persentant. Insofar as the cost towards Gazette publication is concerned, the same is to be remitted into the treasury. However, if a person presenting a Will or a person who objects to the registration of such a document on the ground that it was not executed by the testator or donor or that the testator or donor is not dead or that the WP(C) NO. 12032 OF 2021 7 person presenting the document is not entitled to present the same under section 40 of the Act, desires that witnesses should be summoned, the request shall be complied with and the procedure prescribed in Chapter XII shall be followed.
10. The provisions of Rule 458 and 459 of the Registration Manual (Kerala) lays down the procedure for enquiry under Section 41 of the Indian Registration Act. Rule 458 and 459 are extracted below for convenience.
458: Enquiries under Section 41 of the Indian Registration Act:-
The date for an enquiry under section 41(2) of the Indian Registration Act shall be fixed with due regard to the date of publication in the Gazette and the probable time it will take to reach the general public. Notifications to be published in the Gazette shall be submitted in duplicate through the Registrar for action accompanied by a chalan receipt in support of remittance of publication charges. The challan for publication charges shall be verified and countersigned by the Registering Officer before remittance. "The parties shall, directly remit the required sums at the treasury to the credit of the Government Press under the appropriate Head of Account."
459: In an enquiry under section 41(2) of the Indian Registration Act adjournments shall be restricted so that parties may not be put to unnecessary expense or trouble. Registration shall be refused if it is found that the presentant has not within a reasonable time taken steps to prove the execution of the will. WP(C) NO. 12032 OF 2021 8
11. It is evident from Rule 458 that the date of enquiry can be fixed only after ascertaining the time that is likely to be taken for the public to receive notice of the enquiry from the Gazette publication. Rule 459 states that adjournments shall ordinarily not be granted and registration shall be refused if the presentant does not take steps to prove the execution of the will within a reasonable time.
12. From the submissions advanced by the learned Government Pleader, it appears that the petitioner was intimated by letter dated 18.3.2021 to remit the fee for gazette notification and to present the original challan before the Sub Registrar. However, the petitioner did not respond initially and did not produce the challan evidencing the remittance of the fee. As per the Rules, the 1st respondent will be able to proceed with the publication of the Gazette notification only after receiving the original challan receipt. During the pendency of the writ petition, the challan evidencing the remittance of fee was produced before the Sub Registrar on 28.6.2021. It is submitted that Gazette publication was issued on 1.7.2021 and the enquiry date has been fixed on 28.9.2021.
In that view of the matter, there will be a direction to the 1st respondent to conclude the enquiry strictly in compliance with the provisions WP(C) NO. 12032 OF 2021 9 of the Act and Rules and conclude the same expeditiously, in any event, within a period of two months from the date of Gazette notification. The petitioner on her part shall be diligent and co-operate with the enquiry.
This writ petition is disposed of. No Costs.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE NS WP(C) NO. 12032 OF 2021 10 APPENDIX OF WP(C) 12032/2021 PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE JUDGMENT DATED
28.01.2020 IN WPC NO.818 OF 2020.
Exhibit P2 TRUE COY OF THE APPLICATION DATED
08.03.2021.
RESPONDENTS' EXHIBITS: NIL