Kerala High Court
Dr. M.P.Korah vs Dr. Mrs. Rachel Zacharia Alias Rahel on 6 June, 2017
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 30TH DAY OF OCTOBER 2017/8TH KARTHIKA, 1939
RP.No. 646 of 2017
-------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 18656/2017 DATED 06-06-2017
------------
PETITIONER(S)/RESPONDENTS 3 TO 8:
--------------------------------------------------------
1. DR. M.P.KORAH,
AGE 80 YEARS, S/O.LATE PAILY,
RESIDING AT MANJUJUMMEKUDIYIL,
(CHELAKKULAM), KEERAMPARA P O, PIN-686681,
KEERAMPARA VILLAGE, KOTHAMANGALAM TALUK,
ERNAKULAM DISTRICT.
2. DR. M.P.KURUVILA
AGED 78 YEARS, S/O.LATE MR.PAILY,
RESIDING AT 15, CEDAR RIDGE LANE,
DIX HILLS, LONG ISLAND, NEW YORK,
11746, USA.
3. M.P.VARGHESE,
AGED 63 YEARS, S/O.LATE PAILY RESIDING AT G-348,
PANAMPILLY NAGAR, P O KOCHI-682036, ELAMKULAM VILLAGE,
KANAYANNOOR TALUK, ERNAKULAM DISTRICT,
PIN:682 036.
4. MRS. ANIMOL,
AGED 77 YEARS, W/O.DR.M.P.KORAH,
RESIDING AT MANJUMMEKUDIYIL(CHELAKKULAM), KEERAMPARA P O,
686681, KEERAMPARA VILLAGE,
KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.
5. MRS. JOLLY KURUVILA
AGED 64 YEARS, W/O.DR.M.P.KURUVILLA,
RESIDING AT 15, CEDAR RIDGE LANE, DIX HILLS,
KONG ISLAND, NY 11746, USA.
RP.No. 646 of 2017
-------------------------------------------
6. MRS. SALYVARGHESE
AGED 62 YEARS, W/O.M.P.VARGHESE,
G-348, PANAMPILLY NAGAR,
P O, KOCHI-682036, ELAMKULAM VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT.
(PETITIONERS 2 AND 5 REPRESENTED BY THEIR
POWER OF ATTORNEY HOLDER M.P.VARGHESE,
AGED 63 YEARS, S/O.LATE KORA PAILY,
MANJUMMEDKUDIYIL HOUSE, KEERAMPARA P.O,
KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT,
PIN: 686681).
BY ADVS.SRI.N.SUKUMARAN (SR.)
SRI.S.SHYAM
SRI.V.K.BALACHANDRAN
RESPONDENT(S)/PETITIONER AND RESPONDENTS 1, 2 AND 9:
----------------------------------------------------
1. DR. MRS. RACHEL ZACHARIA ALIAS RAHEL,
AGED 78 YEARS, D/O.LATE PAILY, W/O.DR.ZACHARIAH THOMAS,
RESIDING AT VILLA NO.6, MERIDIAN REGENT SQUARE, V P PETER
ROAD, MARADU P O, PIN-682304,
MARADU VILLAGE, KANAYANNOOR TALUK,
ERNAKULAM DISTRICT.
2. THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO
GOVERNMENT OF KERALA,
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM -695 001.
3. THE TAHSILDAR, KANAYANNUR TALUK
ERNAKULAM, COCHIN -682 011.
R1 BY ADV. SRI.M.N.MATHEW
R2 & R3 BY GOVERNMENT PLEADER SRI. RAVI KRISHNAN
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 30-10-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
sdr/-
C.R
P.B.SURESH KUMAR, J.
-----------------------------------------------
Review Petition No.646 of 2017
in
W.P.(C) No.18656 of 2017
-----------------------------------------------
Dated 30th October, 2017.
O R D E R
Respondents 3 to 8 in the writ petition have come up with this review petition. Parties are referred to in this order as they appear in the writ petition.
2. Heard the learned Senior Counsel for the review petitioners, the learned counsel for the writ petitioner as also the learned Government Pleader.
3. The matter arises under the Transfer of Registry Rules, 1966 (the Rules). The facts relevant for the disposal of the Review Petition are the following: An item of property was obtained by the petitioner along with her parents, siblings and one of her sisters-in-law. Respondents 3 to 5 are the siblings of the petitioner and the sixth respondent is her sister-in-law who obtained the property along with her. The father of the petitioner died in the year 2003 and her mother died in the year 2011. After R.P.No.646/17 2 the death of the parents of the petitioner, she came to know that mutation of the property has been changed in the village records in favour of respondents 7 and 8 also who are the remaining sisters-in-law of the petitioner, on the basis of a joint Will alleged to have been executed by her parents. Ext.P5 is the copy of the Thandaper Account containing the entries in favour of respondents 7 and 8. According to the petitioner, her parents have not executed any Will and as such, their rights over the property devolved on her and her siblings on their death. The petitioner, therefore, instituted a suit for partition of her rights over the property and the same is pending. She also preferred representations before the Revenue officials to cancel the transfer of registry effected in favour of respondents 7 and 8. The writ petition was filed thereafter, alleging that the requests made by her before the Revenue officials are not being considered by them. The writ petition was disposed of at the admission stage itself directing the additional ninth respondent, who is the competent authority under the Rules to deal with appeals against transfer of registries, to treat Ext.P7 representation preferred by the petitioner before him for cancellation of the transfer of R.P.No.646/17 3 registry in favour of respondents 7 and 8 as an appeal under Rule 18 (i) of the Rules and dispose of the same with notice to all concerned. Respondents 3 to 8 are aggrieved by the said direction.
4. The learned Senior Counsel for respondents 3 to 8 contended that transfer of registry is only an arrangement for fiscal purpose and that the same does not affect the legal rights of the parties concerned over the property. It was also contended by the learned Senior Counsel that pattas are liable to be revised as and when the rights of parties are adjudicated by the Civil Courts. As such, according to the learned Senior Counsel, this Court ought not to have issued any direction in the writ petition, especially when it was disclosed in the writ petition that a suit is pending in relation to the property. It was pointed out by the learned Senior Counsel that in so far as the case of the petitioner in the instant case is that the Will relied on by respondents 7 and 8 is not a genuine one, the direction in the writ petition is virtually a direction to the Revenue officials to adjudicate upon the genuineness of the Will.
5. The case set up by the petitioner in the writ petition R.P.No.646/17 4 was that in a case of this nature, where the petitioner disputes the genuineness of the Will relied on by respondents 7 and 8, transfer of registry is not contemplated under the Rules until the rights of parties are adjudicated by a competent Civil Court. It was also the case of the petitioner that at any rate, transfer of registry ought not to have been effected by the competent authority under the Rules without notice to the petitioner who is one of the heirs of the deceased owners of the property as per the relevant law of succession. It was specifically contended by the petitioner in the writ petition that the Rules provide for notice to the heirs of the deceased owners when transfer of registry is claimed on the strength of the Wills claimed to have been executed by them. It is in the light of the said contentions of the petitioner, especially the contention that notice should have been issued to the petitioner before effecting the transfer of registry, the writ petition was disposed of in the manner indicated above. In the course of the arguments, on a query from the Court, the learned Senior Counsel for respondents 3 to 8 took the stand that it was not obligatory for the competent authority under the Rules to issue notice to the petitioner in a case of this nature. R.P.No.646/17 5
6. In so far as this Court did not consider the question as to whether the transfer of registry effected in favour of respondents 7 and 8 was in accordance with the Rules, it is not necessary to consider that question for the disposal of this review petition. The questions arise for consideration, therefore, are (1) whether the petitioner, who is a person interested in the property, is precluded from challenging the decision taken by the competent authority under the Rules merely for the reason that a suit is pending in relation to the property and (2) whether the competent authority under the Rules was obliged to issue notice to the petitioner before effecting transfer of registry in a case of this nature.
7. There cannot be any dispute to the proposition that the summary enquiry contemplated under the Rules and the decisions taken in the transfer of registry cases are only arrangements for fiscal purposes and the same do not affect the rights of parties over the properties. Likewise, it is also settled that the rights of parties are always to be decided by the competent Civil Courts and the decisions taken in transfer of registry cases are liable to be revised in accordance with the R.P.No.646/17 6 decisions of the Civil Courts. Rule 16 of the Rules clarifies these aspects. But, at the same time, one cannot forget the fact that the Rules which were introduced half a century ago are though intended for maintenance of land records for fiscal purpose, in course of time, when market value of the land increased in the State many folds and when landed properties became one of the main forms of investment and also when landed properties became the main form of security for all commercial transactions including loans and other credit facilities extended by banks and financial institutions, transfer of registry in favour of the person who claims title over the property became the most crucial aspect of examination in the title scrutiny of the properties. It was all the more so after the introduction of the Land Reforms legislations in the State whereby, persons who are holding limited interests in the properties were granted the right to claim assignment of the property on registry, for, in such cases, one could ascertain the issue whether the purchase certificate in favour of the ostensible owner has become final only based on the transfer of registry, if any, effected on the strength of the same. In the light of the aforesaid social changes, at times, more sanctity is attributed to R.P.No.646/17 7 the transfer of registry than the title deeds under which the parties claim title to the property. In other words, if a person who holds a registered instrument has effected transfer of registry in respect of the property to his name, one would presume that the person concerned holds a valid title to the property and enters into transactions with him in respect of the property. In so far as testamentary instruments are not compulsorily registrable, more reliance is placed on the transfer of registry by persons who are intending to enter into transactions with the person claiming title over the same. A reading of the Rules would indicate that the same is framed in such a fashion that only persons who could legitimately claim title to the property will be able to get the transfer of registry effected in their name in the respect of the same. In the circumstances, it is necessary to follow meticulously and scrupulously the Rules while effecting transfers of registry and if the same is not done, innocent people will be dragged into unnecessary litigations. The fact that a suit is pending in relation to the property will not improve the situation, for, persons intending to deal with ostensible owners of the property may or may not be in a position to ascertain the pendency of the suit. It is R.P.No.646/17 8 all the more so since the possibility of creating right over the property without disclosing the pendency of the suit cannot be ruled out. The contention of respondents 3 to 8 that in so far as a suit is pending in relation to the property, the petitioner is not entitled to challenge the transfer of registry in favour of respondents 7 and 8, in the circumstances, cannot be accepted. It is to be clarified, however, that the scope of such proceedings is to be confined to the limited purpose of examining the question whether the transfer of registry is in accordance with the Rules. The question aforesaid is thus decided accordingly.
8. Now, I shall deal with the question as to whether it was obligatory for the competent authority under the Rules to issue notice to the petitioner in a case of this nature before transfer of registry was effected in favour of respondents 7 and 8. Going by the scheme of the Rules, transfer of registry takes place either (1) by voluntary action of owners, (2) by decrees of civil courts or by revenue sales and (3) by succession. Rule 3 of the Rules dealing with the procedure to be followed by the competent authority for effecting transfer of registry provides that it shall be the duty of the Village Officer, whenever pattadar dies, to report R.P.No.646/17 9 the said fact to the Thahsildar with the names of the legal heirs so far as can be ascertained. Rule 9 provides that the cases received in the Taluk Office with the report of the Village Officer shall be classified and dealt with separately as, (a) uncontested cases, (b) contested cases and (c) cases involving sub-divisions. Rule 10 provides that uncontested cases may be of two kinds, viz, (1) those which can be disposed of without further enquiry and (2) those in which a decision cannot be taken without conducting a further enquiry by the Tahsildar. Note (ii) to Rule 10 clarifies that the cases coming under the second category are transfers due to inheritance, acquisition of title by adverse possession etc. for which the parties might have applied under Rule 4. The said Note also clarifies that though most of such cases are usually uncontested, notices should be issued to the parties interested, if any, in all such cases and such cases shall be disposed of on merits after giving the parties concerned an opportunity of being heard. Note (ii) to Rule 10 reads thus:
"Note.--(ii) The cases coming under the second category are transfers due to inheritance acquisition of title by adverse possession etc. for which the parties might have applied under Rule 4. Most of such cases are usually uncontested but in all such cases notices R.P.No.646/17 10 should be issued to the parties interested, if any, inviting objections, to the transfer of registry. The objection should be preferred within 15 days of the service of the notice. Copies of the notice shall also be published on the Notice Board of the concerned Village, Panchayat and Taluk Offices. Such cases shall also be disposed of by the Deputy Tahsildar on merits, after giving the parties concerned an opportunity of being heard. A Revenue Inspector after making personal enquiry in the village where the land situated may dispose of such of the petitions, presented to him and also such of the cases of transfer ascertained by him as do not involve the formation of new sub- divisions and about which there is no dispute."
Sub-rule (2) of Rule 14 dealing with the general principles to be observed while disposing of transfer of registry cases, provides that when the transfer of registry is due to inheritance, a summary enquiry as to who is the nearest legal heir of the deceased pattadar according to the law of inheritance applicable to the parties concerned shall be made. The said sub-rule also provides that a notification to the proposed transfer of registry in the name of the legal heirs shall be published in the Village, Panchayat and Taluk offices, inviting objections, if any, within 15 days from the date of publication of the notice in such cases. Clause (i) of Rule 27 of the Rules dealing exclusively with the transfer of title by succession provides that if the succession is disputed, the Tahsildar should hold a summary enquiry as to who R.P.No.646/17 11 has the right to succeed to the property of the deceased registered holder according to the principles of the law of succession which governs the case and give notice to all persons known or believed to be interested in the manner provided in Note (ii) to Rule 10 to the effect that the registry will be made in the name of the persons found to be entitled, unless a declaration is filed within three months from the date of the notice, by any person objecting to the registry, stating that he has instituted a suit in a Civil Court to establish his superior title and an authenticated copy of the plaint in the suit is produced. The clause also provides that if a declaration is filed, the result of the suit should be awaited before taking further action. The aforesaid provisions in the Rules indicate beyond doubt that when transfer of registry is claimed on the basis of succession, it is obligatory on the part of the competent authority to conduct an inquiry as to the persons who are entitled to succeed to the property of the deceased registered holder according to the principles of the law of succession which governs the case. Going by the Rules, it is also obligatory for the competent authority in a case of that nature to issue notice to all such persons and conduct a summary R.P.No.646/17 12 inquiry as to the entitlement of the person claiming transfer of registry. The Rules also make it clear that if the persons to whom notices are issued prefer a suit and produce a copy of the plaint before the competent authority, the competent authority shall await for the decision in the suit for effecting transfer of registry. In the circumstances, the contention of respondents 3 to 8 that transfer of registry can be effected by the competent authority under the Rules in the case of succession without notice to the persons who are entitled to succeed to the estate as per the law of succession applicable, cannot also be accepted. The question aforesaid is thus decided accordingly.
There is, therefore, no merit in the review petition and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs (true copy)