Shri Ashok Subbaiah @ Subbaiah ... vs Deputy Commissioner
2022 Latest Caselaw 8949 Kant

                             1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 16TH DAY OF JUNE, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE R. NATARAJ

       WRIT PETITION NO.10263/2021 (LB-RES)

BETWEEN:
SHRI ASHOK SUBBAIAH @
SUBBAIAH PULLERA,
S/O LATE P.N.APPANNA,
AGED ABOUT 60 YEARS,
"ANUGRAHA", MANGALADEVI NAGAR,
MADIKERI, KODAGU DISTRICT,
PIN-571201.
                                               ...PETITIONER
(BY SRI. G.RAVISHANKAR SHASTRY, ADVOCATE)

AND:

1.     DEPUTY COMMISSIONER
       KODAGU DISTRICT
       MADIKERI, KODAGU,
       PIN-571201.

2.     CITY MUNICIPALITY
       MADIKERI,
       REPRESENTED BY ITS COMMISSIONER
       PIN-571201.

3.     SMT. ANITHA THAVI
       W/O M.S.THAVI MADAPPA
       AGED ABOUT 54 YEARS,
       R/AT PAALIBETTA, VIRAJPETE TALUK,
       KODAGU DISTRICT, PIN-571218.
                                           ...RESPONDENTS
(BY SMT. PRATHIMA HONNAPURA, ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NO.1;
                                     2




SMT. K.S.ANASUYADEVI, ADVOCATE FOR RESPONDENT NO.2;
SRI. K.G.AIYAPPA, ADVOCATE FOR RESPONDENT NO.3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 30.10.2019 IN No.MUNICI/92/2013-14
PASSED BY THE DEPUTY COMMISSIONER, KODAGU DISTRICT,
MADIKERI CERTIFIED COPY OF WHICH IS PRODUCED AT
ANNEXURE-A.

       THIS PETITION COMING ON FOR PRILIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

The petitioner has challenged an order dated

30.10.2019 passed by the respondent No.1 under Section

306 of the Karnataka Municipalities Act, 1964 (henceforth

referred to as "Act of 1964" for short) rejecting the petition

filed by him challenging the mutation proceedings initiated

by the respondent No.2 concerning the property bearing

Sy.No.47/17 lying in Block No.16 of Madikeri Town

(henceforth referred to as "subject property" for short).

The petitioner has also sought for quashing the order

dated 25.09.2013 passed by the respondent No.2

transferring the khatha of the subject property to the

name of the respondent No.3 herein.

2. The petitioner claims that the subject property

belonged to his family. The respondent No.3 initiated

proceedings before the respondent No.2 to enter her name

after the death of the father of the petitioner. The

respondent No.2, without issuing notice to the petitioner,

passed an order directing the name of respondent No.3 to

be entered in the property register of the Municipal

Council, which was based on a Will propounded by the

respondent No.3. The respondent No.3 claimed that the

subject property belonged to Pullera Appanna and the

petitioner, respondent No.3 were his children. The said

Pullera Appanna died on 23.06.2013. The respondent No.3

claimed that Pullera Appanna had executed a Will

bequeathing the subject property in her favour. The

respondent No.2 had transferred the name of the

respondent No.3 in the assessment register of the subject

property.

3. Being aggrieved by the aforesaid, the

petitioner filed an appeal before the respondent No.1

under Section 306 of the Act of 1964 contending that he

was the son of Pullera Appanna and therefore, after the

death of his father, the name of the petitioner must have

been entered. He also contended that the respondent

No.1 without considering the contentions urged by the

petitioner had dismissed the appeal directing the petitioner

to approach the Civil Court.

4. The learned counsel for the petitioner

submitted that the respondent Nos.1 and 2 had no

authority in law to register the name of the respondent

No.3 in the property register based on a Will. He

contended that the respondent Nos.1 and 2 ought to have

directed the respondent No.3 to obtain appropriate

declaration from the Civil Court. The learned counsel relied

upon the judgment of the Full Bench of this Court in

C.N.Nagendra Singh vs. The Special Deputy

Commissioner, Bangalore District and others [2002

(6) KLJ 391].

5. The learned counsel for the respondent No.3,

on the other hand, submitted that the petitioner did not

dispute the relationship of the respondent No.3 with

Pullera Appanna. He further contended that the Will in

question executed by Pullera Appanna was registered in

accordance with law and therefore, the respondent No.2

was justified in entering the name of the respondent No.3

in the assessment register of the subject property. In this

regard, the learned counsel for the respondent No.3 relied

upon an order of a Co-ordinate Bench of this Court in

P.K.Vasudevan vs. Deputy Commissioner of Kodagu

District, Madikeri and others, [2002 (4) KCCR 2285].

He further submitted that the executor of the Will filed a

petition under Section 276 of the Indian Succession Act,

1925 in P & S.C. No.13/2018 before the Principal District

and Sessions Judge, Kodagu at Madikeri, where the

petitioner herein was arrayed as a party. The said

proceeding was treated as a dispute and registered as

O.S.No.1/2019 and therefore, the khatha entries need not

be disturbed until the disposal of O.S.No.1/2019.

6. I have considered the submissions made by

the learned counsel for the parties.

7. Section 111 of the Act of 1964 reads as

follows:

               "111.    Notice to be given to          municipal
      council of all transfers of title           by persons
      primarily liable to payment of property              tax.--
      (1) Whenever the title of any          person     primarily

liable for the payment of a tax imposed on any premises in the form of a rate on buildings, or vacant land or both, is transferred, the person whose title is transferred and the person to whom the same is transferred shall, within three months after the execution of the instrument of transfer or after registration if it be registered or after transfer is effected, if no instrument is executed, give notice of such transfer in writing to the Municipal Commissioner or the Chief Officer.

(2) In the event of the death of any person primarily liable as aforesaid, the person on whom the title of the deceased devolves, shall give notice of such devolution to the Municipal Commissioner or the Chief Officer within six months from the date of death of the deceased."

8. Section 113 of the Act of 1964 reads as

follows:

"113. Name of transferee to be entered in property tax register.- Whenever such transfer comes to the knowledge of the Municipal Commissioner or Chief Officer through such notice the name of the transferee shall be entered in the property tax register."

9. The petitioner and the respondent No.3 are the

children of Pullera Appanna, who died on 23.06.2013. It is

not in dispute that the name of Sri. Pullera Appanna was

entered in the property register of the subject property.

When the respondent No.3 made a claim for transfer of her

name in the property register extract based on a Will

allegedly executed by Pullera Appanna, the respondent

No.2 must have notified the petitioner as provided under

Section 112 of the Act of 1964. A Will is not a transfer

inter-vivos and therefore, the respondent No.2 could not

have arrogated to himself the authority to adjudicate upon

the due execution of the Will. Instead, he must have

directed the respondent No.3 to obtain appropriate

declaration from the competent Court that the Will was

validly executed by Pullera Appanna. The Full Bench of this

Court in the case of C.N. Nagendra Singh, (supra), had

considered the said question and had held that the

Revenue Authorities have no jurisdiction to decide upon

the validity of the Will.

10. Since it is stated that the petitioner and the

respondent No.3 are already litigating before the Civil

Court in O.S.No.1/2019, which is pending before the I

Additional District and Sessions Judge, Kodagu at Madikeri,

it is appropriate that the khatha entries that stood

immediately prior to the order passed by the respondent

No.2 is restored. The respondent No.2, may, after the

disposal of O.S.No.1/2019, take further steps to enter the

name of the person who succeeds in O.S.No.1/2019.

11. In that view of the matter, this writ petition is

allowed. The khatha effected in the name of respondent

No.3 herein by the respondent No.2 in respect of the

subject property is ordered to be struck-off. It is ordered

that the respondent No.2 shall forthwith restore the khatha

of the subject property, in the name of the person, as it

stood prior to entering the name of respondent No.3. The

respondent No.2 shall take steps to enter the name of the

person who succeeds in O.S.No.1/2019, which is pending

consideration before the I Additional District and Sessions

Judge, Kodagu at Madikeri.

Sd/-

JUDGE

PMR