Thresiamma Varghese Olikkara vs Sub Registrar Changanassery
2021 Latest Caselaw 13879 Ker

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:

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

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.

(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.

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.

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

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.

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

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

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