Kerala High Court
Thankamma vs The State Of Kerala on 4 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA,
1942
WP(C).No.18628 OF 2020(C)
PETITIONER:
THANKAMMA, AGED 71 YEARS
WIFE OF LATE PAPPU, KOZHUPLIYATH HOUSE,
ANNAMANADA DESOM, KALLUR THEKKUMURY VILLAGE,
CHALAKUDY TALUK, THRISSUR-680 309.
BY ADV. SRI.P.JINISH PAUL
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 DEPUTY DIRECTOR OF PANCHAYAT,
OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT,
AYYANTHOL P.O., THRISSUR-680 003.
3 REGISTRAR OF BIRTH AND DEATH,
THE SECRETARY, KADUKUTTY GRAMA PANCHAYAT,
KADUKUTTY P.O., THRISSUR-680 309.
4 REVENUE DIVISIONAL OFFICER,
MINI CIVIL STATION, IRINJALAKKUDA,
THRISSUR-680 125.
5 JANARDHANAN,
AGED 74 YEARS
S/O.LATE SANKARANKUTTY AND KALIKUTTY,
KARIPPASSERY HOUSE, CHERUVALOOR DESOM,
KALLUR VADAKUMURY VILLAGE, CHALAKUDY TALUK.,
THRISSUR-680 308.
W.P.(C) No.18628 of 2020
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6 RADHAKRISHNAN
AGED 70 YEARS
S/O.LATE SANKARANKUTTY AND KALIKUTTY,
KARIPPASSERY HOUSE, CHERUVALOOR DESOM, KALLUR
VADAKUMURY VILLAGE, CHALAKUDY TALUK, THRISSUR-
680 308.
R3 BY ADV. SRI.SHEEJO CHACKO
R5 BY ADV. SRI.SADCHITH.P.KURUP
R5 BY ADV. SRI.VINOD JABAR
R5 BY ADV. SRI.C.P.ANIL RAJ
R6 BY ADV. SRI.NIRMAL V NAIR
OTHER PRESENT:
GP, RANJITA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.18628 of 2020
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W.P.(C) No.18628 of 2020
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JUDGMENT
Petitioner and the fifth respondent are siblings. Their
mother Kalikutty is no more. Kalikutty held an item of property. It is
stated by the petitioner that the fifth respondent has raised a claim
over the property held by Kalikutty on the premise that she had
executed a will on 13.07.1970 in respect of the property in his
favour. According to the petitioner, Kalikutty died on 28.02.1970
and the will relied on by the fifth respondent is a forged one. She
has therefore, instituted a suit as O.S.No.541 of 2018 before the
Munsiff's Court, Chalakkudy for enforcing her rights over the
property. In the meanwhile, since the death of Kalikutty was not
registered, the petitioner obtained Ext.P2 non-availability certificate
in terms of Rule 13 of the Kerala Registration of Births and Deaths
Rules, 1999 (the Rules) and preferred an application seeking orders
under Section 13(3) of the Registration of Births and Deaths Act,
1969 (the Act) before the fourth respondent for registration of the
death of Kalikutty. While so, the fifth respondent also applied for
non-availability certificate in respect of the death of Kalikutty before
the third respondent. In the said application, the date of death of
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Kalikutty was mentioned by the fifth respondent as 28.09.1971. In
the application preferred by the petitioner earlier for non-
availability certificate, the date of death of Kalikutty was mentioned
as 28.02.1970. In the light of the said disparity in the date of death
mentioned by the petitioner and the fifth respondent in their
respective applications, the third respondent recalled Ext.P2 non-
availability certificate. Ext.P6 is the order issued in this regard by
the third respondent. Ext.P6 order is under challenge in the writ
petition.
2. Heard the learned counsel for the petitioner, the
learned Government Pleader, the learned counsel for the third
respondent as also the learned counsel for the fifth respondent.
3. Sections 8 and 9 of the Act cast obligation on
persons mentioned therein to furnish information to the Registrar for
registration of births and deaths. Rule 5(3) of the Rules provides
that the said information shall be given within twenty one days from
the date of birth, death and still birth. Sub-section(3) of Section 13
provides that any birth or death which has not been registered
within one year of its occurrence shall be registered only on an order
made by a Magistrate of the First Class or a Presidency Magistrate
after verifying the correctness of the birth or death and on payment
of the prescribed fee. Sub Rule (3) of Rule 13 provides that if any
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particular event of birth or death is not found registered, the
Registrar shall issue a non-availability certificate in the prescribed
form. It is seen that non-availability certificate is insisted for
preferring an application under Sub Section (3) of Section 13 and it
is in the said circumstances, the petitioner has obtained Ext.P2 non-
availability certificate. The purpose of the said certificate is only to
inform the public that the death/birth of the person concerned is not
registered. It appears that the third respondent is under the
impression that if there is a dispute between the parties concerning
the date of death/birth of a person, non-availability certificate
cannot be issued. So long as the fact of non-registration of the
death/birth is not in dispute, there is absolutely no reason for
recalling the non-availability certificate. The fifth respondent has no
case that the death of Kalikutty is registered. If that be so, the third
respondent ought not have recalled Ext.P2 non-availability
certificate. Ext.P6 order is, therefore, unsustainable in law.
In the result, the writ petition is allowed, Ext.P6 order is
set aside and the fourth respondent is directed to dispose of the
application preferred by the petitioner under Sub Section (3) of
Section 13 of the Act in accordance with law, with notice to the
petitioner as also the fifth respondent. This shall be done within
three months. It is made clear that the finding, if any, rendered by
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the fourth respondent as to the date of death of Kalikutty, for the
purpose of registration of her death under the Act will not be
conclusive and it will still be open to the parties to invite an
adjudication on that issue in the pending suit.
Sd/-
P.B.SURESH KUMAR
JUDGE
ds 04.03.2021
W.P.(C) No.18628 of 2020
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE ORDER IN RP
NO.966/2018 DATED 14.11.2018.
EXHIBIT P2 THE TRUE COPY OF THE NON-AVAILABILITY
CERTIFICATE DATED 17.05.2018 ISSUED BY
3RD RESPONDENT.
EXHIBIT P3 THE TRUE COPY OF THE REPORT NO.242/18
DATED 16.06.2018 OF THE VILLAGE
OFFICER.
EXHIBIT P4 THE TRUE COPY OF THE REPORT NO.8018/18
DATED 19.06.2018 OF TAHSILDAR.
EXHIBIT P5 THE TRUE COPY OF THE SHOW CAUSE NOTICE
DATED 07.07.2018 ISSUED BY 3RD
RESPONDENT.
EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED
28.07.2018 ISSUED BY 3RD RESPONDENT.
EXHIBIT P7 THE TRUE COPY OF THE LETTER DATED
27.01.2020 SENT BY THE 2ND RESPONDENT
TO THE CHIEF REGISTRAR.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R3 (a) TRUE COPY OF THE APPLICATION DATED 15-
05-2015 FILED BY THE PETITIONER
EXHIBIT R3 (b) THE TRUE COPY OF HTE APPLICATION DATED
25.06.2018 FILED BY THE 5TH RESPONDENT
