Kerala High Court

Rukmini Amma vs Subhadra Amma on 3 January, 2022

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

               THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

         MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943

                          WP(C) NO. 720 OF 2012

PETITIONER/S:
     1      RUKMINI AMMA
            AGED 73 YEARS
            D/O NARAYANAN NAIR, RESIDING AT AYYANARI HOUSE, PO. CHULOOR,
            KOZHIKODE-673601.
     2      SAHADEVAN NAIR
            AGED 69 YEARS
            S/O. NARAYANAN NAIR, RESIDING AT PADINHAREKALIYEDATH HOUSE
            PO. NAYARKUZHI, KOZHIKODE-673601.
     3      P.M. LAKSHMIKUTTY AMMA
            AGED 60 YEARS
            D/O NARAYANAN NAIR, RESIDING AT MANJAKKOTT HOUSE, PO. MAVOOR,
            KOZHIKODE-673 631.
     4      SUMATHI AMMA
            AGED 53 YEARS
            D/O NARAYANAN NAIR, RESIDING AT THYKANDIYIL HOUSE, PO.
            NAYARKUZHI, KOZHIKODE 673601.
            BY ADVS.
            SRI.V.V.SURENDRAN
            SRI.P.A.HARISH

RESPONDENT/S:
     1      SUBHADRA AMMA
            W/O. KUTTIKRISHNAN NAIR, RESIDING AT PADINHARA THODUKAYIL
            HOUSE, PO. NAYARKUZHI, VIA REC, KOZHIKODE-673601.
     2      THE TAHASILDAR
            CIVIL STATION, CALICUT-673020.
     3      THE VILLAGE OFFICER
            POOLAKODE VILLAGE, VIA R.E.C, P.O. NAYARKUZHI, KOZHIKODE 673
            601.
            BY ADVS.
            SMT.K.PUSHPAVATHI
            SRI.A.SUDHI VASUDEVAN

OTHER PRESENT:
            SRI.RAJEEV JYOTHISH GEORGE, GP

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION          ON
03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC No. 720/2012                       2




                           P.V.KUNHIKRISHNAN, J
                       ----------------------------------
                          W.P.(C.) No. 720 of 2012
                           --------------------------------
                   Dated this the 3rd day of January, 2022


                                JUDGMENT

The above writ petition is filed with following prayers :

i) "Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to hear the petitioners also in its proceedings initiated by it pursuant to the application filed by the 1st respondent seeking permission to remit land tax pursuant to Ext. P3 will.

ii) Issue a writ of certiorari or any other appropriate writ order of direction quashing any order if any passed by the 2nd respondent on the application filed by the 1st respondent seeking permission to remit land tax on the basis of Ext.P3 will.

iii) Issue a writ of mandamus or any other appropriate writ order or direction directing the 3rd respondent not to receive land tax from the 1st respondent on the basis of any order passed by the 2nd respondent on the basis of Ext.P3 will relied upon by the 1st respondent.

iv) Issue any other appropriate writ or order which this Honourable court may deem just fit and proper in the facts and circumstances of the case and sufficient for the redressal of the grievances of the petitioner."

2. The petitioners and the 1st respondent are the

children of late Narayanan Nair. Apart from the petitioners and

the 1st respondent, deceased Narayanan Nair had three other

children. Late Narayanan Nair had executed Ext.P1 will

distributing his properties equally among his legal

representatives. The said will was executed in the year 1993

and was deposited before the District Registrar, Kozhikode.

Upon the death of Narayanan Nair in the year 2002, it is

contended by the petitioners that, the will has become

operative and the parties are in possession and enjoyment of

the respective properties pursuant to Ext.P1. The distribution

of assets of late Narayanan Nair as per Ext.P1 will, according

to the petitioners was uniform. It is the case of the petitioners

that after almost an year prior to his death, Narayanan Nair

had become senile and had lost his sound state of disposition.

The 1st respondent was not satisfied with the property allotted

to her. It is the case of the 1 st respondent that Narayanan Nair

had executed another will just prior to his death and that the

parties are governed by that will. Ext.P3 is the will.

Accordingly, the suit for partition against the legal

representatives of Narayanan Nair and a suit for injunction

against the 3rd petitioner on the basis of Ext.P3 will was filed

before the civil court. Subsequently, the 1st respondent

withdrawn both the suits with liberty to file it again. Exts.P4

and P5 are the judgments in both the suits. During the

pendency of those suits, the 1st respondent applied before the

2nd respondent to remit land tax in accordance to Ext.P3 will.

The same was contested by the 3rd petitioner and on reference,

the District Collector as per Ext.P6 order directed the parties

to maintain status quo and further held that the parties will

govern by the decision of the civil court. It is the case of the

petitioners that, the 1st respondent in collusion with the 2nd

respondent made another application to remit tax based on

Ext.P3 will. It is the case of the petitioners that Ext.P6 order

was suppressed by the 1st respondent. On coming to know

about the same, the petitioners submitted an application before

the 2nd respondent for impleading them in the proceedings.

That was refused. In such circumstances, this writ petition was

filed.

2. Heard the learned counsel for the petitioners and the

learned Government Pleader. There is no representation for

respondent No.1. No counter is also filed by the 1st respondent.

3. The counsel for the petitioners reiterated the

contentions of the petitioners in this writ petition. The counsel

submitted that in the light of the fact that the suit already

withdrawn, there is no difficulty in accepting tax from the

petitioners based on Exts.P1 and P2. The counsel submitted

that Ext.P6 will not stand in the light of Exts.P4 and P5

judgments of the civil court, by which the 1st respondent

already withdrawn the suit. The Government Pleader submitted

that the tax is not accepted because of the pendency of the

suit. There was a dispute between the petitioners and the 1 st

respondent and that is why the tax was not accepted.

4. The contentions raised by the petitioners and the

Government Pleader are considered based on the documents.

Admittedly, Ext.P6 order was passed on 5.5.2006 and

thereafter, the civil court passed Exts.P4 and P5 judgments.

O.S.No. 631/2003 was filed for partition by the 1 st respondent

and O.S.No.527/2004 was filed by the 1st respondent for

injunction. Both the above suits were withdrawn by the 1 st

respondent with liberty to file a fresh suit. According to the

petitioners, no fresh suit is filed to their knowledge. In such

circumstances, there can be a direction to the authority

concerned to accept tax from the petitioners based on Exts.P1

and P2, if there is no other prohibitory orders from the civil

court. It is made clear that if there is any dispute about the

acceptance of tax from the petitioners, the affected parties can

approach the civil court and the decision of the civil court will

govern the issue. Mutation of property and acceptance of tax

will not by itself either create or extinguish title nor has it any

presumptive value on title and it only enables the person in

whose favour, the mutation has been accepted to pay the land

revenue in question (See :- Sawarni v. Inder kaur and others

[(1996) 6 SCC 223] and Larson T.George v. State of Kerala

[2019 (1) KLT 128]).

5. The Government Pleader submitted that since the

civil suits are pending before the civil court, the land tax was

not accepted from both parties. From the facts and

circumstances, this writ petition can be disposed of directing

the 3rd respondent to accept tax from the petitioners based on

Exts.P1 and P2, if there is no prohibitory orders from civil

court.

Therefore, this writ petition is disposed of in the following

manner :

1) The 3rd respondent is directed to accept tax from the

petitioners forthwith based on Exts.P1 and P2, if there is

no prohibitory orders from the civil court.

2) If there is any grievance to the 1st respondent or any other

aggrieved parties about the acceptance of tax from the

petitioners based on Exts.P1 and P2, they are free to

approach the civil court in accordance to law and in such

situation, the decision of the civil court will govern the

issue.