Thomas Philip vs State Of Kerala
2022 Latest Caselaw 5719 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        FRIDAY, THE 27TH DAY OF MAY 2022 / 6TH JYAISHTA, 1944
                        WP(C) NO. 6950 OF 2022
PETITIONER:

           THOMAS PHILIP, AGED 56 YEARS
           RESIDING AT KOLLAMMALIL HOUSE, PALM AVENUE, CHOONDY,
           ERUMATHALA, ALUVA-683112.

           BY ADVS.
           JOJU KYNADY
           A.ABDUL NABEEL



RESPONDENTS:

    1      STATE OF KERALA, REPRESENTED BY SECRETARY TO REVENUE,
           THIRUVANANTHAPURAM-695001.

    2      THE DISTRICT COLLECTOR,
           ALAPPUZHA-688001.

    3      THE TAHSILDAR,
           MANKOMBU, KUTTANADU TALUK, ALAPPUZHA-688502.

    4      THE VILLAGE OFFICER,
           MUTTAR, ALAPPUZHA-689574.

           SMT MABLE C KURIAN - SR GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 6950 OF 2022
                               2


                           JUDGMENT

The petitioner says that he, along with his two siblings,

had inherited the property involved in this case from his

parents, who had left Ext.P1 joint Will. He says that, however,

when he presented the said Will before the third respondent -

Tahsildar for transfer of Registry of the properties in his and

his siblings' names, it has been refused to be acted upon,

saying that the property has not been properly shown to be

divided and hence that the said Authority is incapacitated from

acting upon its terms.

2. On hearing the learned counsel for the petitioner on

the afore lines, I had directed him to produce a sketch showing

the demarcation of the properties between the legal heirs. The

same has been placed on record, along with the affidavit filed

by the petitioner dated 17.05.2022.

3. The learned Senior Government Pleader - Smt.Mable

C.Kurian, however, submitted that the Will does not say in what

manner the property has to be divided among the three sharers

and therefore, that the Tahsildar cannot act upon the

application of the petitioner alone. She, however, added, to a

pointed question from this Court, that a third party appears to WP(C) NO. 6950 OF 2022

be involved, but that unless the division of properties are

specifically made, transfer of Registry in favour of the

petitioner as asked for by him cannot be done.

4. From the afore stand adopted by the learned Senior

Government Pleader, it is clear that though the Tahsildar does

not stand in the way of the transfer of Registry of the property

in favour of the petitioner, he says that he is unable to do so

because the same has not been properly divided among him

and his two siblings.

5. The learned counsel for the petitioner - Sri.Joju Kynady,

affirms that there is no dispute between his client and two

siblings and that they had agreed to the demarcation of the

property as has been done through Ext.P7 sketch. He added

that since no one has disputed this, there would be no

prejudice to any person if Ext.P7 is acted upon by the Tahsildar.

6. I must say that I find some force in the afore

submissions of Sri.Joju Kynady because, until a third party

raises any claim over the property in question, the co-owners

can certainly agree to have its portions divided among

themselves in the manner as they require. There does not

appear to be any legal impediment in this because Ext.P1 Will

makes no contrary provision.

WP(C) NO. 6950 OF 2022

7. In the afore circumstances, I allow this writ petition to

the limited extent of directing the third respondent to hear the

petitioner, as also his siblings and if all the three agree, that

the transfer of Registry of the property covered by Ext.P1 be

done in the manner as shown in Ext.P7. Necessary action in

this regard shall be completed by the said Authority, after

verifying whether there are any third party interests. If no

such interests are attracted, then the afore action shall be

completed as expeditiously as is possible, but not later than

two months from the date of receipt of a copy of this judgment.

I make it clear that the afore action will be completed by

the third respondent at the sole risk and responsibility of the

petitioner and his siblings; and that if there is any claim

brought over the property in future, the said Authority shall

stand fully indemnified from its consequences, including

litigation.

Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 6950 OF 2022

APPENDIX OF WP(C) 6950/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF WILL DATED 26/04/2014 HAVING WILL NO.45/III/14.

Exhibit P2 DEATH CERTIFICATE DATED 19/11/2017 OF MARY KUTTY PHILIP ISSUED BY HOSPITAL.

Exhibit P3 DEATH CERTIFICATE DATED 15/02/2019 OF K.S.PHILIP ISSUED BY DEPARTMENT OF PANCHAYATH.

Exhibit P4 PETITION DATED 11/01/2022 SUBMITTED BEFORE THE 3RD RESPONDENT.

Exhibit P5 LAND TAX RECEIPT DATED 27/04/2021 ISSUED IN THE NAME OF K.S. PHILIP.

Exhibit P6 LAND TAX RECEIPT DATED 27/04/2021 ISSUED IN THE NAME OF MARY KUTTY.

Exhibit P7 TRUE COPY OF SKETCH DEMARCATING THE BOUNDARIES AS PER THE BOUNDARIES AS PER THE SCHEDULES IN WILL DATED 26.04.2014 BEARING WILL NO. 45/2014 OF SRO PULINCUNNU.