Mariamma Varkey vs State Of Kerala
2023 Latest Caselaw 9148 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
     WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                       WP(C) NO. 26503 OF 2023
PETITIONER:

          MARIAMMA VARKEY,
          AGED 79 YEARS,
          W/O LATE VARKEY K.V, KURIYANNUPARAMBIL VILLOONNI P.O.
          AARPOOKARA VILLAGE, KOTTAYAM - 686 008.
          BY ADVS.
          HARISH ABRAHAM
          JOSEPH ABRAHAM (KOTTAYAM)


RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY CHIEF SECRETARY,
          THIRUVANANTHAPURAM - 695 001.
    2     THE VILLAGE OFFICER,
          VILLAGE OFFICE AARPOOKARA AARPOOKARA,
          KOTTAYAM- 686 008.
    3     THE SUB REGISTRAR,
          REGISTRATION DEPARTMENT,
          OFFICE OF THE SUB REGISTRAR,
          ETTUMANOOR, KOTTAYAM - 686 631.


          SMT. PREETHA K K (SR GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 26503 OF 2023
                                     2



                               JUDGMENT

The petitioner is a senior citizen and a widow. The petitioner and

her husband (late Varkey K.V) jointly owned the property covered by

Ext.P1 document executed as sale deed No.1373/1969 of Ettumanoor

SRO. Tax was being paid in the names of the petitioner and her late

husband as is evident from Exts.P2 and P3. The petitioner along with

her late husband had executed a registered will (Will No.62/2001

dated 10.07.2001 registered at the Ettumanoor SRO). The husband of

the petitioner died on 21.09.2001. The learned counsel appearing for

the petitioner would submit that in terms of Ext.P4 Will, the rights of

her late husband in the property would devolve on the petitioner and

after the death of the petitioner, if anything survives, the property

would devolve in the manner set out in the Will. The petitioner's

application for effecting mutation in her name has been denied on two

grounds. The first ground is that the petitioner has not been able to

produce the original of Ext.P4 Will and also on the ground that a

person who might be the beneficiary in terms of the Will has raised an

objection that if mutation is permitted in the name of the petitioner,

the petitioner will be in a position to sell the property. WP(C) NO. 26503 OF 2023

2. The learned Government Pleader seeks further time to get

instructions. However, considering the nature of the order that I

propose to pass, I am of the view that this writ petition need not be

adjourned to enable the learned Government Pleader to obtain

instructions.

3. The objection raised by the 2nd respondent that the

petitioner has not been able to produce the original of the Will is no

ground to deny mutation. The Will is admittedly a registered

document. In the absence of the original of the Will, a certified copy of

the Will can be produced and the application for mutation can be

considered in terms of the stipulations contained in the Will. The

Village Officer shall therefore take on record the application filed by

the petitioner for effecting mutation along with a certified copy of the

registered Will and if it is found that in terms of the Will, the property

of the petitioner's late husband will devolve absolutely on her, the 2 nd

respondent shall effect mutation of the properties in question in

favour of the petitioner. The objection raised by one of the

beneficiaries (daughter of the petitioner and late Varkey.K.V) that the

petitioner might sell off the properties if mutation is effected in her

favour cannot be a ground to deny mutation if the property of the late WP(C) NO. 26503 OF 2023

husband of the petitioner also devolves on the petitioner in terms of

Ext.P4 Will. The Village Officer shall therefore decide the question as

to whether mutation can be effected in favour of the petitioner by

taking on record a certified copy of the Will and affording an

opportunity of hearing to the petitioner as also to the aforesaid

objector, within period of two months from the date of receipt of a

certified copy of this judgment.

The writ petition will stand disposed of as above.

Sd/-

GOPINATH P.

JUDGE DK WP(C) NO. 26503 OF 2023

APPENDIX OF WP(C) 26503/2023

PETITIONER EXHIBITS Exhibit P1 CERTIFIED COPY OF THE SALE DEED NO.1373/1969 DATED 15.04.1969, ETTUMANOOR SRO Exhibit P2 TRUE COPY OF THE OWNERSHIP CERTIFICATE NO. 5247/1977 DATED 12.06.1976 ISSUED BY THE KOTTAYAM SPECIAL TRIBUNAL Exhibit P3 TRUE COPY OF THE LATEST TAX RECEIPT NO.KL05030310581/2022 DATED 22.12.2022 Exhibit P4 CERTIFIED COPY OF THE REGISTERED WILL NO.

62/2001 DATED 10.07.2001 Exhibit P5 TRUE COPY OF THE DEATH CERTIFICATE DATED 01.10.2001 ISSUED BY THE REGISTRAR OF BIRTH AND DEATHS Exhibit P6 TRUE COPY OF THE LIST CERTIFICATE NO.3689/2023 ID NO. P26127878 DATED 17.04.2023 ISSUED BY THE SUB-REGISTRAR'S OFFICE ETTUMANOOR Exhibit P7 TRUE COPY OF THE NEWSPAPER PUBLICATION DATED 11.07.2023 WILL IN THE KOTTAYAM EDITION OF MANGALAM NEWSPAPER Exhibit P8 TRUE COPY OF THE LETTER NO.313/23 DATED 26.06.2023 ISSUED BY THE VILLAGE OFFICER, AARPOOKARA Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 20.07.2023 SUBMITTED BY THE PETITIONER Exhibit P10 TRUE COPY OF THE LETTER NO.351/2023 DATED 21.07.2023 ISSUED BY THE 2ND RESPONDENT Exhibit P11 TRUE COPY OF THE OBJECTION RAISED BY THE DAUGHTER OF THE PETITIONER DATED 04.07.2023 OBTAINED THROUGH RIGHT TO INFORMATION ACT ON 26.07.2023