Kerala High Court
A.P. Moosakutty vs State Of Kerala on 21 June, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 21ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946
WP(C) NO. 4679 OF 2022
PETITIONERS:
1 A.P. MOOSAKUTTY,
AGED 82 YEARS,
AKKARAPEEDIKA HOUSE, KALLANKUNNU, KALIKAVU,
MALAPPURAM DISTRICT,
PIN - 676 525.
2 FATHIMA,
AGED 76 YEARS, D/O. LATE A.P.MOOSAKUTTY, RESIDING AT
AKKARAPEEDIKA HOUSE, AAKKAKUNDU P O, KALIKAVU VILLAGE,
MALAPPURAM DISTRICT, PIN - 676 525.
3 ASSAINAR A.P, AGED 64 YEARS, S/O. LATE A.P.MOOSAKUTTY,
RESIDING AT AKKARAPEEDIKA HOUSE, AAKKAKUNDU P O,
KALIKAVU VILLAGE, MALAPPURAM DISTRICT, PIN - 676 525.
4 AYISHA, AGED 58 YEARS,
W/O. LATE A.P. MOOSAKUTTY, RESIDING AT AKKARAPEEDIKA
HOUSE, AAKKAKUNDU P.O., KALIKAVU VILLAGE, MALAPPURAM
DISTRICT, PIN - 676 525.
5 ABOOBACKER, AGED 56 YEARS,
S/O. LATE A.P. MOOSAKUTTY, RESIDING AT AKKARAPEEDIKA
HOUSE, AAKKAKUNDU P.O., KALIKAVU VILLAGE, MALAPPURAM
DISTRICT, PIN - 676 525.
6 AYISHA, AGED 55 YEARS, W/O.MOHAMMED ALI, VADKKUMKURAVAN
& D/O. LATE A.P.MOOSAKUTTY, RESIDING AT AKKARAPEEDIKA
HOUSE, AAKKAKUNDU P O, KALIKAVU VILLAGE, MALAPPURAM
DISTRICT, PIN - 676 525.
7 ASIYA UMMA, AGED 53 YEARS,
D/O. LATE A.P. MOOSAKUTTY, RESIDING AT AKKARAPEEDIKA
HOUSE, AAKKAKUNDU P.O., KALIKAVU VILLAGE, MALAPPURAM
DISTRICT, PIN - 676 525.
8 MOHAMMED, AGED 52 YEARS,
S/O. LATE A.P. MOOSAKUTTY, RESIDING AT AKKARAPEEDIKA
HOUSE, AAKKAKUNDU P.O., KALIKAVU VILLAGE, MALAPPURAM
DISTRICT, PIN - 676 525.
9 HAIDRU, AGED 49 YEARS,
S/O. LATE A.P. MOOSAKUTTY, RESIDING AT AKKARAPEEDIKA
WP(C) NO. 4679 OF 2022
2
HOUSE, AAKKAKUNDU P.O., KALIKAVU VILLAGE,
MALAPPURAM DISTRICT, PIN - 676 525.
10 MAYMUNA, AGED 44 YEARS,
D/O. LATE A.P. MOOSAKUTTY, RESIDING AT
AKKARAPEEDIKA HOUSE, AAKKAKUNDU P.O., KALIKAVU
VILLAGE, MALAPPURAM DISTRICT, PIN - 676 525.
11 JUBAID REHMAN A.P, AGED 22 YEARS,
S/O. LATE A.P. MOOSAKUTTY, RESIDING AT
AKKARAPEEDIKA HOUSE, AAKKAKUNDU P.O.,
KALIKAVU VILLAGE, MALAPPURAM DISTRICT,
PIN - 676 525.
12 JASEELA A.P., AGED 20 YEARS,
D/O. LATE A.P. MOOSAKUTTY, RESIDING AT
AKKARAPEEDIKA HOUSE, AAKKAKUNDU P.O., KALIKAVU
VILLAGE, MALAPPURAM DISTRICT, PIN - 676 525.
BY ADVS.
ABRAHAM P.GEORGE
M.SANTHY
RESPONDENTS:
1 STATE OF KERALA,
REP. BY SECRETARY TO GOVERNMENT ,REVENUE
DEPARTMENT, GOVERNMENT SECRETARIATE,
THIRUVANANTHAPURAM,
ERNAKULAM, PIN - 695 001.
2 DISTRICT COLLECTOR MALAPPURAM DISTRICT,
CIVIL STATION, MALAPPURAM, PIN - 676 505.
3 TAHSILDAR, NILAMBOOR TALUK,
TALUK OFFICE, NILAMBOOR, PIN - 679 329.
4 VILLAGE OFFICER,
KALIKAVU VILLAGE, KALIKAVU, PIN - 676 525.
5 FATHIMA,
AGED 76 YEARS,
W/O A.P. MOHAMMED @ BAPPU HAJI, AKKARAPEEDIKA
HOUSE, ADAKKAKKUNDU P.O, KALIKAVU, MALAPPURAM
DISTRICT, PIN - 676 525.
WP(C) NO. 4679 OF 2022
3
6 PATHUMMA,
AGED 71 YEARS,
W/O. HASSAN, CHOONDIYEN MOOCHI HOUSE, ADAKKAKUNDU
P.O, KALIKAVU, MALAPPURAM DISTRICT, PIN - 676 525.
BY ADVS.
SMT.THUSHARA JAMES, SR.GP
SRI. R.RAMADAS (FOR R4 & R5)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.06.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 4679 OF 2022
4
JUDGMENT
This writ petition was filed challenging Ext.P8 legal heirship
certificate dated 19.06.2019 issued by the Tahsildar, Nilambur
certifying that the respondents 5 and 6 are the legal heirs of late
A.P.Mohammed Alias Bappu Haji, Akkarapeedika House,
Adakkakund P.O., Kalikavu Village (hereinafter referred to as 'the
deceased'). The original writ petitioner, who died during pending
proceedings before this Court claims to be one of the legal heirs of the
deceased (along with respondents 5 and 6) in accordance with the
personal law applicable to the parties. The original writ petitioner
claimed that he was the grandson of the brother of the great-
grandfather of the deceased. According to him under Mohammedan
Law, since the deceased did not have any children or male heirs,
1/4th of the properties and other assets of the deceased would
devolve on him. It is therefore contended that Ext.P8 certificate
issued by the Tahsildar, Nilambur was incompetent and was issued
without conducting proper enquiry.
2. The learned counsel appearing for the petitioner submits that
the application for legal heirship certificate was filed jointly by
respondents 5 and 6 and the original writ petitioner supported by the
WP(C) NO. 4679 OF 2022
affidavit of two individuals certifying that the original writ petitioner,
and respondents 5 and 6 to be the legal heirs of the deceased. It is
submitted that thereafter, the original writ petitioner was
surreptitiously removed from the list of legal heirs after obtaining
Ext.P4 legal opinion from the District Government Pleader. It is
submitted that Ext.P4 legal opinion proceeds on the basis that the
original writ petitioner had not produced any document to show that
he was related to the deceased in the unbroken male line. It is
submitted that the original writ petitioner was never called upon to
produce any document. It is submitted that a proper enquiry had to
be conducted by the Tahsildar and the Tahsildar could not have
proceeded on the basis of Ext.P4 legal opinion to issue Ext.P8 legal
heirship certificate finding that respondents 5 and 6 were the only
legal heirs of the deceased. It is submitted that in almost similar
circumstances, a learned Single Judge of this Court in Subramanian
v. District Collector, Palakkad and Others [2015(1) KLT 191] had set
aside a legal heirship certificate on the finding that a person had been
wrongly included in the legal heirship certificate. It is submitted that
on the same principle, Ext.P8 legal heirship certificate is also to be set
aside. The learned counsel for the petitioner also relied on an
unreported judgment of a learned Single Judge of this Court in W.P.
WP(C) NO. 4679 OF 2022
(C)No.17858 of 2024 to contend that it is well within the jurisdiction
of this Court under Article 226 of the Constitution of India to set
aside Ext.P8.
3. The learned counsel appearing for respondents 5 and 6
would submit that the writ petition is not maintainable before this
Court. It is submitted that there is clear suppression of material facts.
It is submitted that the original writ petitioner was assisting the
deceased and was aware of the fact that the deceased was a Manager
of the aided school and had also other substantial assets. It is
submitted that under the guise of helping respondents 5 and 6, who
are presently aged 78 and 73 years respectively, the original writ
petitioner had surreptitiously filed an application for legal heirship
certificate including his name also as one of the legal heirs. It is
submitted that the contention that no proper enquiry was conducted
by the Tahsildar before issuing Ext.P8 cannot be sustained as Ext.P8
was preceded by Ext.P5 Gazette notification to which the original writ
petitioner did not file any objection. It is submitted that there is clear
suppression of material facts as the original writ petitioner had filed
O.S.No.33/2019 before the Subordinate Judges Court, Manjeri for
partition. It is submitted that the said suit was dismissed by the order
produced as Ext.R5(c) along with I.A No.1/2024 on the counsel for
WP(C) NO. 4679 OF 2022
the plaintiff / supplemental plaintiffs reporting no instructions [The
additional petitioners 2 to 12 had also got themselves impleaded as
supplemental plaintiffs in O.S.No.33/2019]. It is submitted with
reference to the judgment of the Supreme Court in Moti Lal Songara
v. Prem Prakash Alias Pappu and Another [(2013) 9 SCC 199] that a
person who has clearly suppressed material facts while filing the writ
petition is not entitled to any relief especially in a petition filed under
Article 226 of the Constitution of India. It is submitted that there is
absolutely nothing on record to show that any relationship as
asserted by the original writ petitioner existed between the deceased
and the original writ petitioner. It is submitted that even if any
relationship between the deceased and the original writ petitioner is
admitted, the relationship is so distant that it is impossible for this
Court to determine that the original writ petitioner was the only male
legal heir in the unbroken male line of the family of the deceased, on
the date of his death. It is submitted that such matters cannot,
therefore, be adjudicated in a writ petition under Article 226 of the
Constitution of India.
4. The learned counsel appearing for the petitioner, in reply
would submit that there is absolutely no question of any suppression
of material facts. He relies on the judgment of the Supreme Court in
WP(C) NO. 4679 OF 2022
Arunima Baruah v. Union of India and Others [(2007) 6 SCC 120] to
contend that whether or not there is a suppression will depend on the
facts and circumstances of each case and only where a fact which is
material for the purpose of determination of the lis is suppressed can
it be even suggested that there is suppression of a material fact. In
other words, it is submitted that since the challenge in this writ
petition is to Ext.P8 legal heirship certificate and since the suit was
one for partition, it cannot be even suggested that there was any
suppression of material fact by not disclosing the filing of the suit in
the present writ petition. It is also submitted that the submission of
the learned counsel for respondents 5 and 6 that the petitioner had
not raised any objection following Ext.P5 Gazette notification is
incorrect as the petitioner had filed Ext.P6 objection before the
Tahsildar after he came to know that Ext.P5 Gazette notification had
been issued excluding him from the list of legal heirs. It is submitted
that in such circumstances, the writ petition is to be allowed and
Ext.P8 legal heirship certificate is liable to be set aside.
Having heard the learned counsel appearing for additional
petitioners 2 to 12, the learned Government Pleader appearing for the
official respondents and the learned counsel appearing for
respondents 5 and 6, I am of the opinion that the petitioner has not
WP(C) NO. 4679 OF 2022
made out any case for grant of any relief in the present writ petition.
The original writ petitioner (now deceased) claimed to be the
grandson of the brother of the great-grandfather of the deceased.
According to him, he was the only male legal heir in the unbroken
male line of the deceased. While there is no material to suggest this,
even if this assertion were to be correct, this is a question that will
have to be determined by a competent Civil Court and cannot be
determined in a writ petition under Article 226 of the Constitution of
India. The procedure before this Court is not suited to the
determination of questions such as these, as evidence in this Court is
in the form of affidavit and this Court does not adjudicate disputed
questions of fact. That apart, in the facts of the present case it appears
that the original writ petitioner had filed O.S.No.33/2019 before the
Subordinate Judges Court, Manjeri seeking partition on the ground
that he was one of the legal heirs of the deceased. Additional
petitioners 2 to 12 had also got themselves impleaded as
supplemental plaintiffs in O.S.No.33/2019 on the death of the
original writ petitioner. The suit has been dismissed on the counsel
for the plaintiff / supplemental plaintiffs reporting no instructions.
The writ petition is blissfully silent about the fact of filing of the suit
for partition. This, in my view, is a clear suppression of material facts.
WP(C) NO. 4679 OF 2022
Paragraph 19 of the judgment Moti Lal Songara (supra) reads thus:-
"19.The second limb of the submission is whether in
the obtaining factual matrix, the order passed by the High
Court discharging the respondent-accused is justified in law.
We have clearly stated that though the respondent was fully
aware about the fact that charges had been framed against
him by the learned trial Judge, yet he did not bring the same
to the notice of the Revisional Court hearing the revision
against the order taking cognizance. It is a clear case of
suppression. It was within the special knowledge of the
accused. Anyone who takes recourse to method of
suppression in a court of law, is, in actuality, playing fraud
upon the court, and the maxim suppressio veri, expressio
falsi i.e. suppression of the truth is equivalent to the
expression of falsehood, gets attracted. We are compelled to
say so as there has been a calculated concealment of the fact
before the Revisional Court. It can be stated with certitude
that the respondent-accused tried to gain advantage by such
factual suppression. The fraudulent intention is writ large. In
fact, he has shown his courage of ignorance and tried to play
possum."
In the facts of the present case, the fact that the original writ
petitioner had filed a suit for partition was a material fact and ought
to have been brought to the notice of this Court while seeking a relief
for setting aside Ext.P8 legal heirship certificate. Therefore, the
principle in Arunima Baruah (supra) on which considerable reliance
was placed by the learned counsel for the petitioner does not come to
WP(C) NO. 4679 OF 2022
the aid of the petitioner. The decision of this Court in Subramanian
(supra) shows that the only question before this Court was whether
the father of a deceased Hindu female died intestate would be a legal
heir under the provisions of the Hindu Succession Act. That was also
a case where the father who was named as a legal heir himself
approached this Court to remove his name from the list of legal heirs.
It was in such circumstances that this Court set aside the legal
heirship certificate showing the father also as a legal heir. In the facts
of the present case and as already noted above, the original writ
petitioner claims to be the grandson of the brother of the great-
grandfather of the deceased. Whether or not such a far-flung
relationship (even if this is true) would constitute the original writ
petitioner as the only male heir in the unbroken male line of the
deceased is certainly a question of fact which cannot be determined
by this Court in a writ petition under Article 226 of the Constitution
of India. In the judgment in W.P(C)No.17858 of 2024 also there was
no complicated question of fact to be determined and this Court
being convinced that certain names had been wrongly included in the
legal heirship certificate had set it aside. This is not the case in the
facts of the present case.
In the light of the above, the writ petition fails and it is
WP(C) NO. 4679 OF 2022
accordingly dismissed. Though I have found that there was a wilful
suppression of material facts, I refrain from imposing exemplary
costs as the original writ petitioner is no more.
Sd/-
GOPINATH P.
JUDGE
DK
WP(C) NO. 4679 OF 2022
APPENDIX OF WP(C) 4679/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTOCOPY OF THE DEATH CERTIFICATE
OF A. P.MUHAMMED @ BAPPU HAJI DATED
06/12/2018 BY THE REGISTRAR OF BIRTHS
AND DEATHS WANDOOR GRAMA PANCHAYATH.
Exhibit P2 TRUE PHOTOCOPY OF THE APPLICATION
SUBMITTED BY THE 5TH RESPONDENT DATED
15/12/2018 BEFORE THE 3RD RESPONDENT
Exhibit P2(a) TRUE PHOTOCOPY OF THE SUPPORTING
AFFIDAVIT FILED BY MR KHALID PRODUCED
ALONG WITH EXHIBIT P2 APPLICATION
Exhibit P2(b) TRUE PHOTOCOPY OF THE SUPPORTING
AFFIDAVIT FILED BY ZAKEER HUSSAIN
PRODUCER ALONG WITH EXHIBIT P2
APPLICATION
Exhibit P3 TRUE PHOTOCOPY OF THE A REPORT DATED
28/01/2019 SUBMITTED BY THE VILLAGE
OFFICER, KALIKAVU
Exhibit P4 TRUE PHOTOCOPY OF THE LEGAL OPINION
GIVEN BY THE GOVERNMENT PLEADER MANJERI
DATED 03.06.2019
Exhibit P5 TRUE PHOTOCOPY OF THE NOTIFICATION
PREPARED AND FORWARDED TO THE GOVERNMENT
PRESS (OBTAINED UNDER RIGHT TO
INFORMATION ACT) DATED 06.02.2019 FROM
THE OFFICE OF THE 3RD RESPONDENT.
Exhibit P6 TRUE PHOTOCOPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
TAHASILDAR, NILAMBOOR DATED 5.4.2019
(SUBMITTED ON 9.4.2019)
Exhibit P6(a) TRUE PHOTOCOPY OF THE GENEALOGY OF THE
PETITIONER AND THAT OF THE DECEASED AS
PER MUSLIM SHARIAT LAW.
Exhibit P7 TRUE PHOTOCOPY OF THE STATEMENT DATED
14/05/2019 OF THE PETITIONER RECORD BY
THE 3RD RESPONDENT
WP(C) NO. 4679 OF 2022
Exhibit P8 TRUE PHOTOCOPY OF ORDER NO. B3-1310/2019
DATED 19.06.2019-LEGAL HEIRSHIP
CERTIFICATE ISSUED IN FAVOUR OF THE
RESPONDENTS 5 AND 6 BY THE 3RD
RESPONDENT
Exhibit P9 TRUE PHOTOCOPY OF NOTICE DATED
08.12.2021 ISSUED TO THE PETITIONER BY
THE 3RD RESPONDENT
Exhibit P10 TRUE PHOTOCOPY OF COMMUNICATION/ NOTICE
DATED 13.01.2022 TO THE PETITIONER FROM
THE OFFICE OF THE 2ND RESPONDENT.
RESPONDENT EXHIBITS
Exhibit R5(a) TRUE COPY OF THE PLAINT DATED 01.07.2019
IN O.S.NO.33/2019 ON THE FILE OF SUB
COURT MANJERI.
Exhibit R5(b) TRUE COPY OF THE ORDER DATED 8.2.2022 OF
THE SUB COURT, MANJERI IN
O.S.NO.33/2019.
Exhibit R5(c) TRUE COPY OF THE THE ORDER DATED
04.01.2024 IN O.S. NO. 33/2019 ON THE
FILE OF THE SUB COURT, MANJERI
Exhibit R5(d) TRUE COPY OF THE RELEVANT PAGE OF THE
KERALA VILLAGE MANUAL
Exhibit R5(e) TRUE COPY OF THE GOVERNMENT ORDER
NO.18939/T2/2008/REVENUE DATED
31.07.2009
Exhibit R3(a) TRUE COPY OF THE RELEVANT PAGES OF
KERALA GAZETTE DATED 26.02.2019
Exhibit R3(b) TRUE COPY OF THE NOTICE DATED 03.05.2019
Exhibit R3(c) TRUE COPY OF THE RELEVANT PAGES OF THE
MANUAL
