IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 WP(C).No. 22670 of 2010(G) -------------------------- PETITIONER(S): --------------- 1. JOMON, S/O.LATE K.V.JOSEPH @ KOCHOUSEPH HOUSE NO.III/639(OLD NO.II/144),KIRIYANTHAN HOUSE, NARAKKAL GRAMA PANCHAYATH, NARAKKAL VILLAGE, KOCHI TALUK, ERNAKULAM, DISTRICT PIN-682505. 2. ALEKUTTY @ KUNJU, ALEYKUTTY, W/O.LATE K.V.JOSEPH @ KOCHOUSEPH',HOUSE NO.III/639 (OLD NO.II/144)KIRIYANTHAN HOUSE, NARAKKAL GRAMA PANCHAYATH, NARAKKAL VILLAGE, KOCHI TALUK, ERNAKULAM, DISTRICT PIN-682505. BY ADV. SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) RESPONDENT(S): --------------- 1. NARAKKAL GRAMA PANCHAYATH,NARAKKAL VILLAGE,KOCHI TALUK, ERNAKULAM DISTRICT PIN-692505 REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, NARAKKAL GRAMA PANCHAYATH NARAKKAL VILLAGE, KOCHI TALUK ERNAKULAM DISTRICT PIN-682505. BY ADV. SRI.PHILIP T.VARGHESE FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.22670 OF 2010 EXT.P1 TRUE PHOTO COPY OF DEATH CERTIFICATE ISSUED BY THE RESPONDENT PANCHAYAT CERTIFYING THE DEATH OF K.V.JOSEPH (DOD 20.2.2005) EXT.P2 TRUE PHOTO COPY OF THE BUILDING TAX RECEIPT IN RESPECT OF BUILDING NOS.111/3,4 AND 5 ISSUED BY THE FIRST RESPONDENTs DATED 29.3.2010 EXT.P3 TRUE PHOTO COPY OF BUILDING TAX RECEIPT IN RESPECT OF BUILDING NO.111/5(A) ISSUED BY THE FIRST RESPONDENT. EXT.P4 TRUE PHOTO COPY OF BUILDING TAX RECEIPT IN RESPECT OF BUILDING NO.11/80 ISSUED BY THE FIRST RESPONDENT. EXT.P5 TRUE PHOTO COPY OF BUILDING TAX RECEIPT IN RESPECT OF BUILDING NO.11/81 ISSUED BY THE FIRST RESPONDENT. EXT.P6 TRUE PHOTO COPY OF BUILDING TAX RECEIPT IN RESPECT OF BUILDING NO.11/80 (A) ISSUED BY THE FIRST RESPONDENT. EXT.P7 TRUE PHOTO COPY OF BUILDING TAX RECEIPT IN RESPECT OF BUILDING NO.11/80(B) ISSUED BY THE FIRST RESPONDENT. EXT.P8 TRUE PHOTO COPY OF BUILDING TAX RECEIPT IN RESPECT OF BUILDING NO.11/144 ISSUED BY THE RESPONDENT DATED 29.3.2010 EXT.P9 TRUE PHOTO COPY OF WILL NO.1622004 SRO NJARAKKAL EXECUTED BY JOSEPH AND EALIKUTTY. EXT.P10 TRUE PHOTO COPY OF AFFIDAVIT DT. 5.4.2010 EXECUTED BY THE SECOND PETITIONER ALONG WITH HER OTHER SON AND DAUGHTERS BEFORE NOTARY PUBLIC. EXT.P11 TRUE PHOTO COPY OF APPLICATION DT. 20.5.2010 FOR CHANGE OF NAME OF OWNERSHIP FILED BY FIRST PETITIONER BEFORE THE SECOND RESPONDENT PANCHAYAT SECRETARY. EXT.P12 TRUE PHOTOSTAT COPY OF THE RECEIPT DT. 21.5.2010 BEARING NO.3334 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P13 TRUE PHOTO COPY OF ORDER DT. 11.6.2010 IN PROCEEDING NO. A4-3334/10-11 ISSUED BY THE 2ND RESPONDENT. EXT.P14 TRUE PHOTOSTAT COPY OF THE APPEAL DT. 21.6.2010 FILED BY THE FIRST PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P15 PHOTOSTAT COPY OF THE ORDER DT. 12.7.2010 IN PROCEEDING NO.A4-3929/10-11 SIGNED BY THE 2ND RESPONDENT ISSUED TO THE PETITIONER. //TRUE COPY// P.A. TO JUDGE. P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.22670 of 2010 ------------------------------- Dated this the 16th day of November, 2010 J U D G M E N T The first petitioner is the son and second petitioner is the wife of late K.V.Joseph. The second petitioner along with her husband (father of the first petitioner) had executed Ext.P9 Will dated 12.10.2004, registered as Document No.162/2004 of Sub Registrar's Office, Njarakkal, bequeathing their separate properties in favour of their children. The first petitioner is one among the legatees under the said Will. As per the said Will, a large number of shop rooms owned by the first petitioner's father in Njarakkal Grama Panchayat were bequeathed to him. The first petitioner's father passed away on 20.2.2005. Long thereafter, he submitted the original of Ext.P11 application dated 20.5.2010 to the Secretary of Njarakkal Grama Panchayat requesting him to register the change of ownership in respect of the different shop rooms in his favour and the ownership of residential building bearing door No.111/639 of Njarakkal Panchayat, jointly standing in the name of his late father and the second petitioner mother by substituting his name as the joint owner in the place of his father. As directed by the Secretary of Grama Panchayat, the petitioner had submitted Ext.P10 affidavit sworn to by his brothers, sisters and mother, wherein they had declared that they W.P.(C) No.22670/2010 2 have no objection in Ext.P11 being entertained. The Secretary of Njarakkal Grama Panchayat rejected Ext.P11 application on the ground that Ext.P9 Will will take effect only when both the parents pass away. Aggrieved thereby, the first petitioner filed an appeal before the Committee of the Panchayat under rule 17(2) of the Kerala Panchayat Raj (Building Tax & the Surcharge Thereon) Rules, 1996. By Ext.P15 order passed on 12.7.2010, the said appeal was rejected on the ground that Ext.P9 is a mutual Will. Exts.P13 and P15 are under challenge in this writ petition wherein the petitioners seek a direction to the respondents to effect transfer of registry as prayed for in Ext.P11 application. 2. The respondents have been served and they have entered appearance through the counsel. A counter affidavit dated 27.9.2010 has also been filed on behalf of the respondents wherein also, it is contended that Ext.P9 is a mutual Will. Relying on the recitals in the Will, it is contended that the bequest will take effect only on the death of both the testators. 3. I heard Sri.M.P.Ramnath, learned counsel appearing for the petitioners and Sri.Philip.T.Varghese, learned counsel appearing for the respondents. It is evident from the recitals in W.P.(C) No.22670/2010 3 Ext.P9 Will that the separate properties of the testators have been bequeathed to the first petitioner. The first petitioner's father passed away on 20.2.2005. While the petitioner contends that the Will took effect on that day, in so far as it relates to the properties of his father and his share in the joint properties, the Panchayat has taken the stand that it is a mutual Will and will take effect only on the death of both the testators. I am afraid the said contention cannot be sustained. 4. The Apex Court has in Kochu Govindan Kaimal v. Lakshmi Amma (AIR 1959 SC 71) held that a Will is mutual when two testators confer upon each other reciprocal benefits, by either of them constituting the other his legatee. It was further held that when the executants fill the roles of both testator and legatee towards each other, the Will becomes a mutual Will and that where the legatees are distinct from the testators, there can be no question of mutual Will. The Apex Court held that when there are three executants to a Will and each of them possesses properties which were his or her self- acquisitions or jointly acquired, on the death of each testator, the legatees would be entitled to the properties of the testator who dies. In the light of the authoritative pronouncement of the Apex Court in W.P.(C) No.22670/2010 4 Kochu Govindan Kaimal v. Lakshmi Amma (supra), the stand taken by the respondents in Exts.P13 and P15 cannot be sustained. Apart from stating that Ext.P9 Will is a mutual Will and therefore the request cannot be considered, the respondents have not pointed out any reason why the request made in Ext.P11 cannot be granted. In the result, I allow the writ petition, quash Exts.P13 and P15 and direct the second respondent to effect transfer of registry as prayed for in Ext.P11 application. Final orders in the matter shall be passed expeditiously and in any event, within two weeks from the date on which the petitioners produce a certified copy of this judgment before the second respondent. P.N. RAVINDRAN, JUDGE. nj.