IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 CRP.No. 194 of 2010() --------------------- AA.137/2003 of APPELLATE AUTHORITY (LR), ALAPPUZHA SM.75/2000 of LAND TRIBUNAL, THIRUVANANTHAPURAM .................... REVN. PETITIONER(S): PETITIONER ------------------------------- CHRIST CHURCH, PALAYAM, TRIVANDRUM REPRESENTED BY CHURCH WARDENS, EIPE KURUVILLA AND JOHN KURIEN BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): --------------- 1. CICIL LOCKE, S/O.CLARENCE LOCKE T.C.NO.27/1542, RED CROSS ROAD, GENERAL HOSPITAL JUNCTION, TRIVANDRUM. ADDL.R2 IMPLEADED ADDL.R2: STATE OF KERALA, REP: BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. [IMPLEADED AS ADDL.R2 IN THE CRP AS PER ORDER DTD.24.5.2010 IN I.A.1016/2010 IN CRP 194/2010] ADV. SRI.P.C.HARIDAS FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ------------------------------ C.R.P.No.194 OF 2010 ------------------------------ Dated this the 3rd day of August, 2010 ORDER This revision arise from the order of Land Reforms Appellate Authority, Alappuzha (for short 'the Appellate Authority') in A.A.No.137 of 2003 confirming the order of assignment of landlords' right passed by the Land Tribunal, Thiruvananthapuram (for short the Tribunal) in S.M.No.75 of 2000. While the appeal was pending appellant (Cicilia Locke) died and thereon petitioner representing the Christ Church committee, Palayam, Trivandrum claiming to be the beneficiary under a Will executed by the original owner of the property-James Mc' Donald Sawyer sought impleadment in the appeal by filing I.A.No.88/2004. That application was opposed by the claimant in the Land Tribunal (Cicil Locke). The Appellate Authority dismissed the appeal holding that the Will is not probated, is not proved as provided under Section 68 of the Indian Evidence Act and that petitioner as a beneficiary cannot assert right over the estate of the deceased. The application and the appeal were dismissed. That order is under challenge in this revision. Learned counsel for C.R.P.No.194 OF 2010 2 petitioner contends that the Will was executed by the said James on 17.10.1972, it was deposited with the District Registrar and after death of said James on 21.12.1972 the Will was opened and registered as document No.36 of 1973. Later, as per order of District Court, Thiruvananthapuram in OP (LA) No.43 of 1973 probate was granted for the said Will. According to the learned counsel, one of the two executors mentioned in the Will expired and the other, one Jacob has given it in writing to the petitioner that he is not interested in acting as executor and hence, the only person left is the Church Committee which is the beneficiary under the Will. Hence, the Church Committee (petitioner) is entitled to come on record in the appeal and contest correctness of order passed by the Tribunal. Learned counsel for the respondent (Cicil Locke), claimant before Land Tribunal contends that the Will is hit by Section 118 of the Indian Succession Act (for short 'the Act'). It is also contended that petitioner cannot claim any right in the property in view of Section 211 and 216 of the said Act unless and until probate granted by the learned District Judge is cancelled or revoked and probate is obtained with right for petitioner as a beneficiary. 2. So far as contention that the Will in question is invalid is C.R.P.No.194 OF 2010 3 concerned, reference is made to Section 118 of the Act. But, that contention cannot stand in view of the decisions in Preman v. Union of India (1998(2) KLT 1004), John Vallamattom v. Union of India (2003(3) KLT 66) and Kathrikutty v. Pappoo (2005 (3) KLT 63). In these decisions, Section 118 of the Act has been held to be violative of Article 14 of the Constitution of India and hence has been struck down. Section 118 no more exist in the statute book. 3. Going by the Will in question and it is also not disputed petitioner is a beneficiary under it. No doubt respondent has a contention that there is no vesting of the estate with the petitioner even as per the terms of the said Will, but there is only a right to take, the sale proceeds of the property. According to the learned counsel for respondent, a life interest was created in favour of deceased appellant (before the Appellate Authority). Yet another contention is that one of the executors named in the Will is still alive and hence petitioner cannot claim benefit under the Will. In response it is contended by learned counsel for petitioner that the said executor, Jacob has given in writing by letter dated 20.1.2006 to the petitioner that he is not interested to continue as executor. These questions are not required to be C.R.P.No.194 OF 2010 4 decided in these proceedings since no evidence in that way was produced before Appellate Authority. Appellate Authority has merely stated that in view of Section 211 of the Act, petitioner cannot claim benefit under the Will. But, it is seen that the Appellate Authority has not even permitted the petitioner to come on record as additional appellant. I.A.No.88 of 2004 filed by the petitioner for impleadment has been dismissed by the Appellate Authority. Having regard to the facts and circumstances of the case, I am inclined to think that Appellate Authority ought to have allowed I.A.88 of 2004 and impleaded petitioner as additional appellant consequent to the death of original appellant. Other questions such as whether petitioner is entitled to succeed to the estate of the testator on any ground as contended by the learned counsel for the respondent are matters which the Appellate Authority has to decide on the evidence placed before that authority. 4. Having heard counsel on both sides, I am persuaded to think that I.A.88 of 2004 is required to be allowed. Consequently, the order of the Appellate Authority dismissing the appeal is also liable to be set aside. I make it clear that it will be open to the parties to adduce evidence before the Appellate Authority and C.R.P.No.194 OF 2010 5 raise all their contentions as to their entitlement to the S.M. schedule property. Resultantly, the revision petition is allowed in the following lines: a) Order on I.A. 88 of 2004 is set aside. That application will stand allowed. Petitioner is impleaded as additional appellant No.2 in the appeal before the Appellate Authority. Impleadment in the cause title of memorandum of appeal shall be carried out by the office of the Appellate Authority. b) Order dated 27.8.2008 in A.A.No.137 of 2003 of the Appellate Authority confirming the order of the Land Tribunal is set aside and that matter is remitted to the Appellate Authority for fresh decision as provided under law and in the light of the observations made above. The Appellate Authority shall issue notice to the petitioner and respondent before scheduling the appeal for hearing. THOMAS P.JOSEPH, JUDGE cms