IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 WP(C).No. 13454 of 2009(B) ---------------------------------------- PETITIONER(S): ------------------------ 1. SMT. LEELADEVI, D/O. SMT. RADHAMANI AMMA, KEEZHOOTTUVEETTIL, KANNANKARA, KALANJOOR. 2. K.G. RAJENDRA KURUP, SON OF LATE GANGADHARAN NAIR, KEEZHOOTTUVETTIL, KANNANKARA, KALANJOOR. 3. SUDHA DEVI, D/O. SMT. RADHAMANI AMMA, KEEZHOOTTUVETTIL, KANNANKARA, KALANJOOR. 4. K.G. SATHEESH, SON OF LATE GANGADHARAN NAIR, KEEZHOOTTUVEETTIL, KANNANKARA, KALANJOOR. BY ADVS. MR.S.EASWARAN, MR.P.MURALEEDHARAN (IRIMPANAM). RESPONDENT(S): --------------------------- THE VILLAGE OFFICER, KALANJOOR VILLAGE, KALANJOOR, PATHANAMTHITTA. BY GOVERNMENT PLEADER MR. P.N.SANTHOSH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13454/2009 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF FAMILY MEMBERSHIP CERTIFICATE DTD. 12/10/2004 ISSUED BY THE RESPONDENT. P2: COPY OF PROPERTY TAX RECEIPT DTD. 20/06/2008 ISSUED BY THE RESPONDENT EVIDENCING PAYMENT OF PROPERTY TAX BY THE 1ST PETITIONER. P3: COPY OF ...DO.....DO..... 2ND PETITIONER. P4: COPY OF ....DO...DO.......3RD PETITIONER. P5: COPY OF ....DO...DO.......4TH PETITIONER. P6: COPY OF ....DO........ DTD. 29/06/07 EVIDENCING PAYMENT OF PROPERTY TAX BY THE SUBSEQUENT PURCHASER. P7: COPY OF LAWYERS NOTICE DTD. 27/04/2009 ISSUED ON BEHALF OF THE PETITIONERS AND ADDRESSED TO THE RESPONDENT. RESPONDENT'S EXHIBITS: R1(A): COPY OF LETTER FROM DEBT RECOVERY TRIBUNAL, ERNAKULAM. R1(B): COPY OF THE RECOVERY PROCEEDINGS. R2(C): COPY OF THE LETTER OF THE SOUTH INDIAN BANK. R2(D): COPY OF THE CIRCULAR ISSUED BY THE ADDITIONAL COMMISSIONER, LAND RECENUE, THIRUVANANTHAPURAM. /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI,J. ------------------------- W.P ( C) No. 13454 of 2009 -------------------------- Dated this the 27th July,2009 J U D G M E N T The predecessor in interest, the father of the petitioners availed a loan from the South Indian Bank Ltd. He had created a mortgage in relation to the property belonging to him having an extent of 1 acre and 46 cents comprised in different survey numbers in Kalanjoor village. On the death of Gangadharan Nair, original owner of the property, the petitioners partitioned the property as per Partition Deed No.395/1998. They then moved the competent authority under the Transfer of Registry Rules. Mutation of the different shares was effected in the name of the petitioners and they paid tax as well. South Indian Bank Ltd had approached the Civil Court for recovery of amounts due from Gangadharan Nair and the Civil Court passed a decree for realisation of the amount. Proceedings in execution was later transferred to the Debts Recovery Tribunal, Ernakulam. W.P ( C) No. 13454 of 2009 2 According to the petitioner, further proceedings before the Debt Recovery Tribunal, as evidenced by O.A 217/2004 is without jurisdiction and nonest since legal heirs of Gangadharan Nair, namely, the petitioners herein, were not made parties thereto. The certificate of recovery was issued in favour of South Indian Bank Ltd and apparently steps are still pending before the Recovery Officer. 2., In the meanwhile, petitioners by different documents executed in the year 2009 assigned the property in favour of different strangers and assignment deeds were produced before the Village Officer for mutation under the Transfer of Registry Rules. The Village Officer refused to register the transfer. Hence this writ petition. 3. An interim order was passed by this Court to the following effect: “There will be an interim order directing the respondent to accept the basic tax after effecting mutation within three weeks from the date on which a copy of the order is served on the respondent. If the respondent has any objection in this regard, he shall file an affidavit affirming such objection, within the said period and W.P ( C) No. 13454 of 2009 3 move for variation of this order.” 4. Later, a counter affidavit has been filed by the Village Officer. He also sought for modification of the interim order. The stand taken therein that the property was mortgaged in favour of the South Indian Bank Ltd, which is the decree holder in a proceedings initiated before the Civil Court. The same was later transferred to the Debts Recovery Tribunal and there is subsisting mortgage over the property. In such circumstances, it is not possible to effect mutation. 5. A reply affidavit has been filed by the petitioner. 6. Heard Sri.Easwaran, learned counsel for the petitioners and learned senior Government Pleader Sri.P.N. Santhosh. 7. Sri.Easwaran submits that the Village Officer is only concerned with effecting mutation under the Transfer of Registry Rules and he is not concerned with the subsisting mortgage of the property or any other fact which might cast a restraint on the right of the title holder to alienate the property. He also relies on the judgment of W.P ( C) No. 13454 of 2009 4 this Court in Kuriakose Elias Trust for Communication and Development Vs. Principal Secretary, Department of Revenue and Others,.[2009 (2) KHC 602] . It has been held by this Court that entries in Thandaper Register or under the Transfer of Registry Rules are only for fiscal purpose to enable the State and Land Revenue to collect the land revenue from the person in possession and do not either to indicate or convey title to the land in favour of any person. Reliance is placed in this regard on the judgment in State of U.P. Vs. Amar Singh [JT 1996 (10) SC 43] as well. It is contended notwithstanding the claim made by the South Indian Bank Ltd that Sri.Gangadharan Nair the predecessor in interest of the petitioners had created a mortgage of the property by deposit of title deeds. subsequent alienation made by the petitioners' legal heirs having obtained title to the same under a partition which was also recognized by the revenue authorities, should be acted upon and recognised by the Revenue authorities. 8. It is true that the entries in the record of rights or thandaper register as the case may be are essentially W.P ( C) No. 13454 of 2009 5 intended for fiscal purpose. Ultimately, the dispute regarding title to the property will have to be resolved by the Civil Court. 9. Here is a case where the original owner of the property had created a mortgage over the same. The mortgage has not been redeemed so far. Petitioners succeeded to the property by operation of law. There was no transfer of interest involved in the subsequent partition amongst them. There is nothing wrong in the Village officer acting on the strength of the partition, if the status of the legal heirs of Gangadharan Nair was not a matter in dispute. 10. But there is a subsisting mortgage over the property and it would not be opened or possible for the revenue authorities to ignore the fact that the South Indian Bank Ltd had obtained a decree for foreclosure in relation to the property and there is also a certificate of recovery pursuant by the Debt Recovery Tribunal. If, as contended by the petitioners, the decree or the certificate of recovery are nonest because they were passed or issued without W.P ( C) No. 13454 of 2009 6 notice to the legal heirs, then it is up to the petitioner to get appropriate declaration or an order from the competent authority. 11. Once a dispute is raised by a person, who is entitled to the claim an interest in the property and such dispute relates to the subsisting title over the property, then it cannot be said that revenue officials are entitled or bound to ignore the same and nevertheless proceed to effect transfer of registry merely on the premise that the Transfer of Registry Rules or pokuvaravu are intended only for fiscal purpose as such. 12. In such circumstances, it cannot be said that respondent has acted illegally in refusing to effect mutation on the strength of documents currently stated to have been executed by the petitioners alienating their right over the property merely on the premise that the Transfer of Registry Rules is only for fiscal purpose. 13. In my view, the appropriate course of action to be followed by the Village Officer is to issue a notice to South Indian Bank Ltd and then proceed to take a decision. W.P ( C) No. 13454 of 2009 7 This the respondent shall do without burdened by the stand taken in the counter affidavit filed before this Court and take a decision, in accordance with law, with notice to the petitioner as also the South Indian Bank Ltd, within one month from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. (V.GIRI,JUDGE) ma W.P ( C) No. 13454 of 2009 8 W.P ( C) No. 13454 of 2009 9 W.P ( C) No. 13454 of 2009 10