IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 WP(C).No. 29328 of 2011(M) -------------------------- PETITIONER(S): --------------- JANE XAVIER, W/O XAVIER, KUZHIYIL PURAYIDOM, JYOTHIS NAGAR 41 KALKULANGARA EAST WARD, KOLLAM WEST VILLAGE, KOCHERI P.O., KOLLAM DIST. BY ADV. SRI.B.MOHANLAL SMT.P.S.PREETHA RESPONDENT(S): --------------- THE MANAGER, STATE BANK OF INDIA, CHINNAKKADA BRANCH, MAIN ROAD, KOLLAM 691 001 SC SRI.N.RAJAGOPALAN NAIR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29328 of 2011 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE LETTER OF AUTHORIZATION ISSUED BY SRI.JACKSON XAVIER TO THE PETITIONER ATTESTED BY THE EMBASSY OF INDIA, DOHA QATAR NO: C 32106 DATED 21.6.11 EXT.P2- TRUE COPY OF THE PROPERTY TAX REMITTED IN FAVOUR OF SRI.JACKSON XAVIER BEFORE THE KOLLAM WEST VILLAGE KOLLAM FOR THE YEAR 2010-11 EXT.P3- TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KOLLAM WEST VILLAGE DATED 12.1.11 IN THE NAME OF THE PETITIONER'S SON EXT.P4- TRUE COPY OF THE BUILDING PERMIT ORDER NO:TP/SZ/OBP/214/2010- 11 DATED 18.1.11 ISSUED BY THE KOLLAM CORPORATION EXT.P5- TRUE COPY OF THE COMMUNICATION NO.BR/16/05-11-12 DATED 20.6.11 AND LEGAL OPINION (True copy) P.A To Judge ANTONY DOMINIC, J ....................................................... W.P.(C).29328/2011 .............................................. Dated this the 3rd day of November, 2011 JUDGMENT According to the petitioner, her son who is working abroad made an application to the respondent for a housing loan. It appears that the documents produced were forwarded for legal opinion. Eventually, Ext.P5 legal opinion was given to the Bank and the Bank forwarded a copy thereof to the applicant. According to the counsel, some owners of the property did not join as executants to the title deed of the applicant. Petitioner submits that among the aforesaid persons, one Mr.Sreekumar, is missing since 1991 and therefore, in view of the provisions of the Indian Evidence Act, such person is presumed to be dead. Insofar as others are concerned, petitioner submits that those persons have already concurred to the transaction in question and therefore, the defect does not survive insofar as they are concerned. On the above basis, petitioner submits that the view taken by the Bank is incorrect and the loan should have been granted to him. 2. In my view, if at all the petitioner has a case that one of the executants is missing since 1991, and therefore, her son is entitled to the benefit of of the provisions of the Evidence Act, the W.P.(C).29328/11 2 course open to the applicant was to inform the said fact to the Bank in response to Ext.P5 and it is for the Bank to take note of the said fact and take a final decision in the matter. Therefore, I dispose of this writ petition leaving it open to the petitioner to appraise the said fact to the respondent, who shall consider and take a decision in the matter, without any delay. ANTONY DOMINIC, Judge mrcs