IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 WP(C).No. 17137 of 2008(M) -------------------------------------- PETITIONER : ------------------ CLARAMMA THOMAS, KUDAKASERY.P.O, KOCHUPURAKAL, EZHILLAM.P.O, TIRUVALLA. BY ADV. SRI.P.M.SEBASTIAN RESPONDENTS : ---------------------- 1. THE TAHSILDAR, THIRUVALLA. 2. THE VILLAGE OFFICER, KAVUMBHAGOM, THIRUVALLA. 3. VARGHESE THOMAS, KUDAKASERY KOCHUPURAKAL, EZIJILLAM.P.O, THIRUVALLA. 4. SHYNI CHERIAN, W/O.CHERIAN THOMAS, KUDAVASSERRY KOCHUPURACKAL HOUSE, EZHINJILLAM P.O., THIRUVALLA 5. CHRIS CHERIAN, D/O.CHERIAN THOMAS, AGED 10, -DO- -DO- 6. CHRISTINA CHERIAN, AGED 9, S/O.CHERIAN THOMAS, RESPONDENTS 5 AND 6 ARE MINORS REPRESENTED BY THEIR MOTHER, 4TH RESPONDENT BY ADV. SRI.R.GIREESH VARMA - ADDL.R4-6 GOVERNMENT PLEADER SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17137 of 2008 ORDER IN I.A.NO.8391/2008 IN WP(C).No. 17137/2008 ALLOWED. 01.07.2008 SD/- S.SIRI JAGAN, JUDGE pac -TRUE COPY- P.A. TO JUDGE S.SIRI JAGAN, J ============== W.P.(C).No. 17137 OF 2008 ==================== Dated this the 1st day of July, 2008. J U D G M E N T The petitioner is a widow of late Eso Thomas, Kudukasery, Kochupurakal, Ezhillam P.O., Thiruvalla, who died on 17.1.98. On the basis of a will executed by late Eso Thomas Kudakasery, the 3rd respondent, who is one of the legal heirs of late Eso Thomas Kudukasery, applied for mutation of certain properties allegedly bequeathed to the 3rd respondent by the will. The petitioner filed Ext.P1 objection before the respondents 1 and 2 against such mutation, on the ground that the will executed prior to 14.3.97, when an amendment to Section 213(1) of the Indian succession act, came into force, requires probate. Therefore, the claim on the basis of the un-probated will cannot be countenanced and therefore the mutation cannot be effected. The petitioner therefore seeks the following reliefs: a) To issue a writ of mandamus or any other appropriate writ order or direction directing the 1st respondent to consider on merits and dispose of Ext.P1 petition filed by the petitioner. b) To issue appropriate writ order or direction declaring that mutation of property cannot be done on the basis of a W.P.(C).No. 17137 OF 2008 2 will which is not probated. 2. Some of the other legal heirs of late Eso Thomas, who are also beneficiaries of the will, have impleaded themselves in this writ petition to oppose the same. They would contend that in view of the decision of this Court in Lilly George v. Francina James and others (ILR 2008 (2) Kerala 749), wills which have come into force subsequent to 14.3.97 need not be probated. In this case, late Eso Thomas died on 17.1.98. Execution of the will itself is not disputed by the petitioner. Therefore it is clear that the will came in to force subsequent to 14.3.97. That being so, the decision of the Division Bench of this Court in Lilly George's case (supra) directly applies to the issue, is the contention raised by the additional respondents in this writ petition. 3. I have heard both sides. In the facts and circumstances of the case, I dispose of this writ petition with a direction to the 1st respondent to pass orders on the application for mutation submitted by the respondents 3 to 6, after affording an opportunity of being heard to both the petitioner and respondents 3 to 6, as expeditiously as possible, at W.P.(C).No. 17137 OF 2008 3 any rate, within one month from the date of receipt of a copy of this judgment. While doing so, the 1st respondent shall consider the applicability of the above decision of this Court to the subject matter, while dealing with objections of the petitioner on the ground that without obtaining probate the rights under the will cannot be enforced. S.SIRI JAGAN, JUDGE bkn/-