H.Gouri vs State Of Kerala

T.R. Ravi, J

The writ petition has been filed praying for a direction to the 2nd respondent to take up Ext.P2 application for transfer of Registry filed by the

petitioner and pass orders on the same. The case of the petitioner is that the properties originally belonged to one G.Ambika who had executed a

registered 'Will' (document No.20/2015 of SRO, Sasthamangalam) on 22.1.2015 settling the properties scheduled as 1 and 2 in the document in favour

of the petitioner. The copy of the 'Will' is produced as Ext.P1. It is stated that the copy of the 'Will' was submitted for registration by the testatrix

herself and that she died 5 years later on 24.4.2020. On 4.11.2020, the petitioner submitted Ext.P2 application for transfer of Registry on the basis of

Ext.P1 'Will'. Meanwhile, the 3rd respondent has filed O.S.No.212/2020 before the Sub Court, Thiruvananthapuram for partition and for a prohibitory

injunction against the petitioner and one Achuthan Nair who is the elder brother of the 3rd respondent. The petitioner has filed a written statement

pleading that the property is not partible. The copy of the plaint and the written statement are produced as Exts.P3 and P4 in the writ petition. The

petitioner further submits that there is no suit filed challenging Ext.P1 'Will' and there are no orders of the Civil Court restraining transfer of the

Registry. The 3rd respondent has on 11.5.2020 filed an application before the 2nd respondent contending that the 'Will' is invalid. Ext.P6 is the said

application. The 2nd respondent gave notice of hearing on 8.2.2021 and directed the parties to appear on 24.2.2021. The 3rd respondent did not

appear, but submitted another application stating that the 'Will' is false and that it is for the petitioner to prove that the 'Will' is a valid document. It is

also stated that the 3rd respondent has filed an application before the 2nd respondent for transfer of the Registry on the ground that the properties are

heritable and that it was devolved on her as per the provisions of the Hindu Succession Act, 1956. She has prayed to keep the proceedings for transfer

of Registry on the request of the petitioner in abeyance. The said application has been produced as Ext.P7 along with the writ petition.

The learned counsel for the petitioner contends that the law is well settled that the mutation does not confer any right, title or interest in a property.

The mutation of property in the revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. (See

Balwant Singh v. Daulat Singh (1997) 7 SCC 137). The entries made on mutation are relevant only for the purpose of collecting land revenue. It is to

be held that the entries in the revenue records or jamabandi have only fiscal purpose (See Suraj Bhan v. Financial Commissioner (2007) 6 SCC 186).

Similar view has been expressed in several cases.

In the case on hand, Ext.P1 is a registered 'Will' executed in 2015. The testatrix died in 2020. Ext.P6 application was filed by the 3rd respondent

before the 2nd respondent on 11.5.2020 contending that the 'Will' is invalid. On 4.11.2020 the petitioner filed Ext.P2 application before the 2nd

respondent seeking transfer of Registry. O.S.No.212/2020 has been filed by the 3rd respondent on 14.12.2020. Ext.P7 application was filed by the 3rd

respondent on 24.2.2021, requesting to keep the proceedings of transfer of Registry in abeyance. It can be seen from Exts.P6 and P7 that the 3rd

respondent is very much aware of Ext.P1 'Will'. In paragraph 16 of Ext.P3 plaint, the 3rd respondent has stated about a lawyer notice dated 27.2.2020

in which the execution of 'Will' has been referred to. However, there is no specific challenge in Ext.P3 as against the 'Will', though it is filed after filing

Ext.P6. As long as the 'Will' is not specifically put in issue before a court of law, I am of the opinion that the petitioner is entitled to the relief prayed

for.

In the result, the writ petition is allowed.  The n2d respondent is directed to take up Ext.P2 application for transfer of

Registry and pass orders on the same within two months from the date of receipt of a copy of this judgment. It is made clear that this Court has not

expressed any opinion regarding the merits of the claim of the petitioner regarding the title to the property. Transfer of Registry, if ordered by the 2nd

respondent in favour of the petitioner will not in any way prejudice the contentions of the 3rd respondent in Ext.P3 suit initiated by her. If at any stage

of the proceedings in Ext.P3 suit or in any other civil proceedings the validity of the 'Will' is put in issue, necessarily, the petitioner as well as the 3rd

respondent will be governed by the decision of the Civil Court insofar as the title to the property is concerned. The petitioner will also not be entitled to

any equity on the basis of any favourable orders passed by the 2nd respondent, pursuant to the directions contained in this judgment.