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2017 DIGILAW 792 (KER)

Thomaskutty v. State o Kerala

2017-05-23

NAVANITI PRASAD SINGH, RAJA VIJAYARAGHAVAN V.

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JUDGMENT : Navaniti Prasad Singh, J. This appeal is directed against the judgment of the learned single Judge in W.P(C) No.38373 of 2015 dated 20.06.2016. 2. We have heard the learned senior counsel for the appellant Sri. Bechu Kurian Thomas and the learned Government Pleader appearing for the State. 3. Let it be noted that three family members of the appellant, viz., Elizabeth Simon, N. David and Saramma Johnson, were impleaded as respondent Nos.5 to 7 in this appeal. Though notices were duly served on them, they have not chosen to enter appearance. 4. It appears that the mother of the appellant, who was the original writ petitioner, was in Government service. She was alloted an accommodation where she lived for over 25 years. As per the Government scheme then prevalent, upon her superannuation, she was entitled to be settled with such accommodation. Upon superannuation, she made applications to the State Government for such a settlement, but nothing came about it. Ultimately, being over 80 years of age on or about 26.05.2005, Chinnamma, the mother of the appellant, made a Will in which, she mentioned about this property and the fact that she was entitled to it and also that she was pursuing the matter for the settlement thereof in her favour. She, as per the Will, noticing that it was this appellant who was now pursuing the matter on her behalf because of her old age, bequeathed all her right, title and interest in the said property exclusively in favour of the appellant, noticing her other children being alive and not to be entitled to this property. 5. The State Government having not taken a decision, it appears, the appellant's mother moved this Court by filing W.P(C) No.8733 of 2007. The said writ petition was disposed of on 15.03.2007 directing the Government to take a final decision within a period of six months. It appears that on 12.07.2007, the mother of the appellant died. The matter was then pursued by the appellant. The State Government then communicated a decision to transfer the said property to the appellant for a consideration of Rs.18,00,000/-. This was challenged by the appellant in W.P(C) No.29304 of 2012. In those writ proceedings, on record he has brought the recommendation of the Minister in charge whereby it was recommended that the settlement be made in favour of the appellant for 25% of the market value. This was challenged by the appellant in W.P(C) No.29304 of 2012. In those writ proceedings, on record he has brought the recommendation of the Minister in charge whereby it was recommended that the settlement be made in favour of the appellant for 25% of the market value. Ultimately, the matter was heard and this Court by judgment dated 20.03.2015 directed the settlement to be made upon reconsideration of the matter by the State Government noticing that even the ultimate value as determined by the State was astronomically high for such a settlement. 6. To cut the matter short, we would only notice that ultimately, in 2010, the State had taken a stand that it would settle the land for Rs.8,40,000/-, as noted above, and this order has not been interfered with in the challenge made by the appellant in the present writ proceedings being W.P(C) No.38373 of 2015. The learned single Judge, while allowing the writ petition, directing that the settlement being made for a value about Rs.8,40,000/-, issued two further directions with which the writ petitioner/appellant is aggrieved. Firstly, he was of the view that as the State Government had agreed to make the settlement for Rs.8,40,478/- on about 15.03.2010 and the appellant did not immediately deposit the said money, the appellant would pay the said money along with simple interest @ 6% per annum from the said date, i.e., 15.03.2010. The second was with relation to in whose favour the settlement would be made, now that the mother Chinnamma was dead. The appellant contended that as per the probated Will, it ought to be settled in his favour. The learned single Judge held that it was not the property of the mother at the time when she died and as such, notwithstanding the Will, it can only be settled with all the legal heirs irrespective of where the money came from. Let it be noted that it is because of this, the three brothers/sisters of the appellant were added as party respondents. As noticed above, in spite of valid service of notice, they have not chosen to appear in these proceedings. 7. On behalf of the appellant, it is submitted that the appellant is a poor person and in need of residence. It would be highly iniquitous to ask him to pay interest. We have considered this argument and we are not impressed. 8. 7. On behalf of the appellant, it is submitted that the appellant is a poor person and in need of residence. It would be highly iniquitous to ask him to pay interest. We have considered this argument and we are not impressed. 8. From the records it appears that the value of the property is much higher now than 8.40 lakhs, which is the settlement money. The appellant had the opportunity to pay the said amount in the year 2010 itself and get the settlement. But, he did not have the money and delayed the matter. He is to blame himself for the predicament. We are as such unable to interfere with the judgment of the learned single Judge in that matter and in that regard. 9. In respect to the second direction that the property be settled in favour of all the legal heirs, we think the appeal should succeed. It is not in dispute that when the Will was made, Chinnamma, the mother of the appellant, was, in fact, entitled to the said property. It is pursuant to her entitlement that the judgments have been delivered, which judgments have attained finality. The State never challenged those orders. Thus, it was an entitlement in her favour at the time of her death. 10. The Will was duly probated. The three private respondents were parties to those proceedings and they never opposed it. Accordingly, we think it would be just and equitable that the settlement be made in favour of the appellant alone as per the probate and to that extent, we modify the judgment of the learned single Judge under appeal. Thus, in our view, as the matter has already been pending for more than a decade, we would direct the State Government that immediately upon receipt of the monies, as indicated above, appropriate decision for settlement of the land in question in favour of the appellant be communicated. All the proceedings be completed within four months. We grant two months' time to the appellant to pay off the entire amount and two months' time to the State to pass necessary orders and make the settlement accordingly. 11. As this matter has been pending and being litigated for long, in order to cut short all possible litigations or disputes, we would quantify the total interest at Rs.3,75,000/-. We grant two months' time to the appellant to pay off the entire amount and two months' time to the State to pass necessary orders and make the settlement accordingly. 11. As this matter has been pending and being litigated for long, in order to cut short all possible litigations or disputes, we would quantify the total interest at Rs.3,75,000/-. Thus, the amount payable by the appellant would be Rs.8,40,478/- plus interest component of a total of Rs.3,75,000/-, totalling to Rs.12,15,478/-. With the aforesaid modifications, this writ appeal stands disposed of.