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2018 DIGILAW 1045 (KER)

Vijayalakshmi v. Tahsildar

2018-12-13

ALEXANDER THOMAS

body2018
JUDGMENT : Alexander Thomas, J. 1. The petitioners are aggrieved by the impugned decision of the 1st respondent Tahsildar rendered as per Ext.P-15 proceedings dated 5.12.2017, whereby their respective requests for mutation of the respective properties obtained by them, through the respective gift deeds have been rejected. The prayers in this Writ Petition (Civil) are as follows: “(i) issue a writ of certiorari or any other appropriate writ, order or direction quashing the original of Ext.P-15. (ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to receive Land Tax after transfer of registry for the property of the writ petitioners. (iii) issue such other orders as this Honourable Court may deem fit to grant.” 2. Heard Sri. B. Krishnan, learned counsel appearing for the petitioners and Sri. Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents. 3. The petitioners are donees in gift deeds as per Exts.P1, P-3, P-5 P-7, P-9 and P-13 all of which have been executed and registered on 11.5.2015 before the SRO, Payyoli. The gift deeds are executed by Meenakshi Amma and Narayani Amma, to whom the petitioners’ properties belong, it is stated. Donees are their children. Their requests for transfer of registry and mutation and to receive basic land tax have been rejected by the 1st respondent as aforementioned Ext.P-15 proceedings dated 5.12.2017. The impugned Ext.P-15 proceedings dated 5.12.2017, reads as follows: xxx xxx xxx 4. Smt. Narayani Amma transferred to the petitioners 1, 2 and 7 to her children, through the gift deeds as per Exts.P-1, P-3 and P-11 respectively and to petitioners 5 and 6 through Ext.P-9 gift deed. Similarly Smt. Meenakshi Amma has transferred 12.40 ares of land to petitioners, 3, 4 and 8 through the gift deeds as per Exts.P-5, P-7 and P-13 respectively. The case of the 1st respondent is that the aforementioned Smt. Narayani Amma and Smt. Meenakshi Amma had got right over the subject property in question on the basis of registered gift deed No. 198/1965 of SRO, Payyoli, executed by their mother, Kalyani Amma. The case of the 1st respondent is that the aforementioned Smt. Narayani Amma and Smt. Meenakshi Amma had got right over the subject property in question on the basis of registered gift deed No. 198/1965 of SRO, Payyoli, executed by their mother, Kalyani Amma. It is the contention of the 1st respondent that it is specifically stipulated in aforementioned registered gift deed No. 198/1965 of S.R.O. Payyoli, executed by Kalyani Amma, that the subject property therein is to be possessed as ancestral property and its rights will devolve only on female descendants and in addition to the ancestral temple and the gurujana sankalpam, in the property also stands transferred. The further case of the 1st respondent is that based on the legal opinion that he has obtained from the District Law Officer concerned, the transfer of registry sought for by the petitioners in the instant case on the basis of Exts.P1, P-3 P-5 P-7, P-9, P-11 and P-13 gift deeds cannot be granted as Smt. Narayani Amma and Meenakshi Amma do not have the right to alienate the property going by the descriptions and stipulations in gift deed No. 198/1965, etc. In other words, though the abovesaid gift deeds executed in favour of the petitioners have been duly registered by the Sub Registrar concerned in terms of the provisions contained in the Registration Act, 1908, the 1st respondent takes the stand that he has the right to decide whether the petitioners have title in spite of registered gift deeds and that since he is convinced that the petitioners do not have title, as the donees did not have right to alienate the property, the request for transfer of registry and mutation cannot be granted. 5. From the pleadings and materials on record, it is seen that the aforementioned Kalyani Amma had obtained the property in question by a family partition deed as per registered partition deed No. 197/1965 of SRO, Payyoli, and thereafter Kalyani Amma had executed and registered gift deed No. 198/1965 of SRO Payyoli, on 21.1.1965 in favour of (1) her brother (one Krishnan Nair) (2) her sister Madhavi Amma’s son Krishna Nair and (3) her children, the aforementioned Narayani Amma and Meenakshi Amma. As per the said gift deed No. 198/1965, the entire property was gifted to the abovesaid Narayani Amma and Meenakshi Amma, donee Nos.3 and 4 thereof subject to the right of the above two male members mentioned in the deed, whose right is limited to manage the properties during the life time. However, there is a clause in gift deed No. 198/1965 that the property should not be alienated or encumbered by Narayani Amma or Meenakshi Amma and that the property should be enjoyed in perpetuity by Narayani Amma and Meenakshi Amma, as belonging to a thavazhi consisting of themselves, their existing female children and female children to be born subsequently. Further the said gift deed also refers to existence of a tharavadu temple, etc. in the property. 6. On the death of the two aforementioned male members in the family mentioned in the gift deed No. 198/65, the property was partitioned between Narayani Amma and Meenakshi Amma as per partition deed No. 1360/2015 dated 11.5.2017 of SRO, Payyoli and properties were duly allotted to them as per the said partition deed. Earlier, basic land tax was being paid by Narayani Amma and Meenakshi Amma in respect of the said property in question upto the year 2015-16. On the same day, (11.5.2015) Narayani Amma and Meenakshi Amma have gifted the properties in question to their children, the petitioners herein in the manner mentioned herein above through various gift deeds as per Exts.P1, P-3 P-5, P-7 P-9, P-11 and P-13. 7. It is trite that the 1st respondent Tahsildar has no power whatsoever to decide on the title of the parties concerned. It is beyond dispute that the Sub Registrar concerned has duly registered the abovesaid gift deeds in favour of the petitioners in terms of the provisions contained in the Registration Act. Therefore, it is not the look out or the business of the 1st respondent Tahsildar to refuse mutation and transfer of registry on the ground that he is of the opinion that the applicants concerned do not have title, as their predecessor in interest did not have the competence to transfer the property. 8. It is also beyond dispute that the respondents have duly accepted basic land tax in respect of the subject properties from Meenakshi Amma and Narayani Amma prior to the present transactions and they have paid land tax upto and inclusive of 2015-2016. 8. It is also beyond dispute that the respondents have duly accepted basic land tax in respect of the subject properties from Meenakshi Amma and Narayani Amma prior to the present transactions and they have paid land tax upto and inclusive of 2015-2016. Therefore, they are the registered land holders of the land concerned as understood in S. 3(3)(d) of the Kerala Land Tax Act. 9. Section 5(2) of the Kerala Land Tax Act, 1961 mandates that basic land tax shall be paid by the land holder concerned of the land. “Land holder” has been defined with precession in S.3(3) of the Kerala Land Tax Act, which reads as follows: “Section 3(3): “Land holder” means:- (a) in relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964), such cultivating tenant. (b) in relation to any land in the possession of a kanam tenant as defined in the Kanam Tenancy Act, 1955 (XXIV of 1955), such kanam tenant. (c) in relation to any land which has not been surveyed and is not held by a cultivating tenant referred to in sub-clause (a), the proprietor of such land. (d) in relation to any other land, the registered holder for the time being of such land, and includes his legal representatives and assigns and any person who under any law for the time being in force is liable for the payment of public revenue due in respect of the land held by him.” 10. In the instant case, since Narayani Amma and Meenakshi Amma are the registered land holders of the said land, clauses (a), (b) and (c) will not apply and clause (4) thereof is attracted. Hence by the statutory force of clause (d) thereof, where a registered land holder alienates or assigns property to others, then such assignees will stand in the shoe of “land holder” as understood in that provision or in a case where the registered land holder dies, then the legal representatives of such registered land holder would fulfill the direction of “land holder” as understood in that provision. In the instant case, the registered land holders have transferred the said properties to the petitioners through the abovesaid gift deeds. In the instant case, the registered land holders have transferred the said properties to the petitioners through the abovesaid gift deeds. Hence in a case where the registered land holder has transferred the property by conveyance/gift, etc., then such assignee/donee will stand in the shoe of land holder, as understood in S.3(3). Hence going by the cumulative mandate of S.5(2) and S.3(3)(d), the competent Revenue Officials concerned are under the statutory obligation to collect land tax from the land holder concerned as understood in S.3(3). In the instant case, by virtue of the statutory applicability of clause (d) of S.3(3), the 1st respondent Tahsildar is statutorily obliged to accept land tax from the assignees/donees of the registered land holders. It is not in the province of his business to get into the vexed question as to whether the donees have title and also as to whether or not the donors in turn have title, etc. These are all matters in the exclusive province of the civil court and not relevant or germane for the purpose of acceptance of basic land tax under the Kerala Land Tax Act, 1961 and the rules framed thereunder or the provisions in the Transfer of Registry Rules, 1966. This elementary aspect of the matter has been completely overlooked by the 1st respondent who has embarked on an adventurous trip of examining the vexed question as to whether the donors concerned have title inasmuch as their predecessor in interest has made certain stipulations in the original gift deed No. 198/1965. In such cases, at best the legally justiciable grievance which can be recognised in private law could be only one where a person who is directly affected by the such transaction could challenge it in the manner known to law. For instance, in such a case a member of the family could take up the plea that the transfer of the property is bad because the transferrors are barred by the conditions of restraint imposed in the prior deed. Such persons alone will have the locus in private law to maintain a legally justiciable grievance. If such legally justiciable cause of action is championed through private law litigative proceedings in the competent civil court, then civil court will have the jurisdiction to enter into the vexed issues of title in this manner. Such persons alone will have the locus in private law to maintain a legally justiciable grievance. If such legally justiciable cause of action is championed through private law litigative proceedings in the competent civil court, then civil court will have the jurisdiction to enter into the vexed issues of title in this manner. But it is clear like the blue sky that the mutation granting authority like the 1st respondent has absolutely no power or competence to enter into that area. Hence for this reason alone the impugned order is liable to be set aside. 11. That apart, since the 1st respondent has rejected the request of mutation on the abovesaid grounds, this Court has also examined some of the contentions in that regard advanced by Sri. B. Krishnan, learned counsel appearing for the petitioners. It is pointed out that the gift made as per registered gift deed No. 198/1965 by Kalyani Amma is absolute and any restrictions placed in the document restraining alienation and encumbrance and restrictions repugnant to the interest created by the document are clearly void and is of no legal effect under the provisions contained in Ss.10 and 11 of the Transfer of Property Act, 1882. This position of the matter has been dealt with by this Court in a catena of rulings as in Narayanan Radhakrishna Menon vs. Narayanan Sukumara Menon, 2018 (2) KLT 553 , wherein this Court has held that a clause in a partition deed restraining alienation of the properties allotted to the parties will be void, even though a deed of partition cannot strictly be regarded as a document of transfer (see para 32 thereof). Further it has also been held by this Court in the said decision that any condition absolutely restraining the transferee or any person under him from parting with or disposing of his interest in the property should be treated as void (see para 25 thereof). 12. The second objection raised by the 1st respondent is based on the provisions contained in the said 1965 gift deed that donees Nos.3 and 4 thereof should enjoy the property as thavazhi consisting of existing female children and female children to be born in future. 12. The second objection raised by the 1st respondent is based on the provisions contained in the said 1965 gift deed that donees Nos.3 and 4 thereof should enjoy the property as thavazhi consisting of existing female children and female children to be born in future. The learned counsel for the petitioners would contend that the said provision is not valid in law, for the simple reason that it prescribes a course of succession unknown to law, because a thavazhi as understood in law consists of a female, all her children male and female and children born to female children. The relevant clause in gift deed No. 198/1965 reads as: xxx xxx xxx 13. Thus from the abovesaid stipulation, male children born through the females in the thavazhi are excluded and hence there is discrimination against male children and hence such male children who are otherwise entitled to be members of thavazhi, are completely excluded only on the basis of the stipulation in the said gift deed. It is pointed out that thavazhi consisting of female members alone cannot be constituted or created and hence the abovesaid clause is invalid. It has been held by this Court in the decision in Soumini vs. Sarada, 1979 KLT 930 , para 4 thereof, that in a case where the parties are admittedly Marumakkathayees and Marumakkathayam law recognises a tavazhi with a common female ancestor and her children, consisting of herself and her lineal descendants, both male and female, and children of her female descendants and so a group under the Marumakkathayam law restricting devolution only to females is unknown to law. Further a Full Bench of the Madras High Court in the decision reported in Md. Kunhi vs. Packrichi Umma, AIR 1924 Mad. 28 has held that a devolution excluding males cannot be countenanced in law and the concept of “Strisothu” is foreign to Marumakkathayam law. Similar view in this regard has also been taken in Kombi Avulla vs. Kottayi Matha, 41 Law Weekly 635 that the constitution of an artificial tarwad consisting of a woman and her female descendants was invalid according to law. In the light of these aspects, this Court in the abovesaid judgment in Soumini vs. Sarada, 1979 KLT 930 , para 4 and 5 has followed aforementioned judgments of the Madras High Court. Hence there is force in the contention of Sri. In the light of these aspects, this Court in the abovesaid judgment in Soumini vs. Sarada, 1979 KLT 930 , para 4 and 5 has followed aforementioned judgments of the Madras High Court. Hence there is force in the contention of Sri. B. Krishnan, learned counsel appearing for the petitioners that the said clause is invalid due to complete exclusion of such male children of the thavazhi, who are otherwise entitled and eligible in law, to become members of such thavazhi. 14. Further the crucial aspect of the matter that is to be borne in mind is that Marumakkathayam system has been abolished by the Joint Hindu Family System (Abolition) Act, 1975, which has come into force on 1.12.1976. By the operation S.4(2) of the said Act, on and with effect from 1.12.1976, all members of a Joint Hindu Family, holding any Joint Family property on the said day shall be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof. Hence it is pointed out that on and with effect from 1.12.1976, the joint family system stands abolished and each of the members of the thavazhi in question will become tenants-in-common and they become co-owners. If that be so, if at all the stipulation of the perpetual continuance of the so-called thavazhi with the exclusion of the male members as aforestated, is treated as valid, then the donees, more particularly Narayani Amma and Meenakshi Amma will get liberated from the shackles of that restraint conditions on the coming into force of the said Abolition law w.e.f. 1.12.1976. 15. This Court is constrained to enter into discussion on the abovesaid issues only because the 1st respondent has cited those aspects as the main ground of rejection in the impugned Ext.P-15 order. Therefore, the said observations and findings made by this Court on those issues are only made from the limited perspective to decide on the matters relating to grant of Transfer of Registry and mutation. 16. Therefore, the said observations and findings made by this Court on those issues are only made from the limited perspective to decide on the matters relating to grant of Transfer of Registry and mutation. 16. As already noted hereinabove, the 1st respondent Tahsildar as the authority concerned with grant of mutation and Transfer of Registry, has no power to examine such vexed issues of title and therefore he has unnecessarily strayed himself into areas which are totally irrelevant and not germane for the purpose of the enquiry for exercising the powers conferred on him. It has been held by this Court in a catena of decisions as in Sainudheen vs. State of Kerala, 2013 (1) KHC 437 , (para 13) that the Tahsildar, as the mutation granting authority, cannot decide on the validity of the documents, and the title of the previous owner and that Rule 16 of the Transfer of Registry Rules has made the said position abundantly clear. Rule 16 of the Transfer of Registry Rules mandates that “the summary, enquiry and decision thereon is only an arrangement for fiscal purposes, and it does not affect the title of any person in respect of the lands covered with the decisions in Transfer of Registry cases and the question of legal right is always subject to adjudication by civil courts and pattas could be revised from time to time in accordance with such judicial decisions. It has been held by the Apex Court and various High Courts in various decisions as in Surney vs. Inder Kaur, AIR 1996 SC 2823 that mutation of property in the revenue records does not create or extinguish title, nor has it any presumptive value on title and it only enables the person in whose favour mutation is ordered to pay the land revenue in question. Therefore in cases like the present one, where the registered land holder concerned has transferred the property, then the transferees/assignees will stand in the shoe of the land holder and by the cumulative impact of S.5(2) and S.3(3)(d), the competent revenue officials are under the bounden and statutory obligation to accept basic land tax from them. Otherwise it will amount to nothing but abdication to statutory obligations and duties of such competent revenue officials, which directly leads to loss of revenue. 17. Otherwise it will amount to nothing but abdication to statutory obligations and duties of such competent revenue officials, which directly leads to loss of revenue. 17. In the light of these aspects, it is only to be ordered that the impugned decision taken by the 1st respondent as per Ext.P-15 proceedings is illegal and ultra vires and the same will stand set aside. The 1st and 2nd respondents are directed to take necessary steps to grant the request of Transfer of Registry and mutation in favour of the petitioners and should also accept basic land tax from the petitioners and issue land tax receipts to the petitioners without any further delay. Necessary steps in that regard should be duly completed by the 1st and 2nd respondents without much delay preferably within a period of 2 weeks from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.