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Karnataka High Court · body

2022 DIGILAW 1567 (KAR)

Rakesh Aithal v. Commissioner

2022-12-08

M.G.S.KAMAL

body2022
JUDGMENT/ORDER 1. Petitioner is before this court seeking issue of writ of mandamus to the respondent No.2 to consider the representation dtd. 6/6/2020 as per Annexure-K and for a direction to pass orders to transfer the khata in the name of the petitioner in respect of property bearing No.24, II Main, Gokulam South of Kumbarkoppalu, Mysuru. 2. It is the case of the petitioner that the subject property originally belonged to one Smt. Lalitha, - She having purchased the same under a deed of sale dtd. 5/9/1986 and that name of Smt.Lalitha has been mutated in the revenue records maintained by respondent No.2 and khata in respect of the said property has been maintained in the name of said Smt.Lalitha. 3. That the said Smt.Lalitha is the younger sister of petitioner's grandmother and said Smt.Lalitha had executed a Will dtd. 9/3/2009 as per Annexure-A bequeathing subject property in favour of the petitioner. That based on the said Will, the petitioner had made an application for Transfer/registration of khata in his name in respect of the aforesaid property. In response to the said application the respondent authorities issued an endorsement at Annexure-G calling upon the petitioner to produce the following documents: (1) title deed pertaining to the property (2) receipt for having paid tax under SAS (3) Succession Certificate from the court. 4. In the said endorsement it is further stated that if in the event of petitioner not furnishing the documents called for his application would be kept in abeyance. 5. Learned counsel for the petitioner referring to Annexure-H duly acknowledged by the respondent No.2, submits that the petitioner has already produced title deed and receipt for having paid tax under Self Assessment Scheme(SAS) and all that that he has not produced is succession certificate. Learned counsel for the petitioner further refers to communication dtd. 17/2/2020 at Annexure-J and representation dtd. 6/6/2020 at Annexure-K wherein the petitioner provided explanation for seeking transfer of khata and has stated that there is no requirement for production of Succession certificate and that he is ready and willing to execute indemnity bond in the event of any claim made by third parties. Learned counsel further submits that despite the same the respondent authorities have not taken any action. Hence, he submits that insistence on the part of the respondent authorities to produce succession certificate is neither justified nor warrants requiring interference by this Court. Learned counsel further submits that despite the same the respondent authorities have not taken any action. Hence, he submits that insistence on the part of the respondent authorities to produce succession certificate is neither justified nor warrants requiring interference by this Court. 6. Sri.Hemanth P., learned counsel for respondent authorities justifying the issuance of Annexure-G submits that since the petitioner has not produced the documents called for as enlisted in the said endorsement, respondent authorities were justified in issuing the said endorsement. 7. Heard the learned counsel for the parties and perused the records. 8. It is not in dispute that the subject property absolutely belonged to Smt.Lalitha and the khata of the same was standing in the name of said Smt.Lalitha. It is also not in dispute that the property tax was being paid in respect of the subject property in the name of Smt.Lalitha. The petitioner has admittedly produced the title deed as well as tax paid receipt as requisitioned by the respondent No.2. 9. As regards insistence of respondent authorities calling upon the petitioner to produce succession certificate is concerned, it is necessary to note that the matter of issuance of a succession certificate is governed under Sec. 370 of the Indian Succession Act, 1925 which is extracted hereunder: "370. Restriction on grant of certificates under this Part.- (1) A succession certificate (hereinafter in this Part referred to as a certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by Sec. 212 or Sec. 213 to be established by letters of administration or probate: Provided that nothing contained in this Sec. shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letters of administration under this Act. (2) For the purposes of this Part, "security" means- (a) any promissory note, debenture, stock or other security of the Central Government or of a State Government; (b) any bond, debenture, or annuity charged by Act of Parliament [of the United Kingdom] on the revenues of India; (c) any stock or debenture of, or share in, a company or other incorporated institution; (d) any debenture or other security for money issued by, or on behalf of, a local authority; (e) any other security which the [State Government] may, by notification in the Official Gazette, declare to be a security for the purposes of this Part". 10. It is also relevant to refer Ss. 212 and 213 of the Indian Succession Act, 1925 which finds mention in the aforesaid Sec. 370. The provisions of Ss. 212 and 213 are also extracted hereunder: "212. Right to intestate's property.- (1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction. (2) This Sec. shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, [Indian Christian or Parsi]. 213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in [India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. [(2) This Sec. shall not apply in the case of Wills made by Muhammadans [or Indian Christians], and shall only apply- (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Sec. 57; and (ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the [ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits." 11. From the perusal of Sec. 370 it is clear that a succession certificate can be sought and granted only in respect of "Debt" or "security" and not in respect of any immovable property. Though the term "debt" and "security" is not defined under the Act, the provisions of aforesaid Sec. would indicate same to be of movable in nature. The Division Bench of Kerala High Court in the case of P.K.Vishalakshi vs. Bank of India reported in AIR 2006 Kerala 255 while dealing with refusal of grant of certificate under Sec. 372 of the Succession Act in respect of immovable property has held that refusal to grant such certificate in respect of immovable property was not improper. 12. Since the Sec. 370 also refers to Ss. 212 and 213 of the Act with regard to issuance of letter of administration and letter of probate same requires to be considered in the light of the facts of the present case. Sec. 212 operates in respect of property of a person dieing intestate requiring letter of administration to be obtained from a court of competent jurisdiction. The said sec. is not applicable to the facts of present case as there is a 'Will'. As regards Sec. 213 is concerned requiring obtaining of probate in respect of a Will under which a right is claimed, the said Sec. is applicable only in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina in respect of properties that are situated within the territories falling under Sec. 57(a) and (b) of the Act namely Presidency areas. 13. The Apex Court in the case of Clarence Pais Vs Union of India reported in AIR 2001 SC 1151 dealing with issue requiring obtaining probate of a Will has held that a probate will not be required to be obtained by a Hindu in respect of a Will made outside the those territories or regarding the immovable properties situated outside those territories falling under Sec. 57(a) and (b) of the Act. 14. Thus, in the instant case the petitioner is seeking registration of khata in respect of the property claiming to have been acquired by him in terms of a Will executed by Smt.Lalitha. 14. Thus, in the instant case the petitioner is seeking registration of khata in respect of the property claiming to have been acquired by him in terms of a Will executed by Smt.Lalitha. The immovable property in respect of which Will is stated to have been executed is situated in Mysuru, which does not fall within territories mentioned under Sec. 57(a) and (b) of the Act. In that view of the matter there is no requirement of obtaining probate of the said Will either. 15. Since, the Succession Certificate cannot be issued in the case of immovable property and can only be obtained in respect of "debts" and "securities" under the provisions noted above, the insistence by the respondents for production of succession certificate is misconceived and unwarranted. 16. In view of the petitioner having complied with the requirement of law by making an application for registration of khatha by producing title deed, receipt for having paid the tax and the Will executed by Smt.Lalitha, which is the only requirement contemplated under law, there is no reason or justification for the respondent authorities to decline to consider the representation/application of the petitioner for transfer of khata. 17. Needless to mention that authorities would be justified to decline consideration of application for registration of katha if there is/are any objection/s or claim/s made by any person/s claiming to be legal representative/s or successor/s of said Smt.Lalitha, and untill such objection/s and claim/s are adjudicated and determined by a competent court of law. Which is not the case at hand. 18. For the aforesaid reasons, the petition deserves to be allowed. 19. Hence the following: ORDER Writ Petition is allowed. Respondent authorities are directed to consider the application of the petitioner for registration of khata if he otherwise complies with all requirements of law within eight weeks from the date of receipt of certified copy of this order. Assistance rendered by Ms.Anusha, Law Clerk-cumResearch-cum-Assistant is placed on record.