High Court Kerala High Court

Christ Church vs Cicil Locke on 3 August, 2010

Kerala High Court
Christ Church vs Cicil Locke on 3 August, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 194 of 2010()


1. CHRIST CHURCH, PALAYAM, TRIVANDRUM
                      ...  Petitioner

                        Vs



1. CICIL LOCKE, S/O.CLARENCE LOCKE
                       ...       Respondent

                For Petitioner  :SRI.MATHEW JOHN (K)

                For Respondent  :SRI.P.C.HARIDAS

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :03/08/2010

 O R D E R
                       THOMAS P.JOSEPH, J.
                    ------------------------------
                       C.R.P.No.194 OF 2010
                    ------------------------------
              Dated this the 3rd day of August, 2010


                               ORDER

This revision arise from the order of Land Reforms Appellate

Authority, Alappuzha (for short ‘the Appellate Authority’) in

A.A.No.137 of 2003 confirming the order of assignment of

landlords’ right passed by the Land Tribunal,

Thiruvananthapuram (for short the Tribunal) in S.M.No.75 of

2000. While the appeal was pending appellant (Cicilia Locke) died

and thereon petitioner representing the Christ Church committee,

Palayam, Trivandrum claiming to be the beneficiary under a Will

executed by the original owner of the property-James Mc’ Donald

Sawyer sought impleadment in the appeal by filing

I.A.No.88/2004. That application was opposed by the claimant in

the Land Tribunal (Cicil Locke). The Appellate Authority dismissed

the appeal holding that the Will is not probated, is not proved as

provided under Section 68 of the Indian Evidence Act and that

petitioner as a beneficiary cannot assert right over the estate of

the deceased. The application and the appeal were dismissed.

That order is under challenge in this revision. Learned counsel for

C.R.P.No.194 OF 2010 2

petitioner contends that the Will was executed by the said James

on 17.10.1972, it was deposited with the District Registrar and

after death of said James on 21.12.1972 the Will was opened and

registered as document No.36 of 1973. Later, as per order of

District Court, Thiruvananthapuram in OP (LA) No.43 of 1973

probate was granted for the said Will. According to the learned

counsel, one of the two executors mentioned in the Will expired

and the other, one Jacob has given it in writing to the petitioner

that he is not interested in acting as executor and hence, the only

person left is the Church Committee which is the beneficiary

under the Will. Hence, the Church Committee (petitioner) is

entitled to come on record in the appeal and contest correctness

of order passed by the Tribunal. Learned counsel for the

respondent (Cicil Locke), claimant before Land Tribunal contends

that the Will is hit by Section 118 of the Indian Succession Act

(for short ‘the Act’). It is also contended that petitioner cannot

claim any right in the property in view of Section 211 and 216 of

the said Act unless and until probate granted by the learned

District Judge is cancelled or revoked and probate is obtained

with right for petitioner as a beneficiary.

2. So far as contention that the Will in question is invalid is

C.R.P.No.194 OF 2010 3

concerned, reference is made to Section 118 of the Act. But, that

contention cannot stand in view of the decisions in Preman v.

Union of India (1998(2) KLT 1004), John Vallamattom v.

Union of India (2003(3) KLT 66) and Kathrikutty v. Pappoo

(2005 (3) KLT 63). In these decisions, Section 118 of the Act has

been held to be violative of Article 14 of the Constitution of India

and hence has been struck down. Section 118 no more exist in

the statute book.

3. Going by the Will in question and it is also not disputed

petitioner is a beneficiary under it. No doubt respondent has a

contention that there is no vesting of the estate with the

petitioner even as per the terms of the said Will, but there is only

a right to take, the sale proceeds of the property. According to

the learned counsel for respondent, a life interest was created in

favour of deceased appellant (before the Appellate Authority).

Yet another contention is that one of the executors named in the

Will is still alive and hence petitioner cannot claim benefit under

the Will. In response it is contended by learned counsel for

petitioner that the said executor, Jacob has given in writing by

letter dated 20.1.2006 to the petitioner that he is not interested

to continue as executor. These questions are not required to be

C.R.P.No.194 OF 2010 4

decided in these proceedings since no evidence in that way was

produced before Appellate Authority. Appellate Authority has

merely stated that in view of Section 211 of the Act, petitioner

cannot claim benefit under the Will. But, it is seen that the

Appellate Authority has not even permitted the petitioner to come

on record as additional appellant. I.A.No.88 of 2004 filed by the

petitioner for impleadment has been dismissed by the Appellate

Authority. Having regard to the facts and circumstances of the

case, I am inclined to think that Appellate Authority ought to

have allowed I.A.88 of 2004 and impleaded petitioner as

additional appellant consequent to the death of original appellant.

Other questions such as whether petitioner is entitled to succeed

to the estate of the testator on any ground as contended by the

learned counsel for the respondent are matters which the

Appellate Authority has to decide on the evidence placed before

that authority.

4. Having heard counsel on both sides, I am persuaded to

think that I.A.88 of 2004 is required to be allowed. Consequently,

the order of the Appellate Authority dismissing the appeal is also

liable to be set aside. I make it clear that it will be open to the

parties to adduce evidence before the Appellate Authority and

C.R.P.No.194 OF 2010 5

raise all their contentions as to their entitlement to the S.M.

schedule property.

Resultantly, the revision petition is allowed in the following

lines:

a) Order on I.A. 88 of 2004 is set aside. That application

will stand allowed. Petitioner is impleaded as additional appellant

No.2 in the appeal before the Appellate Authority. Impleadment

in the cause title of memorandum of appeal shall be carried out

by the office of the Appellate Authority.

b) Order dated 27.8.2008 in A.A.No.137 of 2003 of the

Appellate Authority confirming the order of the Land Tribunal is

set aside and that matter is remitted to the Appellate Authority

for fresh decision as provided under law and in the light of the

observations made above. The Appellate Authority shall issue

notice to the petitioner and respondent before scheduling the

appeal for hearing.

THOMAS P.JOSEPH, JUDGE
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