THACH RUBBERS PRIVATE LIMITED v. THE VILLAGE OFFICER

THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 19TH DAY OF JANUARY 2024 / 29TH POUSHA, 1945 WP(C) NO. 43425 OF 2023 PETITIONER: THACH PALMS PRIVATE LIMITED CHENNATTU RIVIERA, NICE GARDENS, PJ ANTONY GROUND, ERNAKULAM, REPRESENTED BY ITS DIRECTOR, DR. SANTHOSH JOHN ABRAHAM CHENNATTU RIVIERA, NICE GARDENS, PJ ANTONY GROUND, ERNAKULAM, PIN - 682012 BY ADVS. K.J.SAJI ISAAC ELIZABETH VARKEY JITHIN SAJI ISAAC RESPONDENTS: 1 2 THE VILLAGE OFFICER BALAL VILLAGE OFFICE, VELLARIKKUNDU ROAD, BALAL, KASARAGOD, PIN - 671533 TAHSILDAR TALUK OFFICE, VELLARIKUNDU KASARAGOD, PIN - 671533 SR.GP - DEEPA NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2024, ALONG WITH WP(C).42815/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 4 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 19TH DAY OF JANUARY 2024 / 29TH POUSHA, 1945 WP(C) NO. 43550 OF 2023 PETITIONER: THACH GROOVERS PRIVATE LIMITED CHENNATTU RIVIERA, NICE GARDENS, PJ ANTONY GROUND, ERNAKULAM, REPRESENTED BY ITS DIRECTOR, DR. SANTHOSH JOHN ABRAHAM CHENNATTU RIVIERA, NICE GARDENS, PJ ANTONY GROUND, ERNAKULAM, PIN - 682012 BY ADVS. K.J.SAJI ISAAC ELIZABETH VARKEY JITHIN SAJI ISAAC RESPONDENTS: 1 2 3 THE VILLAGE OFFICER BALAL VILLAGE OFFICE, VELLARIKKUNDU ROAD, BALAL, KASARAGOD, PIN - 671533 THE VILLAGE OFFICER MALOTH VILLAGE OFFICE, VALLIKADAVU JUNCTION, MALOTH, KASARAGOD, PIN - 671533 TAHSILDAR TALUK OFFICE, VELLARIKUNDU KASARAGOD, PIN - 671533 SR.GP - DEEPA NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2024, ALONG WITH WP(C).42815/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 5 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 19TH DAY OF JANUARY 2024 / 29TH POUSHA, 1945 WP(C) NO. 43599 OF 2023 PETITIONER: THACH ESTATES PRIVATE LIMITED CHENNATTU RIVIERA, NICE GARDENS, PJ ANTONY GROUND, ERNAKULAM REPRESENTED BY ITS DIRECTOR, DR. SANTHOSH JOHN ABRAHAM CHENNATTU RIVIERA, NICE GARDENS, PJ ANTONY GROUND, ERNAKULAM, PIN - 682012 BY ADVS. K.J.SAJI ISAAC JITHIN SAJI ISAAC ELIZABETH VARKEY RESPONDENTS: 1 2 THE VILLAGE OFFICER BALAL VILLAGE OFFICE, VELLARIKKUNDU ROAD, BALAL, KASARAGOD, PIN - 671533 TAHSILDAR TALUK OFFICE, VELLARIKUNDU KASARAGOD, PIN - 671533 SR.GP - DEEPA NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2024, ALONG WITH WP(C).42815/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 6 : VIJU ABRAHAM , J. =========================== WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 ============================ Dated this the 19th day of January, 2024 J U D G M E N T In all these writ petitions the petitioner has sought for a direction to the respondents to record the new name of the petitioner in place of the earlier name of the Private limited company which has been changed with the approval of the Registrar of Companies as per Ext.P1.

2. In the above writ petitions the petitioner Company’s name is changed with the approval of the Registrar of Companies as is evident from Ext.P1 Certificate of Incorporation as follows:- WP(C) No. Originally Registered Name New Name 42815 of 2023 Romin Realtors Private Thach Rubbers Private Limited Limited 43599 of 2023 Kuttanadu Realtors Private Thach Estates Private Limited Limited 43425 of 2023 Jiya Builders and Developers Thach Palms Private Private Limited Limited 43550 of 2023 Upland Builders and Thach Groovers Private Properties Private Limited Limited 43283 of 2023 Kudakuthiyil Builders and Thach Plantations Developers Private Limited Private Limited WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 7 :

3. Petitioner company are the owner of the properties covered by Exts.P2 and P3 land tax receipts provided in WP(C) Nos. 43550 and 43283 of 2023, and Ext.P2 land tax receipt provided in WP(C) Nos. 42815, 43599 and 43425 of 2023. Consequent to change of name of the company, the petitioners applied to the respondents to change the name of the company in the revenue records as per Exts.P4 and P5 in WP(C) Nos. 43550 and 43283 of 2023, and Ext.P3 in WP(C) Nos. 42815, 43599 and 43425 of 2023. The grievance raised by the petitioners is that there is no response from the respondents till date regarding the change in the name of the Company in the revenue records. Petitioners would contend that the change in the name of the petitioner company was done with the approval of the Registrar of Companies as is evident from Ext.P1 and thereafter the inaction of the respondent in changing the name of the petitioners in the revenue records is absolutely illegal, arbitrary and unreasonable. Petitioners further submit that there is no sale or purchase of land by the company and there is no change in ownership and management and only the name of the company had been changed, that too, after approval from the Registrar of Companies.

4. Petitioner submits that this Court in Park Residency (M/s) Ernakulam v. State of Kerala and Others [2013 (1) KHC 767] was considering the issue with regard to a partnership firm WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 8 : wherein a land was purchased in the name of the partnership firm and later two partners were inducted and the firm was re-constituted under a new name and as to whether mutation which stood in the old name can be effected under the new name. The Court held that when a firm is reconstituted, there need not be a registered documents for the properties to be held in the name of the partnership and since the firm under a new name continues to be the owner of the immovable properties, owner has got every right to get mutation of the properties in its new name. This Court in para 11, 14 and 15 of the said judgment has held as follows: “11. In George's case, 2010 (2) KHC 674 : 2010 (2) KLT 692 : ILR 2010 (2) Ker. 517 : 2010 (2) KLJ 298, the question came up for consideration before this Court was whether a deed of release of his share in the partnership by a partner, though the partnership owns immovable property, is required to be registered under Section 17(1)(b) of the Registration Act. It was held that the same is not required. It was also held that all that is relevant in the conversion of individual partner's property into that of the partnership or vice versa, is the intention of the parties and no document registered or otherwise, is necessary. In paragraphs 6 and 7 the legal position has been explained thus, after considering various decisions of the Apex Court and the principles contained in the Partnership Act: “ “Partners may convert which was property of the partnership, movable or immovable into separate property of the individual partner or property of the individual partners into property of the firm by agreement which may be express or implied. What is relevant is the intention of the partners. WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 9 : For such conversion no document, registered or otherwise is necessary. There must be some evidence to prove that intention. Such intention may even be proved by a course of conduct, for eg., by entries in the partnership books. The term 'partnership property' is generally used to denote everything to which the firm, i.e., all the partners qua the partners can be considered to be entitled. The partners may be entitled jointly or in common to some property, and the same persons may happen to be partners, yet the property may not be partnership property. Even when conversion of individual immovable property of the partner into property of the partnership is made as per a written instrument, it does not require registration compulsorily. A deed of release of his share in the partnership by a partner even though the partnership owns immovable property is not required to be registered as an instrument under S.17(1)(b) of the Registration Act. That is because even though a partner may be a co-owner of partnership property, he has no right to ask for a share in that property, but only that the partnership business be wound up including sale of the immovable property and to ask for his share in the resultant assets. That interest of a partner in the partnership assets, of movable or immovable property is not a right, title or interest in immovable property within the meaning of S.17(1)(b) of the Registration Act.” This Court also examined the effect of Section 14 of the Partnership Act which reads as follows: “14. The property of the firm.- Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 10 : business of the firm, and includes also the goodwill of the business.” The above provision will show that the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired by purchase or otherwise, by or for the firm. After examining the legal effect of Section 14 of the Partnership Act, it was held that registration is required only in a case where the retired partners convey their individual immovable property to the partnership or the continuing partners in their individual capacity. The same is not the situation herein. Herein, the firm M/s. Maria Residency was granted registration on

9.10.2003 as evident from Ext.P7. Ext.P9 is dated

14.10.2003. Hence, the property is one acquired by the firm. In the above judgment, in George's case (supra), in para 6 this Court held that “the Act does not prescribe any particular mode by which property whether movable or immovable is to be brought into the common stock of the partnership. ......... By virtue of Section 14 of the Act it becomes property of partnership. Conversion takes place by operation of law under Section 14 of the Act once the intention is expressed and the property is treated as such. Therefore, it can be seen that the partnership property which stood in the name of M/s. Maria Residency is statutorily transferred in the name of M/s. Park Residency after reconstitution and change of name. They have completed all the formalities including getting registration in the new name as evident from Ext.P7 and executing a deed of amendment of partnership Ext.P8. In clause 3(a) reads as follows: “3(a) The property extending to 04 Acres 05 sqmts in Re.Sy.No.339/6, 0.52 Sqmts in Re.Sy.No.339/6, in 1.71 Sqmts in Re.Sy.339/7 and 0.58 Sqmts in Re.Sy.No.335/1 Thandaper No.6185 of Kakkanadu Village acquired in the name of Mr. WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 11 : Kuruvila Augustine as the Managing Partner of The Mariya Residency as per Sale deed No.2155/2003 of Thrikkakara Sub Registry dated 14/10/2003 is also included in the reconstituted firm 'M/s. PARK RESIDENCY'.” Therefore, the immovable property continues to be the property of the reconstituted firm. The intention is clear from the said clause. Ext.P8(3) is the resolution adopted by the partners, resolving that the item of properties acquired in the name of M/s. Maria Residency will be landed property owned by the reconstituted firm M/s. Park Residency. The petitioner has also produced Exts.P13 to P15 along with I.A. No.15834/2012. Ext.P13 is the deed of amendment dated

6.10.2012 incorporating various terms and clause 8 reads as follows: “8. The Clause No.3(a) added by deed of amendment dated

29.08.2004 shall be substituted for the following clause: 3(a) In the ownership documents of all the properties of the firm including the property admeasuring 04 Acres 05 sqmts in Re.Sy.No.339/6, 0.52 Sqmts in Re.Sy.No.339/6, in 1.71 Sqmts in Re.Sy.339/7 and 0.58 Sqmts in Re.Sy.No.335/1 of Kakkanadu Village in Thandaper No.6185 purchased as per Sale Deed 2155/2003 dated 14.10.2003 of Thrikkakara Sub Registry, the name of the firm shall be substituted and read as M/s. PARK RESIDENCY instead of M/s. The Mariya Residency wherever applicable.” The effect of the same is that the name of the firm shall be substituted and read as M/s. Park Residency instead of M/s. Mariya Residency wherever applicable. Ext.P14 is the certificate issued by the Chartered Accountant showing that the said immovable assets form part of the financial statement which is recorded in page No.9 of the fixed assets register and Ext.P15 is the copy of the relevant page of the WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 12 : stock register duly maintained by M/s. Park Residency and attested by the Chartered Accountant

14. In a matter like this, where it requires the transfer of registry in a situation like this, the absence of a specific provision under the Transfer of Registry Rules need not deter the authorities from accepting the application and acting upon it. There is no prohibition under the rules also. By the operation of law, the firm under a new name continues to be the owner of the immovable properties. Therefore, the owner has got every right to get mutation of the properties in its name. Otherwise, the petitioner will be left out without any remedies in spite of the fact that the firm has been reconstituted and the property also stands in its name.

15. Therefore, the writ petition is allowed. It is declared that the petitioner firm is the owner of the properties covered by clause 3(a) in Ext.P8 and substituted by clause 8 in Ext.P13 after reconstitution of the firm. The items of properties described therein, being held by M/s. Park Residency, they are entitled for effecting mutation. Accordingly, Exts.P1 and P12 are quashed. In the light of the declaration made as above, there will be a direction to the Tahsildar to grant mutation in the name of the petitioner firm in respect of the properties within a period of one month from the date of production of a certified copy of this judgment and the changes will be effected in the Thandaper account accordingly. No costs.” This Court further held that when the firm is reconstituted the partnership which stood in the name of the old firm is statutorily transferred to the new name.

5. Heard the learned Government Pleader also. WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 13 :

6. This Court has considered a similar issue with reference to judgment in Park Residency’s case cited supra in WP(C) No.43124 of 2023 wherein this Court has directed the respondents to consider the application for mutation pending before the respondents, I am of the view that the petitioners are similarly situated to that in WP(C) No.43124 of 2023. Therefore, the above writ petitions are disposed of with a direction to the respondents to take immediate steps for considering and disposing of the application submitted by the petitioners for mutation as expeditiously as possible at any rate within a period of two months from the date of receipt of a copy of this judgment after affording an opportunity of being heard to the petitioners taking into consideration the judgment in Park Residency’s case cited supra and WP(C) No.43124 of 2023, the copies of which shall be made available by the petitioners before the Respondents. With the above said direction, the writ petition is disposed of. VIJU ABRAHAM JUDGE Sd/- sbk/- WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 14 : APPENDIX OF WP(C) 43283/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 TRUE COPY OF THE CERTIFICATE OF INCORPORATION DATED 14.06.2023 PURSUANT TO CHANGE OF NAME OF THE PETITIONER . TRUE COPY OF LAND TAX RECEIPT NO. KL14040100093/2022 DATED 17.01.2022 ISSUED BY THE 1ST RESPONDENT TRUE COPY OF LAND TAX RECEIPT NO. KL14041000196/2022 DATED 17.01.2022 ISSUED BY THE 2ND RESPONDENT TRUE COPY OF LETTER DATED 30.06.2023 SENT BY THE PETITIONER TO THE 1ST RESPONDENT TRUE COPY OF LETTER DATED 30.06.2023 SENT BY THE PETITIONER TO THE 2ND RESPONDENT WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 15 : APPENDIX OF WP(C) 43425/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 TRUE COPY OF THE CERTIFICATE OF INCORPORATION DATED 14.06.2023 PURSUANT TO CHANGE OF NAME OF THE PETITIONER TRUE COPY OF LAND TAX RECEIPT NO. KL14040100095/2022 DATED 17.01.2022 ISSUED BY THE 1ST RESPONDENT TRUE COPY OF LETTER DATED 30.06.2023 SENT BY THE PETITIONER TO THE 1ST RESPONDENT WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 16 : APPENDIX OF WP(C) 43550/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 TRUE COPY OF THE CERTIFICATE OF INCORPORATION DATED 14.06.2023 PURSUANT TO CHANGE OF NAME OF THE PETITIONER TRUE COPY OF LAND TAX RECEIPT NO. KL14040100096/2022 DATED 17.01.2022 ISSUED BY THE 1ST RESPONDENT TRUE COPY OF LAND TAX RECEIPT NO. KL14041000273/2022 DATED 22.01.2022 ISSUED BY THE 2ND RESPONDENT TRUE COPY OF LETTER DATED 30.06.2023 SENT BY THE PETITIONER TO THE 1ST RESPONDENT TRUE COPY OF LETTER DATED 30.06.2023 SENT BY THE PETITIONER TO THE 2ND RESPONDENT WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 17 : APPENDIX OF WP(C) 43599/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 TRUE COPY OF THE CERTIFICATE OF INCORPORATION DATED 13.06.2023 PURSUANT TO CHANGE OF NAME OF THE PETITIONER TRUE COPY OF LAND TAX RECEIPT NO. 8239679 DATED 07.12.2016 ISSUED BY THE 1ST RESPONDENT TRUE COPY OF LETTER DATED 30.06.2023 SENT BY THE PETITIONER TO THE 1ST RESPONDENT WP(C) Nos. 42815, 43599, 43425, 43550 & 43283 of 2023 : 18 : APPENDIX OF WP(C) 42815/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 TRUE COPY OF THE CERTIFICATE OF INCORPORATION PURSUANT TO CHANGE OF NAME OF THE PETITIONER TRUE COPY OF LAND TAX RECEIPT NO. KL140401000094/2022 DATED 17.01.2022 ISSUED BY THE RESPONDENT TRUE COPY OF LETTER DATED 30.06.2023 SENT BY THE PETITIONER TO THE RESPONDENT