A. Ibrahimkutty and others v. District Registrar (General), Ernakulam; Commissioner for Land Revenue, Thiruvananthapuram; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 2ND DAY OF SEPTEMBER 2014/11TH BHADRA, 1936** ## **WP(C).No. 18146 of 2014 (P)** **----------------------------** **PETITIONER(S) : --------------** **1. A.IBRAHIMKUTTY, S/O.ABDURAHIMAN, 'SAFA', 44/3757B(44/520), KALOOR P O, KOCHI-682 017.** **2. ROSHINA IMBRAHIM, D/O.A IBRAHIMKUTTY, 'SAFA', 44/3757B(44/520), KALOOR P.O., KOCHI-682 017.** **3. RISWANA IBRAHIMKUTTY (MINOR), AGED 17 YEARS, D/O.A IBRAHIMKUTTY, 'SAFA', 44/3757B(44/520), KALOOR P O, KOCHI-682017, REP. BY HER FATHER AND NATURAL GUARDIAN THE IST PETITIONER.** **BY ADVS.SRI.P.CHANDRASEKHAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SRI.P.K.ABDU RAHEEM** **RESPONDENT(S) :** - **--------------** **1. THE DISTRICT REGISTRAR (GENERAL), ERNAKULAM-682 011.** **2. THE COMMISSIONER FOR LAND REVENUE, THIRUVANANTHAPURAM-695 001.** **3. THE STATE OF KERALA,** - **REP BY PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, SECRETARIAT, THIRUVANANTHAPURAM-695 001** **BY SENIOR GOVERNMENT PLEADER SRI.K.C.VINCENT.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rvs/** _**WP(C).No. 18146 of 2014 (P)**_ ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **----------------------** **EXT. P1:- TRUE COPY OF PARTITION DEED DTD 13/5/2014 EXECUTED BY THE PETITIONERS.** **EXT. P2:- TRUE COPY OF AFFIDAVIT DTD 13/6/2014 FILED BY THE PETITIONERS AND OTHERS BEFORE THE IST RESPONDENT.** **EXT. P3:- TRUE COPY BUILDING PERMIT NO MOPU-COC-170/12 DTD 5/10/2013 ISSUED BY THE CORPORATION OF COCHIN.** **EXT. P4:- TRUE COPY OF THE UNDATED LETTER ISSUED BY THE IST RESPONDENT TO SMT MARY JOSE.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **NIL.** **/true copy/** **P.A.TO JUDGE** **rvs/** ## **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ **W.P.(C).No.18146 of 2014** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 2[nd] day of September, 2014 ## **J U D G M E N T** The short question that arises in this writ petition is with regard to the duty chargeable for a partition deed executed between the father and children putting their individual property into a common hotchpot and constructing a building jointly with a common building permit under a family arrangement. The question is whether registration of family arrangement is a _sine qua non_ for its validity. 2. The Registrar refused to register the instrument for the reason that there is a transfer of share of 1/3[rd] of the appurtenant land belonging to each of the executants owned by a separate document. Therefore, the Registrar was of the opinion that the duty chargeable with regard to 1/3[rd] share is that of conveyance. 3. The recitals in the instrument would clearly indicate that the properties owned by each executants have been purchased from a common fund belonging to the family. It is thereafter they constructed a commercial building jointly on a family arrangement and by a partition deed, each one of them confined themselves to a share of 1/3[rd] over the undivided appurtenant land by partitioning the building by metes and bounds. ## **`W.P.(C).No.18146/2014`** ## **-:2:-** 4. The main question that arises for consideration is whether such transfer of the right in favour of the executants, confining each one of them 1/3[rd] right in the land, amounts to attract duty that is leviable for conveyance. Section 2(d) of the Kerala Stamp Act defines “conveyance” as follows: “Conveyance” includes a conveyance on sale and every instrument by which property, whether movable, or immovable, is transferred _inter vivos_ and which is not otherwise specifically provided for by the Schedule.” 5. The learned counsel for the petitioner Shri P.Chandrasekhar would submit that there is no element of sale by transferring 1/3[rd] share to other executants. It is further submitted that what is executed is a partition deed partitioning the properties based on family arrangement and it should be given effect to. The learned counsel further submits that in the matter of family arrangement between the members of the family individual property thrown into common hotchpot, individual member of the family deemed as co-owner of the property. Learned counsel also further submitted that family arrangement in India has been accorded with a legal recognition. Therefore, it is only a family arrangement given effect to by the parties. The ## **`W.P.(C).No.18146/2014`** ## **-:3:-** learned counsel also relied on the decision of the Hon'ble Supreme Court in ## **Kale and others v. Deputy Director of Consolidation and others [AIR** **1976 SC 807]** wherein it is held that even if one of the parties to the family settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed. According to the learned counsel the recitals in the document itself would indicate antecedent title as each one of the executants had purchased the property in its name with the family fund. 6. As has been pointed out, point arises for consideration is whether antecedent title should be assumed or relinquishment of the share should be treated as a conveyance. The practice in India through various types of family arrangements for management of a property befitting the tradition and cultural identity had been accorded with legal sanctity. The system of _marumakkathayam, coparcenary_ or Hindu Undivided Family (HUF) had been institutionalised by legal sanctions. In **Sahu Madho Das v. Mukund Ram [AIR 1955 SC 481]** the Hon'ble Supreme Court in para.35 held as follows: ## **`W.P.(C).No.18146/2014`** ## **-:4:-** “It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that falling to his share and recognising the right of the others as they had previously asserted, it, to the portion allotted to them respectively. That explains why no conveyance is required in these case to pass the title from the one in whom it resides to the persons receiving it under the family arrangement, it is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and, therefore, no conveyance is necessary.” 7. In Halsbury's Laws of England Vol.18 at page 135 it mentions family arrangement as follows: “A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.” ## **`W.P.(C).No.18146/2014`** ## **-:5:-** It is also mentioned therein that the agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term “family arrangement” is applied. 8. In the judgment relied on by the learned counsel for the petitioner, _**Kale's**_ case _(supra)_ family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of family arrangement are reduced into writing. The precise case of the petitioner relying on the recitals of the instrument is that they have purchased this property based on a common fund available to the family and based on an oral agreement they constructed a common building. In the light of the judgment in **Sahu Madho Das's** case **[AIR 1955 SC 481]** , I am of the view that no conveyance is required to pass the title from one in whom it resides to the persons receiving it under the family arrangement and, the document presented for partitioning the appurtenant land with building is, therefore, nothing but a partition deed based on antecedent title. The parties being father and children it has to be presumed that the oral family arrangement to put the property in common hotchpot of family has been given effect to by the parties by constructing the building. ## **`W.P.(C).No.18146/2014`** ## **-:6:-** Therefore, the writ petition is allowed. There shall be a direction to respondents to accept the instrument presented by the petitioners as a partition deed and register the same in accordance with law. No costs. **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** ms