Abdul Muneer v. Sub Registrar, Office of the Sub Registrar, Tirur; District Registrar (General), Malappuram; Inspector General of Registration; Land Revenue Commissioner

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940** **WP(C).No. 16099 of 2017** ## **PETITIONER(S) :** ## **-----------------** **ABDUL MUNEER, S/O. HYDRU, AGED 39 YEARS, PUTHUPARAMBIL HOUSE, VALAVANNUR AMSOM, CHERAVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT- 676 551.** ## **BY ADV. SMT.N.DEEPA** ## **RESPONDENT(S) :** ## **-----------------** **1. SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, TIRUR- 676 101.** **2. DISTRICT REGISTRAR (GENERAL), MALAPPURAM DISTRICT, MALAPPURAM, PIN- 676 505.** **3. INSPECTOR GENERAL OF REGISTRATION, THIRUVANANTHAPURAM, PIN- 695 001.** **4. LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDINGS, MUSEUM JUNCTION, THIRUVANANTHAPURAM- 695 001.** ## **BY SR.GOVERNMENT PLEADER SRI. V.MANU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **17.07.2018** **WP(C).No. 16099 of 2017 (J) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1: A TRUE COPY OF THE GENEALOGY OF FAMILY OF LATE. PUTHUPARAMBIL MOIDEENKUTTY HAJI. EXHIBIT P2: A TRUE COPY OF THE ORDER NO. G1.6851/2012 DATED 25.10.2012. EXHIBIT P3: A TRUE COPY OF THE ORDER NO. L.R(A)3-41406/2013 DATED 29.10.2015 OF THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P4: A TRUE COPY OF THE ORDER NO. L.R(A)3-36725/2012 DATED 09.10.2013 OF THE 4TH RESPONDENT IN AN APPEAL FILED BY ONE KUNHAMMED KUTTY.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** **Msd.** **17.07.2018** ## **ALEXANDER THOMAS, J. ======================== W.P.(C)No.16099 of 2017** ## **=========================** Dated this the 06[th] day of July, 2018 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows: - “a) Call for the entire records leading upto Ext.P2 and P3 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. - b) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the release deed executed by children of Late.Moideenkutty Haji namely, Muhammed, Pathumma, Mammu and Kadeeja in favour of grand children of Late.Moideenkutty Haji namely, Abdul Muneer, Ansar, Sumayya and Rukhiya will come within the purview of Art.48[A] of the Stamp Act and hence the stamp duty paid by them at the time of registration is sufficient. - c) Issue such other appropriate writs, orders or directions as this Hon'ble Court deems fit and proper in the facts and circumstances of the case.” 2. Heard Smt.N.Deepa, learned counsel for the writ petitioner and Sri.V.Manu, learned Sr.Government Pleader appearing for the respondents. 3. The question raised in this case is as to whether the registration of the release deed involved in this case deserves lower stamp duty as envisaged in Art.48 of the Schedule to the Kerala Stamp Act. This case relating to release deed and another case relating to a partition deed were referred for consideration to a Full W.P.(C)No.16099 of 2017 2 Bench and the Full Bench has now answer the questions of law, as per judgment/order dated 16.10.2017 reported in _**2018(1)KLT 238(FB)**_ . Since the document sought to be registered is a release deed, Art.48 of the Schedule to the Kerala Stamp Act governs and the said Art.48 reads as follows: “ **48** .Release, that is to say, any instrument (not being such a release as is provided for by section 24), whereby a person renounces a claim upon another person or against any specified property- [(a) When such release operates in favour of father, mother, grandfather, grandmother, husband, wife, son, daughter, brother, sister, grandchildren or legal heirs of the deceased children of a person. One rupee for every rupees 100 or part thereof of the amount of the fair value of the land and the value of other properties or claims of which the right is relinquished in proportion to the right relinquished or the value of all the properties or claims of which the right is relinquished in proportion to the right relinquished or consideration for the release, whichever is higher, subject to a maximum of rupees 1000.] ## (b) In any other case The same duty as conveyance (No.21 or 22, as the case may be) for such amount or value of the property or claim or fair value of the land of which the right is relinquished in proportion to the right relinquished of consideration for the release, whichever is higher.]” 4. It has now been categorically held by the Full Bench in the abovesaid order in para.14 thereof that as far as release deeds are concerned, the provisions of Art.48 of the Schedule to the Act W.P.(C)No.16099 of 2017 3 would concede to a lower stamp duty only if the beneficiary under the deed is the father, mother, grandfather, grandmother, husband, wife, son, daughter, brother, sister, grandchildren or the legal heirs of the deceased children, _vis-a-vis_ the executor of release deed and in no other case. Further, it has also held therein by the Full Bench that the concept and definition of a 'family' as provided in Art.42 of the schedule to the Stamp Act, which governs partition deed, will not be applicable to the cases involving release deeds, since Art.48 contains no such mandate. It is further held by the Full Bench that as it is seen rightly held by the Division Bench of this Court in _**State of Kerala v. Shibu**_ reported in _**2015 (4) KLT 131**_ , the relationship of the executor with the beneficiary of the release deed should be one of the enumerated types specifically shown in Art.48 and then alone the benefit of the lower stamp duty under Art.48(a) would be obtained and that it does not matter, as regards Art.48, that the parties are members of a 'family' or that they are related to each other and comprising a 'family' as defined in Art.42. That what is paramount to obtain the benefit under Art.48(a) is that the beneficiaries of the release deed is related to the executor of the said deed in one of the types of relationships W.P.(C)No.16099 of 2017 4 enumerated therein, i.e., only if the beneficiary is the father, mother, grandfather, grandmother, husband, wife, son, daughter, brother, sister, grandchildren or the legal representatives of deceased children etc. In other words, as referred to herein above, the Full Bench has now conclusively held that Art.48 of the schedule to the Kerala Stamp Act would concede to a lower stamp duty as envisaged in clause (a) thereof only if the beneficiary under the deed is the father, mother, grandfather, grandmother, husband, wife, son, daughter, brother, sister, grandchildren or the legal heirs of the deceased children _vis-a-vis_ the executor of the release deed and no other case. Therefore, in that it is not covered by clause(a) of Art.48, the higher stamp duty as envisaged in clause (b) thereof would be applicable for the release deed in question. Para.14 of the abovesaid order of the Full Bench reported in _**2018(1)KLT 238**_ , reads as follows: “14. As far as release deeds are concerned, the provisions of Article 48 of the Schedule to the Act would concede to a lower stamp duty only if the beneficiary under the deed is the father, mother, grandfather, grandmother, husband, wife, son, daughter, brother, sister, grandchildren or the legal heirs of deceased children, vis-a-vis the executor of the release deed and in no other case. The concept and definition of a 'family' as provided in Article 42 would not be applicable at all since Article 48 contains no such mandate. What is W.P.(C)No.16099 of 2017 5 relevant, as has been rightly held in **Shibu** (supra), is the relationship of the executor with the beneficiary of the release deed and if such relationship is one of the enumerated types specifically shown in Article 48, then alone the benefit of a lower stamp duty under Article 48(a) would be obtained and in no other case. In other words, it does not matter, as regards Article 48, that the parties are members of a 'family' or that they are related to each other and comprising a 'family' as defined in Article 42. What is paramount to obtain the benefit under Article 48(a) is that the beneficiaries of the release deed is related to the executor of the said deed in one of the types of relationships enumerated therein, i..e., only if the beneficiary is the father, mother, grandfather, grandmother, husband, wife, son, daughter, brother, sister, grandchildren or the legal heirs of deceased children. It is, therefore, luculent that the concept of being part of a 'family' as visualised in Article 42 is of no consequence to release deeds.” 5. In the instant case, as per the facts projected in this Writ Petition, the executor of the release deed are, Sri.Muhammed, Sri.Mammu, Smt.Pathumma and Smt.Kadeeja, who are the siblings of the deceased father of the beneficiaries of the release deed. Indisputably, the first 11 enumerated categories that is father, mother, grandfather, grandmother, husband, wife, son, daughter, brother, sister as mentioned in clause(a) of Art.48 are not applicable for the relationship as between the executor in the release deed and the beneficiaries of the release deed in question. The only question to be examined is as to whether the beneficiaries of the release deed are the legal heirs of the deceased children of W.P.(C)No.16099 of 2017 6 each of the executors. In the instant case, it is clear that the beneficiaries herein who are the children of the deceased brother of the executants, will not certainly come within any of the abovesaid enumerated categories or relationships. Therefore, the respondent Registration officials concerned are fully right in holding that the registration of the release deed in this case does not deserve in lower stamp duty as per Art.48(a), etc. 6. Smt.N.Deepa, learned counsel appearing for the petitioner submits on the basis of the instruction of her parties that during the pendency of the W.P(C), the executants of the present release deeds have already paid the higher stamp duty as per Art.48(b) and the document has been registered. 7. In the light of these aspects, the contentions and prayers raised by the petitioner in this W.P(C) are bereft of any merit. In that view of the matter, it is ordered that the above Writ Petition will stand dismissed. ## Sd/- **ALEXANDER THOMAS, JUDGE** vgd/13.07.18