Ayyappan @ Ayyappa Das S/O Makkotha; Velayudhan S/O Makkotha; Omana; Subran S/O Makkotha; Valliyamma D/O Koran; Rukmini D/O Koran; Santha D/O Koran; Leela D/O Koran; Chakkan S/O Kelan; Kuttan S/O Chakkan; Sunil S/O Chakkan; Geetha D/O Chakkan; Aneesh S/O Chakkan; Saras u @ Sarojini D/O Chakkan; Sindhu D/O Kuttan; Bindu D/O Kuttan; Sini D/O Kuttan; Siji D/O Kuttan v. The District Registrar General, Thrissur District; The Sub Registrar, Chalakkudy Sub Registrar Office, Chalakkudy, Thrissur District

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY,THE 17TH DAY OF JANUARY 2019 / 27TH POUSHA, 1940** ## **WP(C).No. 41340 of 2018** ## **PETITIONERS:** - **1 AYYAPPAN @ AYYAPPA DAS S/O.MAKKOTHA, VETTIYATTIL HOUSE, NEAR GOVERNMENT BOYS HIGH SCHOOL, CHALAKUDY, PIN-680 307.** - **2 VELAYUDHAN S/O.MAKKOTHA, VETTIYATTIL HOUSE, NEAR GOVERNMENT BOYS HIGH SCHOOL, CHALAKUDY, PIN-680 307.** - **3 OMANA,** - **D/O.MAKKOTHA, THANIYATH HOUSE, KATTOOR GRAMA PANCHAYATH, IRINJALAKUDA, PIN-680 702.** - **4 SUBRAN S/O.MAKKOTHA, VETTIYATTIL HOUSE, NEAR GOVERNMENT BOYS HIGH SCHOOL, CHALAKUDY, PIN-680 307.** **5 VALLIYAMMA D/O.KORAN, KALADIKOOTTAM HOUSE, KARUKUTTY, ALUVA, PIN-683 576.** - **6 RUGMINI D/O.KORAN, VETTIYATTIL HOUSE, NEAR GOVERNMENT BOYS HIGH SCHOOL, CHALAKUDY, PIN-680 307.** - **7 SANTHA D/O.KORAN, VETTIYATTIL HOUSE, NEAR GOVERNMENT BOYS HIGH SCHOOL, CHALAKUDY, PIN-680 307.** - **8 LEELA D/O.KORAN, VETTIYATTIL HOUSE, NEAR GOVERNMENT BOYS HIGH SCHOOL, CHALAKUDY, PIN-680 307.** - **9 CHAKKAN S/O.KELAN, PAPPATH HOUSE, NEAR KARUVAPPADY, MELOOR P.O., PIN-680 311.** - **10 KUTTAN S/O.CHAKKAN, THOPPIL HOUSE, KALLUKUTHY, MELOOR P.O., PIN-680 311.** - **11 SUNIL** - **S/O.CHAKKAN, PAPPATH HOUSE, NEAR KARUVAPPADY, MELOOR P.O., PIN-680 311.** WP(C).No. 41340 of 2018 2 - **12 GEETHA** - **D/O.CHAKKAN, PAPPATH HOUSE, NEAR KARUVAPPADY, MELOOR P.O., PIN-680 311.** - **13 ANEESH S/O.CHAKKAN, PAPPATH HOUSE, NEAR KARUVAPPADY, MELOOR P.O., PIN-680 311.** - **14 SARASU @ SAROJINI** - **D/O.CHAKKAN, PAPPATY HOUSE, NEAR KARUVAPPADY, MELOOR P.O., PIN-680 311.** - **15 SINDHU D/O.KUTTAN, THOPPIL HOUSE, MELOOR, MUKUNDAPURAM, PIN-680 311.** - **16 BINDU** - **D/O.KUTTAN, THOPPIL HOUSE, MELOOR, MUKUNDAPURAM, PIN-680 311.** - **17 SINI** - **D/O.KUTTAN, THOPPIL HOUSE, MELOOR, MUKUNDAPURAM, PIN-680 311.** - **18 SIJI D/O.KUTTAN, THOPPIL HOUSE, MELOOR, MUKUNDAPURAM, PIN-680 311.** - **BY ADVS. SRI.KRISHNA PRASAD.S SRI.SUJITH AJAYAN** ## **RESPONDENTS:** - **1 THE DISTRICT REGISTRAR GENERAL, THRISSUR DISTRICT, THRISUSR DISTRICT-680 020.** - **2 THE SUB REGISTRAR, CHALAKKUDY SUB REGISTRAR OFFICER, CHALAKKUDY, THRISSUR DISTRICT-680 307.** **SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 41340 of 2018 3 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C)No.41340 of 2018** **===========================** Dated this the 17[th] day of January, 2019 ## **JUDGMENT** The petitioners are aggrieved by the stand taken by the 2[nd] respondent-Sub Registrar that Ext.P-7 partition deed for the purpose of registration, is not entitled for lower stamp duty as envisaged in clause (a) of Article 42 of the Schedule appended to the Kerala Stamp Act, 1959 and that they will have to pay the higher stamp duty as envisaged in clause (b) thereof. 2. The prayers in the above Writ Petition (Civil) are as follows: - _“i) To issue a writ of mandamus or any other writ, direction or order, directing the 2[nd] respondent to register the Exhibit-P7 partition deed extending the benefit of Lower stamp duty as per Art.42 of the schedule of the Stamp Act._ - _ii) To issue such other relief's as this Honourable Court may deem fit in the circumstances of this case.”_ 3. Heard Sri.S.Krishna Prasad, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Sr.Government Pleader appearing for the respondents. WP(C).No. 41340 of 2018 4 4. It is stated that the 1[st] petitioner’s paternal grandmother, Vettiyattil Parayan Raman Nallamma was granted 4.05 Ares (10 cents) of land in Kizhakke Chalakudy Village, Mukundapuram Taluk, Thrissur Revenue District, as per patta bearing No.890 on 19.05.1970. Further that the said Nallamma had three children viz., i. Makkotha (son), ii. Koran (son) & iii.Devaki (daughter). The said predecessor, Nallamma had died on 31.12.1978 as evident from Ext.P-2 death certificate issued by the Registrar of Births and Deaths attached to the Chalakkudy Municipality. That on her death, Nallamma’s property had devolved upon her three children, as aforestated. Further from the family relationship certificates produced in this case, as per Exts.P-3 to P-6, the following factual particulars are also evident:- Makkotha’s wife's name was also Nallamma, who had predeceased Makkotha. After the death of Makkotha, his rights had devolved upon his daughter (Ammini, who is no more) and her legal heirs are Kuttan (husband of the abovesaid Ammini), who is the 10[th] petitioner and the four children of the said Ammini born in the wedlock with the said Kuttan, viz., Sindhu, WP(C).No. 41340 of 2018 5 Bindu, Sini and Siji, who have been arrayed as petitioners 15, 16, 17 & 18 respectively. The abovesaid Makkotha’s other children are Ayappa Das @ Ayyappan, Velayudhan, Omana and Subran, who have been arrayed as petitioners 1 to 4. 5. Further, Koran (the second son of the predecessor) had also died and his wife Ayya had also predeceased him. The children of late Koran in his wedlock with late Ayya are Valliamma, Santha, Rukmini and Leela, who have been arrayed as respondents 5, 6, 7 & 8 respectively. 6. Devaki (the only daughter of the abovesaid predecessor Nallamma), had also died and her husband Chakkan, son of Kelan, who is arrayed as the 9[th] petitioner and the children of the abovesaid Devaki born in the wedlock with the abovesaid Chakkan, viz., Geetha, Anish and Sarasu, who have been arrayed as petitioners 11, 12, 13 & 14 respectively, are the legal heirs of the abovesaid deceased Devaki. Further it appears that the abovesaid predecessor Nallamma belongs to Scheduled Caste community and all the petitioners also belong to the SC community. Further it is pointed out by Sri.S.Krishna Prasad, learned counsel appearing for the petitioners that the petitioners are not only WP(C).No. 41340 of 2018 6 belonging to weaker, socially and educationally backward sections of the society are also belonging to the economically weaker sections and that they want to avail a housing benefit, which is now being implemented by the local Panchayath for the persons belonging to Scheduled Caste community. That they have emergently sought for execution and registration of the partition deed, so as to ensure that their applications for the said benefit are submitted without any further delay, along with the deed of partition, as otherwise the property is now lying formally in the name of the deceased predecessor Nallamma. 7. There does not appear to be any serious dispute that the degree of relationship is in the manner stated hereinabove in relation to the abovesaid 18 petitioners in the above W.P(C). The abovesaid 18 petitioners have executed Ext.P-7 deed dated 08.11.2018 for partitioning the abovesaid property of their deceased predecessor Nallamma. It appears that the 2[nd] respondent-Sub Registrar has taken the stand that though Ext.P-7 deed could be considered as an instrument of partition, as understood under Sec.2(k), the benefit of lower stamp duty as envisaged in clause (a) of Article 42 of the Schedule appended to WP(C).No. 41340 of 2018 7 the Kerala Stamp Act, 1959 is not applicable in the instant case and that for the executants of Ext.P-7 deed will have to pay the higher stamp duty as envisaged in clause (b) of Article 42. It appears that the foundation of the abovesaid stand of the 2[nd] respondent-Sub Registrar appears to be that each of the 18 executants of Ext.P-7 partition deed are not related to all the others, as understood in the definition of “family”, as contained in Sec.2(fb) of the Kerala Stamp Act, 1959 as introduced by the amendment of the Kerala Finance Act, 2018, made effective from 01.04.2018. 8. To deal with the abovesaid controversy, it will be pertinent to extract the contents of Sec.2(k) dealing with “instrument of partition”, Sec.2(f) “family” and Article 42. The definition of “family” under Sec.2(fb) has been newly introduced in the Act, as per the amendment made effective from 01.04.2018, as per the Kerala Finance Act, 2018. Article 42 has also been amended as per the said Kerala Finance Act, 2018 with effect from 01.04.2018. 9. Sec.2(k) - “instrument of partition” reads as follows: - _“(k) “instrument of partition” means any instrument whereby co-owners of any property divide or agree to divide such property in severality, and includes_ WP(C).No. 41340 of 2018 8 _also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an arbitrator directing a partition;”_ ## 10. Sec.2(fb) – “family” reads as follows: _“ “family” means father, mother, grandfather, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grandchildren, brother and sister;”_ ## 11. Article 42 reads as follows: - _“(a) Where the partition is among all or any of the members of the family and legal heirs of the deceased family member, if any_ _Fifteen rupees for every rupees 10,000 or part thereof of the fair value of the separated share or shares of land and the value of other properties in such separated share or shares set forth in the instrument or of the value of all the properties of the separated share or shares as set forth in the instrument, whichever is higher, subject to a minimum of rupees 1000._ - _(b) in any other case_ _Six rupees for every rupees 100 or part thereof of the amount of the value or fair value of the separated share or shares of the property, whichever is higher.”_ 12. The issue as to whether each of the executants of a deed of partition should necessarily be related to all the other executants or whether each one of them need be related to at WP(C).No. 41340 of 2018 9 least one of the other, so as to fulfil the definition of “family” as understood in the Kerala Stamp Act is no longer _res integra_ and is covered by the dictum laid down by the Full Bench of this Court in the reference order dated 16.10.2018 rendered on W.P(C)Nos.16099 & 18982 of 2017 in the case in _**Abdul Muneer v. Sub Registrar**_ [2018 (1) KLT 238 (FB)]. In paragraph 25 of the abovesaid judgment in **Abdul Muneer’s** case (supra), the Full Bench has categorically held that in order to assess the eligibility for reduction of stamp duty in Article 42 of the Kerala Stamp Act, 1959, what is to be essentially seen is the relationship between the co-owners at the time of the partition deed and if each of the co-owner is related to at least one of the other in the enumerated categories of relationships prescribed in the explanation to Article 42, then the partition deed between them would become deserving of lower stamp duty, as envisaged in Article 42. In other words, it is not necessary that each of the executants of the deed should necessarily be related to all the other executants, so as to satisfy the definition of “family”, as understood in the Kerala Stamp Act, 1959. If each of the executants are related to at least one of the other in terms of the WP(C).No. 41340 of 2018 10 degree of relationship as envisaged in the definition of “family” as contained in the Act and so long as the deed is an instrument of partition, then such a deed has to be registered by granting the benefit of lower stamp duty as envisaged under Article 42. 13. Going by the degree of relationships of the executants, it can be seen that each of the 18 executants of Ext.P-7 partition deed is related to atleast one of the other (as a matter of fact to more than one executants), in the degree of relationship as understood in the definition of “family” as contained in Sec.2(fb) of the Kerala Stamp Act, 1959. 14. Further it is beyond the pale of any controversy that since the subject property is one belonging to the predecessor Nallamma and the petitioners are the successor-in-interest of the said predecessor, they are now holding the property as co-owners and therefore, the deed would certainly fulfil the definition of “instrument of partition” as envisaged in Sec.2(k). 15. In the light of these aspects, it is only to be held that the stand of the respondents that the petitioners are not eligible and entitled for enjoying the benefit of lower stamp duty, as envisaged in clause (a) of Article 42 appended to the Schedule of WP(C).No. 41340 of 2018 11 the Kerala Stamp Act is illegal and _ultra vires_ and it is accordingly declared and ordered. Further it is ordered that it is for the petitioners to immediately present Ext.P-7 partition deed for registration, upon which the 2[nd] respondent will register the same, if it is otherwise in order. It is made clear and ordered that the 2[nd] respondent can demand stamp duty and registration fee for the said purpose only by treating the said deed as the one deserving lower stamp duty in terms of clause (a) of Article 42. 16. Sri.S.Krishna Prasad, learned counsel for the petitioners would submit that since the petitioners have to urgently submit their applications before the local Panchayath concerned for the abovesaid benefit, they are also required to ensure that the property is duly mutated in their name, so as to produce necessary documents while submitting the said applications and that this Court may also direct the competent revenue officials concerned to ensure that the mutation and transfer of registry is also effected in favour of the petitioners, without any further delay and to accept basic land tax from the them in respect of the respective shares of property. Since the petitioners belong to Scheduled Caste community, this Court is WP(C).No. 41340 of 2018 12 inclined to consider the said plea to issue necessary directions, even though the competent revenue officials have not been made parties. 17. Accordingly, it is ordered that after registration of the deed, the 2[nd] respondent-Sub Registrar may also ensure that the necessary forms for mutation of property may also be forwarded immediately to the Village Officer, Kizhakke Chalakudy Village. After registration of the partition deed, the petitioners may also submit formal application for grant of mutation, transfer of registry and acceptance of basic land tax and the formalities in this regard should be duly completed by the Village Officer concerned/competent revenue officials concerned, without any further delay, preferably within one month. The petitioners may produce a certified copy of this judgment before such competent revenue officials as well, for necessary compliance. With these observations and directions, this Writ Petition (Civil) will stand disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** vgd/19.01.19 WP(C).No. 41340 of 2018 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE PATTA DATED 19.05.1970.** **EXHIBIT P2** - **A TRUE COPY OF THE CERTIFICATE OF DEATH OF NALLAMMA DATED 20.09.1997.** **EXHIBIT P3 A TRUE COPY OF THE FAMILY MEMBERSHIP CERTIFICATE OF LATE MAKKOTHA ISSUED FROM THE VILLAGE OFFICE, KIZHAKKE CHALAKUDY DATED 30.08.1999.** **EXHIBIT P4 A TRUE COPY OF THE FAMILY MEMBERSHIP CERTIFICATE OF LATE KORAN ISSUED FROM THE VILLAGE OFFICE, KIZHAKKE CHALAKUDY DATED 10.10.2018.** - **EXHIBIT P5 A TRUE COPY OF THE FAMILY MEMBERSHIP CERTIFICATE OF CHAKKAN ISSUED FROM THE VILLAGE OFFICE, MURINGOOR VADAKKUMMURI DATED ON 15.10.2018.** **EXHIBIT P6 A TRUE COPY OF THE FAMILY MEMBERSHIP CERTIFICATE OF KUTTAN ISSUED FROM VILLAGE OFFICE, MURINGOOR VADAKKUMMURI DATED 23.10.2018.** **EXHIBIT P7 A TRUE COPY OF THE PROPOSED PARTITION DEED DATED 08.11.2018.**