Balan Nair v. Sub Registrar, Edappal

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940** **WP(C).No. 21218 of 2018** ## **PETITIONER** **BALAN NAIR, S/O. GOVINDAN NAIR, AGED 84 YEARS, EDAMANA CHAKKANATH, POROOKKARA, P.O. EDAPPAL, MALAPPURAM DISTRICT - 679 576.** **BY ADVS.SRI.K.P.SUDHEER SMT.C.K.SHERIN** ## **RESPONDENT:** **SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, EDAPPAL, MALAPPURAM DISTRICT, PIN - 679 576.** **BY STATE ATTORNEY SRI.K.V.SOHAN,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/6.7.18** ## **WP(C).No. 21218 of 2018 (B)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT-P1 TRUE COPY OF THE HANDWRITTEN COPY OF PARTITION DEEED REGISTERED AS DOC. NO. 658 OF 1970 OF EDAPPAL SRO DATED 28/03/1970** **EXHIBIT-P2 TRUE COPY OF THE GENEALOGY OF THE FAMILY OF THE PETITIONER EXHIBIT-P3 TRUE COPY OF THE PARTITION DEED DATED 19/01/2018 PRESENTED BY THE PETITIONER, HIS TWO SISTERS AND THEIR CHILDREN BEFORE THE RESPONDENT** - **EXHIBIT-P4 TRUE COPY OF THE JUDGMENT DATED 02/03/2018 IN W.P(C) 4360/2018 PASSED BY THIS HON'BLE COURT. EXHIBIT-P5 TRUE COPY OF THE ORDER NO. C NO. 18/18 DATED 04/04/2108 ISSUED BY THE RESPONDENT EXHIBIT-P6 TRUE COPY OF THE LEGAL OPINION GIVEN BY SENIOR GOVERNMENT PLEADER AND DATED 16/03/2018** **EXHIBIT-P7 TRUE COPY OF THE JUDGMENT DATED 27/04/2018 IN W.P(C) 14435/2018 PASSED BY THIS HON'BLE COURT EXHIBIT-P8 TRUE COPY OF THE NOTES OF ARGUMENTS DATED 23/05/2018 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT** **EXHIBIT-P9 TRUE COPY OF THE ORDER NO. C 18/2018 DATED 05/06/2018 ISSUED BY THE RESPONDENT** **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/6.7.18** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 21218 of 2018 ================== Dated this the 2[nd] day of July, 2018 **J U D G M E N T** The petitioner is the 1[st] executant in Ext.P-3 partition deed and the same was presented for registration by the petitioner and the other executants before the respondent, Sub Registrar, Edappal, Mallpuram District . That the property scheduled to Ext.P-3 partition deed is “G” schedule to Ext.P-1 partition deed. According to the petitioner, Ext.P-2 genealogy would show that executants to Ext.P-3 partition deed are related to the other in the enumerated categories of relationships prescribed in the Explanation of Art.42 of the Stamp Act. But the respondent is insisting for higher registration fee and stamp duty without following the dictum laid down by the Full Bench of this Court in the case, _**Abdul Muneer v. Sub Registrar**_ reported in 2018 (1) KLT 238 (F.B). By Ext.P-4 judgment dated 2.3.2018 in W.P.(C).No. 4360/2018 the respondent was directed by this Court to take a decision based on the dictum laid down in para 25 of the abovesaid Full Bench decision as related to the registration of the present document in question. Thereafter, the respondent had passed Ext.P-5 order dated 4.4.2018 relying on Ext.P-6 opinion given W.P.(C).21218/18 - : 2 :- by the Government Pleader. The petitioner had challenged Ext.P-5 rejection order by filing W.P.(C).No. 14435/2018 dated 27.4.2018. In W.P.(C).No. 14435/2018 this Court had directed the respondent to reconsider the matter in the light of the dictum laid down by the Full Bench of this Court. Ext.P-8 is the notes of arguments submitted by the petitioner. The petitioner would contend that the respondent, without proper understanding of the dictum laid down by the Full Bench decision in the abovesaid reported judgment, has now issued the impugned Ext.P-9 order dated 5.6.2018 again rejecting the request of the petitioner. It is challenging Ext.P-9 order, that the instant Writ Petition has been filed with the following prayers: - _“(i) call for the records leading to Exhibits P-5 and P-9 and quash Exhibits P5 and P9 by issuing a writ of certiorari or other appropriate writ, order or direction._ - _(ii) issue a writ of mandamus or other appropriate writ, order or direction commanding the respondent to register Exhibit P-3 deed of partition by accepting the registration fee in terms of clause 1(a)(1)(viii) of Registration Act and Article 42(a)(i) of the Stamp Act;_ - _(iii) declare that the executants to Ext.P-3 partition deed comes within the item “Family” prescribed in Explanation to Article 42(a)(i) of Stamp Act and direct the respondent to register Ext.P-3 partition deed accepting the stamp duty prescribed in Article 42(a)(i) of the Stamp Act.”_ 2. Heard Sri. K.P.Sudheer, learned counsel appearing for the petitioner and Sri.K.V.Sohan, learned State Attorney, appearing for the respondent. W.P.(C).21218/18 - : 3 :- ## 3. Art.42 of the Kerala Stamp Act, 1959 provides as follows: _“42. Partition-Instrument of as defined by Section 2(k):_ _(a) Where the partition is among all or some of the family members -_ _(1) the extent of land involved in the property divided by the instrument is five acres or less_ _One rupee for every rupees the 100 or part thereof of the fair value of the separated share or shares of property 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 the maximum of rupees 1000._ _(ii) the extent of land involved in the property divided by the instrument is above five acres._ _One rupee for every rupees 100 or part thereof of the fair value of the separated share or shares of property 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._ _(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._ _**Explanation** .- Family means father, mother, grandfather, grandmother, husband, wife, son, daughter, grandchildren, brother, sister and legal heirs of the deceased children, if any as the case may be.”_ 4. The Full Bench decision of this Court in the aforecited judgment in _**Abdul Muneer v. Sub Registrar**_ , reported in 2018 ## (1) KLT 238, has held in 25 thereof as follows: _“25. Hence, to assess the eligibility for reduction of stamp duty in_ W.P.(C).21218/18 - : 4 :- _Article 42(1), what is to be seen is the relationship between the coowners at the time of execution of the partition deed. If each of the coowner is related to at least one of the other in the enumerated categories of relationships prescribed in the Explanation of Article 42, then the partition deed between them would become deserving of lower stamp duty under sub-clause (1) of the said Article. Considerations of common lineage, devolution of property etc., are all irrelevant for this purpose and all that becomes relevant for the purpose of Article 42(1) is the relationship of the co-owners at the time of execution and registration of the partition deed. If the coowners are several in number, then the benefit under this Article would flow only if each of such co-owner is related at least to one other through the specified category of relationships as is prescribed in the Explanation to Article 42. This, in our opinion, is the only way the explanation to the Article can be interpreted. Obviously therefore, the conclusions in_ _**Manuel** (supra) and in_ _**Jose** (supra) are not correct and we are, therefore, constrained to hold so. However, we do not propose to unsettle any rights that have been already created and vested prior to this judgment. We clarify that the findings in this judgment would only apply to partition deeds that are executed and presented for registration before the concerned Sub Registrars from this date onwards and that all such deeds registered prior to this date would not be affected by anything stated and found by us herein._ _We thus answer the reference placed for our opinion by holding that there is no conflict in the views of the Division Benches in the judgments in_ _**Jose** (supra) and_ _**Shibu** (supra) and the latter is the correct and applicable law relating to release deeds under Article 48, while the former, though not laying the correct law, relates only to partition deeds under Article 42 of the Schedule to the Act._ _We further declare that the conclusions in_ _**State of Kerala and Others v. Manuel** (2013 (1) KLT 825) and_ _**State of Kerala v. Jose** (2013 (3) KLT 412) of the Division Bench is not the correct law and we, therefore, overrule the same and declare that the benefit under Article 42(1) of the Schedule to the Act would be attracted and available only to those partition deeds that are executed between its co-owners, if each of such co-owner is related to at least one other, in cases where there are more than two co-owners and in case there are only two co-owners, if they are related to each other, in the enumerated categories of relationships prescribed in the Explanation to Article 42 at the time of execution of the partition deed and not otherwise._ _The reference is thus answered and the law relating to stamp duty payable under Article 42(1) of the schedule to the Act is thus declared.”_ 5. Thus It has been held by the Full Bench in the abovesaid decision that, to assess the eligibility for reduction of stamp duty in W.P.(C).21218/18 - : 5 :- Article 42(i) what is to be seen is the relationship between the coowners at the time of execution 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 relationship prescribed in the Explanation of Article 42, then the partition deed between them would become deserving lower stamp duty under sub clause (1) of the said Article. In the instant case, it is not in dispute that the relationship of the executants in Ext.P-3 partition deed are as follows: _1. 1[st] Executant - Writ Petitioner- Brother of Executants 2 and 3_ _2. Executants 2 and 3 - sisters_ _3. Executants 4 and 5 - Brothers (children of 2[nd] executant)_ _4. Executants 6 to 10 - Brothers and sisters (children of 3[rd] executant)._ 6. The respondent SRO in the impugned Ext.P-9 order has actually held that each one of the executants should be related to all the others in the enumerated categories of relationship prescribed in Explanation to Art.42. That aspect of the matter is clear like the day light from a mere reading of Ext.P-9. The respondent SRO has arrived at this stipulation in spite of his having extensively quoted para 25 of the Full Bench dictum in _**Abdul Muneer's case**_ supra. Therefore, the view taken by the respondent SRO is nothing but W.P.(C).21218/18 - : 6 :- re-writing the dictum of law laid down unequivocally and categorically by the Full Bench of this Court in _**Abdul Muneer's case**_ supra. A Division Bench of this Court has recently pronounced judgment dated 21.6.2018 in W.A.No. 1062/2018 [arising out of W.P. (C).No. 12487/2018] which reads as follows: _“The appellant was the petitioner in W.P(C). No.12487 of 2018 and challenge here is to the judgment dated 13.4.2018, whereby, the learned Judge declared that the four persons in the Ext.P1 partition deed, cannot claim the benefit of lesser stamp duty, as is contemplated in Article 42 (1) of the Stamp Act, 1959 (Kerala). The learned Judge referred to the expression, 'family', given in the explanation to Article 42(1) and declared that the four persons involved in the partition deed (Annexure A1), are disentitled to be treated as 'family' for the purpose of the said provision._ _2. The partition deed was amongst the appellant Vasudevan Vadhyan Namboothiri, his wife Vilasini, their son Dileep and the 4[th] person in the partition deed is the brother of the appellant, Parameswaran Namboothiri. But the learned Judge erroneously stated that brother and brother's wife are parties and therefore they cannot come under the category of 'family' to be entitled to lesser stamp duty on the deed._ _3. The benefit of paying lower stamp duty would be available to persons, who come within the enumerated category and it would be appropriate to extract the relevant provision for further consideration:_ _“42. Partition-Instrument of [as defined by Section 2(k)]:_ _(a) Where the partition is among all or some of the family members -_ _(i) the extent of land involved in the property divided by the instrument is five acres or less_ _One rupee for every rupees the 100 or part thereof of the fair value of the separated share or shares of the property 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 the maximum of rupees 1000._ _**Explanation** .- Family means father, mother, grandfather, grandmother, husband, wife, son, daughter, grandchildren, brother, sister and legal heirs of the deceased children, if any as the case may be.”_ W.P.(C).21218/18 - : 7 :- _4. As can be seen from the above explanation of family, the father, wife, son as also the brothers are included in the definition of 'family' and it cannot be overlooked that the four persons involved in the partition are all members of one family._ _5. In the above context, a Full Bench of this Court in Abdul Muneer and Another v. Sub Registrar, Tirur and Others reported in 2018 (1) KHC 207 (FB) while interpreting Article 42(1) of the Stamp Duty Act, declared as follows :_ _“25. Hence, to assess the eligibility for reduction of stamp duty in Article 42(1), what is to be seen is the relationship between the coowners at the time of execution of the partition deed. If each of the coowners is related to at least one of the other in the enumerated categories of relationships prescribed in the Explanation of Article 42, then the partition deed between them would become deserving of lower stamp duty under sub-clause (1) of the said Article. Considerations of common lineage, devolution of property etc., are all irrelevant for this purpose and all that becomes relevant for the purpose of Article 42(1) is the relationship of the co-owners at the time of execution and registration of the partition deed.”_ _6. When we consider the circumstances here, with reference to definition of family, it is clear that the partition deed executed by the four parties connected with the deed would surely be entitled to the benefit of lower stamp duty as provided under sub-clause (1) of Article 42 and it is declared so accordingly._ _7. Having concluded thus, we feel that the learned Judge committed error in dismissing the writ petition. Accordingly, we interfere with the same and allow this writ appeal as also the writ petition. It is ordered accordingly.”_ 7. In the case in W.A.No. 1602/2018, the partition deed sought to be registered was among the writ appellant therein, one Vasudeavn Vadhyan Namboothiri, his wife Vilasini, their son Dileep and the 4[th] person in the partition deed is the brother of the appellant, Parameswaran Namboodiri. This Court held, applying the dictum laid down in para 25 of the Full Bench decision _**in Abdul Muneer's case supra**_ , that each one of the executants in the said partition deed, deal with in that writ appellate judgment is related W.P.(C).21218/18 - : 8 :- to at least one of the other in the enumerated categories as prescribed in the Explanation of Art.42 and that therefore the partition deed considered in the writ appellate judgment also deserves a lower stamp duty. 8. It is now fairly submitted by Sri.K.V.Sohan, learned State Attorney appearing for the respondent that the matter in issue is fully covered in favour of the writ petitioner and the other executants in Ext.P-3 partition deed, in view of the dictum laid down by the Full Bench in para 25 of the _**Abdul Muneer's case**_ supra as well as the judgment dated 21.6.2018 of the Division Bench in W.A.No. 1062/2018. 9. In this view of the matter, the impugned rejection orders at Ext.P-5 and P-9 will stand set aside. It is declared that the writ petitioner and the other executants of Ext.P-3 partition deed have the legal right to get Ext.P-3 partition deed registered and deserve a lower stamp duty and registration fee as envisaged in Art.42 (1) of the Kerala Stamp Act. The petitioner and the other executants concerned may present Ext.P-3 partition deed for registration before the respondent SRO, Edappal, Malappuram, without any further delay and upon such presentation, the respondent SRO will register the said document, if it is otherwise in order and by treating that the W.P.(C).21218/18 - : 9 :- executants of the partition deed would satisfy the definition of “ _family_ ” in relation to Art.42 of the Stamp Act and that they deserve lower stamp duty envisaged in Art.42(1), etc. Necessary steps in that regard should be taken by the respondent SRO within one week from the date of presentation of Ext.P-3 partition deed. With these observations and directions, the Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge