Dr. Sasikumar and N. Sasidharan v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946 WP(C) NO. 24363 OF 2024** ## **PETITIONERS:** - **1 DR. P.SASIKUMAR, AGED 60 YEARS, S/O. P.VIJAYALAKSHMI, RESIDING AT 'DEEPA' NEW MALAMPUZHA ROAD, PUTHUR P.O, PALAKKAD DISTRICT, PIN - 678001** - **2 N.SASIDHARAN, AGED 60 YEARS S/O. T.KRISHNANKUTTY NAIR, RESIDING AT 'PRANAVAM', VENKITESWARA GARDENS, NO.12, PIRAYIRI AMSOM & DESOM, PALLIPURAM P.O, PALAKKAD DISTRICT- 678006** **BY ADVS.JACOB SEBASTIAN WINSTON K.V, ANU JACOB BHARATH KRISHNAN G.** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REGISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE DISTRICT REGISTRAR (GENERAL), PALAKKAD, OFFICE OF THE DISTRICT REGISTRAR (GENERAL), CIVIL STATION, PALAKKAD DISTRICT- 678001** - **3 THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, KUZHALMANNAM, KUZHALMANNAM P.O, PALAKKAD DISTRICT, PIN - 678702** ## **B.S.Syamanthak, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.24363/2024 -:2:- **==> picture [39 x 11] intentionally omitted <==** ## **J U D G M E N T** The petitioners are aggrieved by the stand taken by the 3rd respondent/Sub Registrar to treat the rectification deed presented by them for registration as conveyance (sale deed), as described under Serial No.21 in the Schedule to Kerala Stamp Act, 1959 (for short 'the Stamp Act'), for the purpose of levying stamp duty. 2. The 1[st] petitioner, along with other sellers, sold a total extent of 226.88 cents of land in various survey numbers of Kannadi-1 Village in Palakkad District in favour of the 2[nd] petitioner and other buyers as per Ext.P1 sale deed. Subsequently, it was noticed that the boundaries of various items of properties got mixed up, and the boundaries of some of the properties were wrongly described in the sale deed. According to the petitioners, it was an error that crept in due to a clerical mistake while executing the sale deed. Therefore, the 1[st] petitioner, along with other sellers in the Ext.P1 sale deed, W.P.(C).No.24363/2024 -:3:- prepared Ext.P2 rectification deed in favour of the 2[nd] petitioner and other buyers and presented it for registration before the 3[rd] respondent. The 3[rd] respondent by Ext.P3 memo held that Ext.P2 should be reckoned as a sale deed and the stamp duty as per the prevalent rates should be levied on it. It is challenging Ext.P3, the petitioners have approached this Court. 3. I have heard Sri. Jacob Sebastian, the learned counsel for the petitioners and the learned Government Pleader Sri. B.S. Syamanthak. The 3[rd] respondent has filed a counter affidavit. 4. The learned counsel for the petitioners submitted that by executing Ext.P2, the petitioners wanted to correct the mistake that crept in the description of boundaries of some of the items of properties in the schedule of Ext.P1 and it does not create or extinguish any right other than what was conveyed in Ext.P1 and hence the stand taken by the 3[rd] respondent that Ext.P2 should be treated as sale deed for the purpose of payment of stamp duty cannot be justified. Reliance was placed on the following decisions: **Baburaj P.K. & Others v. State of Kerala & Others** (2019 (2) KHC 628), _**Jihas P.A. v. District Registrar**_ W.P.(C).No.24363/2024 -:4:- _**and another**_ (2012 (3) KHC 146), _**Rajesh Kumar K.T. v. State of Kerala**_ (2024 (3) KHC 425), _**Vannathi Valappil Mahmood v. State of Kerala and Others**_ [2019 (2) KHC 736], _**Madras Refineries Ltd. v. Chief Controlling Revenue Authority, Board of Revenue, Madras**_ [(1977) 2 SCC 308]. On the other hand, the learned Government Pleader submitted that it is not a case of mere correction of the boundaries of certain items of properties which have been misdescribed, but even the identity of certain items of properties have been drastically changed. Therefore, a new right is created which attracts stamp duty as that of a conveyance deed under Serial No.21 in the Schedule to the Stamp Act, submitted the learned Government Pleader. 5. A rectification deed is often executed to correct minor errors or genuine or unintentional mistakes that do not affect the interest or fundamental terms of the original document or change the nature of the transaction. It is a supplementary document that nullifies mistakes and corrections in the original document. The Stamp Act or the Registration Act does not define a rectification deed. By virtue of the powers conferred under W.P.(C).No.24363/2024 -:5:- Section 78 of the Registration Act, the State Government has notified a Table of Fees for different transactions covered therein. Clause I(s) of the Table of Fees refers to a deed which can be treated as a rectification deed. It gives sufficient indication as to what is a rectification deed. It states that the rectification deed does not create, transfer, limit, extend, extinguish or record any right. Therefore, the wrong description of the boundaries, survey number, or any other description of the property which does not create, transfer or record any fresh right can be rectified through a rectification deed [See **Baburaj P.K.** (supra)]. 6. The Schedule to Kerala Stamp Act, 1959, provides for stamp duty and registration fees payable for various documents. Stamp duty is payable under the Stamp Act only for those documents which are shown in the Schedule. The rectification deed does not find a place in the Schedule. No stamp duty has been prescribed for a deed of rectification, as per the provisions of the Stamp Act and the Schedule appended thereto. 7. The learned Government Pleader submits that Ext.P2 rectification deed encompasses a different property than what ## W.P.(C).No.24363/2024 ## -:6:- was conveyed by Ext.P1, and therefore, it has to be reckoned as conveyance, which is shown in Serial No.21 in the Schedule to Stamp Act and stamp duty has to be levied accordingly. The term 'conveyance' is defined under Section 2(d) of the Stamp Act. It reads thus: ## “2(d) “Conveyance” includes- (i) a conveyance on sale; (ii) every order made under section 232 of the Companies Act, 2013 (Central Act 18 of 2013) in respect of amalgamation or reconstruction of companies; (iii) every order made by the Reserve Bank of India under Section 44 A of the Banking Regulation Act, 1949 (Central Act 10 of 1949) ; and (iv) every other instrument, by which property, whether movable or immovable or any interest in any property is transferred _inter vivos_ and which is not otherwise specifically provided for by the Schedule.” 8. As per the above definition, clause (i) is a conveyance on sale. Section 54 of the Transfer of Property Act, 1882 (for short 'the TP Act') defines “sale” as transfer of ownership in exchange for a price paid or promised or part-paid and partpromised. Clauses (ii) and (iii) are not admittedly attracted. Clause (iv) deals with every other instrument, by which property, whether movable or immovable or any interest in any property is ## W.P.(C).No.24363/2024 -:7:- transferred _inter vivos_ and which is not otherwise specifically provided for by the Schedule. 9. A reading of Exts. P1 and P2 would show that the executants wanted to correct the description of boundaries of the properties described in schedule Nos. 2, 4, 5 and 6 and also to correct the description of the properties of those items in tune with corrected boundaries. In all other respects, the subject matter, identity and description of the properties shown in the schedule of Exts.P1 and P2 are one and the same. By making such a correction, no transfer of ownership as stated in Section 54 of the TP Act or transfer of any interest as stated in Section 2(d) of the Stamp Act would take place. In other words, Ext.P2 does not create or extinguish any right or interest other than what was already conveyed by Ext.P1. In the counter affidavit filed by the 3[rd] respondent, there is no case that the properties covered by both documents are not one and the same. The only case is that there is a substantial change in the description of the properties. 10. A Single Bench of this Court in _**Jihas P.A.**_ (supra) held ## W.P.(C).No.24363/2024 ## -:8:- that when a mistake in a deed is sought to be corrected by executing a rectification deed, stamp duty is not payable. In _**Rajesh Kumar K.T.**_ (supra), another Single Bench of this Court held that the rectification deed executed to correct a mistake in respect of the re-survey number of property, wherein the boundary, extent and old survey number remain unchanged cannot be treated as a fresh sale deed for the purpose of levying registration fee and stamp duty payable. Same view was taken in _**Vannathi Valappil Mahmood**_ (surpa). 11. It is settled that to determine whether any stamp duty is chargeable upon an instrument, the real and true meaning of the instrument is to be ascertained [See _**Madras Refineries Ltd.**_ (supra)]. A plain reading of Ext.P2 document would reveal that it is only a rectification deed simply correcting the wrong description of the boundaries of certain items of properties and not at all a conveyance or a sale deed transferring any right or interest over the property. No stamp duty has been prescribed for a deed of rectification under the Stamp Act and the Schedule appended therein. As per clause I(s) of Table of fees under W.P.(C).No.24363/2024 -:9:- Section 78 of the Registration Act, the registration fee leviable on a rectification deed is the same registration fee leviable on the original document subject to a maximum of ₹525/-. 12. Inasmuch as the subject matter of Exts.P1 and P2 is one and the same and Ext.P2 does not create or extinguish any right other than what was conveyed by Ext.P1, it has to be treated only as a rectification deed for all purposes including levy of stamp duty and registration fee. Hence, the 3[rd] respondent cannot demand that the petitioner shall pay stamp duty on Ext.P2, reckoning it as a conveyance/sale deed. Ext.P3 is accordingly set aside. The 3[rd] respondent is directed to register Ext.P2 without insisting for stamp duty. The writ petition is allowed. sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **kp** W.P.(C).No.24363/2024 ## -:10:- ## **APPENDIX OF WP(C) 24363/2024** **PETITIONER EXHIBITS** **Exhibit-P1** **A TRUE COPY OF REGISTERED SALE DEED NO. 3442/2011 OF THE SRO, KUZHALMANNAM DATED 26.12.2011.** **Exhibit-P2** **A TRUE COPY OF THE RECTIFICATION DEED PRESENTED BY FIRST PETITIONER AND OTHERS BEFORE THE 3RD RESPONDENT DATED 06.05.2024.** **Exhibit-P3** **A TRUE COPY OF THE MEMO DATED 28.06.2024 ISSUED BY THE THIRD RESPONDENT.** ## **RESPONDENT EXHIBITS** **Exhibit R3(a)** **True copy of relevant extract of Order 238 of Registration Manual**