K. K Pathrose & K. I. Thomas v. State of Kerala & The Sub Registrar, Office of the Sub Registry, Puthencruz, Ernakulam

**WP(C) NO. 42007 OF 2024** 2025:KER:29924 **==> picture [58 x 57] intentionally omitted <==** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 8[TH] DAY OF APRIL 2025 / 18TH CHAITHRA, 1947** ## **WP(C) NO. 42007 OF 2024** ## **PETITIONER:** **1 K.K PATHROSE AGED 73 YEARS S/O LATE ISAHAK, KUNNAPILLIKATTEL HOUSE, KINGINIMATTOM P.O, KUNNATHUNADU, ERNAKULAM, PIN - 682311** **2 K.I THOMAS AGED 69 YEARS S/O LATE ISAHAK, KUNNAPILLIKATTEL HOUSE,KINGINIMATTOM P.O, KUNNATHUNADU, ERNAKULAM, PIN - 682311** **BY ADVS. SRI GIGIMON ISSAC SRI TOBIAS TOGI MATHEW** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRY, PUHTENCRUZ, ERNAKULAM, PIN – 682308** **BY SMT.DEVISHREE, GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 25.2.2025, THE COURT ON 08.04.2025 DELIVERED THE FOLLOWING:** **WP(C) NO. 42007 OF 2024** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29924 **2** ## **T.R. RAVI, J.** **--------------------------------------------** W.P(C). No. 42007 of 2024 -------------------------------------------Dated this the 8[th] day of April, 2025 ## **JUDGMENT** The petitioners are the sons of late Ishak and late Aly. They have a sister named Annamma and another sister named Sosamma, who is no more. The properties left behind by their late father were partitioned among the petitioners and their mother in the year 1985 as per partition deed No.4281/1985 of SRO, Puthencruz. 'A' schedule in the partition deed was set apart to the share of the 1[st] petitioner and B schedule was set apart to the share of the 2[nd] petitioner. Life interest was reserved in the mother. After the decision in **Mary Roy V. State of Kerala [1986 (2) SCC 209]** , the concurrence of the siblings was also required to deal with the properties. The mother of the petitioners is no more. Annamma and the legal heirs of late Sosamma expressed their willingness to execute a release deed, **WP(C) NO. 42007 OF 2024** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29924 **3** transferring their rights over the property to the petitioners, on an understanding that the 1[st] petitioner gives 15 cents to Smt.Annamma, and the 2[nd] petitioner gives 15 cents to the legal heirs of Sosamma. A release deed was prepared and submitted for registration by Annamma on 28.10.2024 before the 2[nd] respondent. The 2[nd] respondent, by Ext.P3, informed the petitioners that the release deed is not executed between members of the family as contemplated in Article 48(a) of the Schedule to the Kerala Stamp Act ('the Act' for short) and stamp duty will have to be paid as provided in Article 48(c) of the Schedule to the Act. The petitioners have hence filed this writ petition seeking to quash Ext.P3 and to direct the 2[nd] respondent to register Ext.P2 document, treating it as sufficiently stamped. 2. The petitioners contend that the term “family has been defined under Section 2(fb) of the Act, and in case of partition among all or any of the members of the family and the legal heirs of a deceased family member, the benefit of reduced stamp duty is available under Article 42(a) of the **WP(C) NO. 42007 OF 2024** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29924 **4** Schedule to the Act. Reliance is placed on the judgment of a learned Single Judge of this Court in W.P.(C)No.27788 of 2019 wherein a widow of a brother intended to convey her individual property in favour of her husband's brother. There again the Registering Authority had objected to the registration stating that the widow was not a member of the family. This Court, after considering the effect of the amendment in Article 51A(a) of the Schedule to the Act, held that since it was a case of transfer of individual property held by the widow and not property held by her in her capacity as a legal heir, benefit of concessional stamp duty is not available. That was a case of a settlement deed and as per the provision, where the settlement is in favour of any of the members of the family and/or legal heirs of a deceased family member, the benefit was available. 3. As far as a release deed is concerned, the governing provision is Article 48 of the Schedule to the Act, which reads thus: “48. Release that is to say, any instrument (not being such a release as is provided by Section 24), whereby a person **WP(C) NO. 42007 OF 2024** **5** **==> picture [58 x 57] intentionally omitted <==** ## 2025:KER:29924 renounces a claim upon another person or against any specified property.- - (a) When such release operates in favour of any of the members of the family and/or legal heirs of the deceased family member ## (b) Release deeds executed by commercial banks in respect of agriculture loans, educational loans and other loans. - (c) in any other case Two rupees for every rupees 1000 or part thereof of the amount of the fair value of land and the values of other properties or claims of which the right is relinquished in proportion to the right relinquished or value of all the properties or claims of which right is relinquished in proportion to the right relinquished or consideration for the release, whichever is higher, subject to a minimum of rupees 1000. 0.1 per cent of the amount set forth in the instrument subject to a maximum of Rupees One thousand. The same duty as a 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 and **WP(C) NO. 42007 OF 2024** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29924 **6** the values of other properties of which the right is relinquished in a proportion to the right relinquished or consideration for the release, whichever is higher.” 4. Section 2(fb) defines 'family' to mean “the father, mother, grandfather, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grandchildren, brother and sister”. In the instant case, a sister seeks to execute a release deed in favour of her brother, and the legal heirs of another sister seek to execute a release deed in favour of their uncle. It cannot hence be said that it is not a document executed between family members. In **State of** **Kerala & Anr. v. Jose [2013 (3) KLT 412]** , a Division Bench of this Court while considering Article 42 in the Schedule relating to partition deeds held that the legal heirs of a brother and their uncle would still be a partition deed among family members. In **Abdul Khader v. Sub Registrar, Malappuram [2020 (3) KLT 569]** another Division Bench **WP(C) NO. 42007 OF 2024** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29924 **7** of this Court considered the definition of the word 'family' in Section 2(fb) in the context of a partition between descendants through two wives and held that they still constitute a family and are entitled to get the benefit of lesser stamp duty. 5. In **Abdul Muneer v. Sub Registrar, Tirur & Ors. [2018 (1) KLT 238]** , a Full Bench of this Court considered the question regarding the applicability of lower stamp duty in case of release deeds and held that it would be available only in the case of the persons named in the provision and the concept and definition of a 'family' as provided in Article 42 would not be applicable, since Article 48 contains no such mandate. After the Full Bench decision, amendments were brought into the Act, and Article 48 of the Schedule was amended by including all releases in favour of “any of the members of the family and/or the legal heirs of the deceased family member. The dictum in **Abdul Muneer (supra)** can hence no longer be applied. The only other question is whether a release in favour of a legal heir of a deceased **WP(C) NO. 42007 OF 2024** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29924 **8** member of the family would also apply to a release by the legal heirs of a deceased member of the family. The said question is also not very relevant since a release by a legal heir would still be a settlement by a member of the family and the same stamp duty as in the case of a release to a legal heir would apply. In the result, this writ petition is allowed. The decision contained in Ext.P3 is set aside. There will be a direction to the 2[nd] respondent to register Ext.P2 release deed treating it as sufficiently stamped, if the petitioners comply with all other requirements for registration. Sd/- **T.R.RAVI JUDGE** dsn **WP(C) NO. 42007 OF 2024** 2025:KER:29924 **==> picture [58 x 57] intentionally omitted <==** **9** ## **APPENDIX OF WP(C) 42007/2024** **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF REGISTRATION TOKEN NO. T 8484602 DATED 26.10.2024** **Exhibit P2 TRUE COPY OF THE RELEASE DEED PREPARED IN STAMP PAPER VALUED AT RS. 16,500/DATED 28.10.2024** **Exhibit P3 TRUE COPY OF THE NOTICE ISSUED UNDER SCHEDULE 48(A) OF KERALA STAMP ACT DATED 14.11.2024 BY THE 2ND RESPONDENT**