Maria Antony S. v. Sub Registrar, Pathanamthitta

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942** ## **WP(C).No.21758 OF 2020(T)** ## **PETITIONER/S:** **MARIA ANTONY S., AGED 38 YEARS, S/O. SUSIAMARIYAN, 1-77/1, PARAPATTU VILAI, VETTUKUZHI, VEEYANNOOR, KANNIYAKUMARI, TAMILNADU - 629177. BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU)** ## **RESPONDENT/S:** **THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, PATHANAMTHITTA - 689645.** ## **SRI BIMAL K NATH SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.21758 OF 2020** **2** ## **JUDGMENT** The petitioner states that she intends to purchase property having an extent of 4.05 Ares comprised in Sy. No.P52/2A/9/1 of Pathanamthitta Village. For that purpose, she has entered into Ext.P1 agreement for sale with one Sam Varghese. Ext.P1 agreement would show that the total consideration fixed is Rs.4,75,000/- at the rate of Rs.1,17,284/- per Are. She refers to Ext.P2 downloaded from the website of the Department of Registration and points out that the fair value of the above item of property has been fixed at Rs.50,000/- per Are by the competent statutory authority under the provisions of the Kerala Stamp Act, 1959 and the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995. 2. The petitioner points out that her vendor had purchased the property by Ext.P4 sale deed for a total consideration of Rs.13 lakhs. However, due to various circumstances which include demonetization and the pandemic, the vendor was forced to sell the property at a much lower rate, which in turn is much higher than the fair value fixed by the statutory authority. When the petitioner approached the Sub Registrar for execution of the sale deed, he was informed that the sale consideration shall not be less than 13,00,000/- **WP(C).No.21758 OF 2020** **3** being the amount covered under the prior document. Being aggrieved, the petitioner is before this Court seeking the following reliefs: i) Issue a writ of mandamus or appropriate order or direction declaring that petitioner is liable to pay the stamp duty for purchasing the property of 4.05 Ares (10 cents) of property in Survey No. P.82/2A/9/1 of Pathanamthitta Village, Kozhencery Taluk, Pathanamthitta Sub District in Pathanamthitta District is at the value mentioned in Ext.P1 agreement. ii)Issue a writ of mandamus or appropriate order or direction directing the respondent to accept the document for conveyance of 4.05 Ares (10 cents) of property in Sy. No. P.82/2A/9/1 of Pathanamthitta Village, Kozhenchery Taluk, Pathanamthitta Sub District in Pathanamthitta District and register the same in the name of the petitioner without insisting the payment of stamp duty at the rate of value of property mentioned in Ext.P4 sale deed. 3. Sri James Abraham, the learned counsel appearing for the petitioner would refer to Section 45 A (2) of the Stamp Act, 1959 and it was argued that if the registration officer is satisfied that the value of the land or the consideration set forth in the instrument is not less than the fair value of the land, he is bound to register the document. He would also refer to Article 22 to the schedule of the Kerala Stamp Act and points out that the stamp duty is payable with reference to the fair value of the land or the amount of **WP(C).No.21758 OF 2020** **4** consideration for the conveyance whichever is higher. He would also point out that if the registering officer has reason to believe on the basis of materials that the value of the property or the consideration has not been duly set forth in the instrument, he may after registering the document, refer the same to the Collector, who is bound to proceed as per the statutory provisions to determine the value of the property or the consideration and the duty to be paid. The petitioner would also refer to the judgment dated 17.12.2018 in W.P.(C) No.40942 of 2018, wherein identical questions were considered and directions were issued. 4. I have heard the learned Government Pleader and I have considered the submissions. 5. In the judgment relied on by the learned counsel, a copy of which is produced as Exhibit P7, a learned Single Judge, faced with identical issues had occasion to observe thus: 5. Section 45A(2) of the Kerala Stamp Act, 1959 mandates that where on such verification the registering officer is satisfied that the value of the land or the consideration set forth in the instrument is not less than the fair value of the land, he shall duly register the instrument. So also it is further stipulated in Article 22 of the schedule to the Kerala Stamp Act, 1959 which deals with the conveyance as understood in **WP(C).No.21758 OF 2020** **5** section 2 (d) that the Stamp duty rate is payable with reference to the fair value of the land or the amount or value of consideration, for the conveyance whichever is higher. Hence in the light of the above said mandatory provisions contained in Section 45A(2) read with Article 22 of the Schedule to the above said Act, the respondent Sub Registrar is legally obliged to register the document where after such verification he is satisfied that the value of the land of the consideration of the said instrument is not less than the fair value of the land etc. 6. However, Section 45B of the Act confers power on the registering officer, if he has objective materials and reasons to believe that the value of the property of the consideration as the case may be, has not been truly set forth with the instrument, he may after registering the document, take resort to the provisions therein. However, the excise of that power is subject to the strict adherence to the statutory procedure mandated in Rule 4 of the Kerala Stamp(Prevention of Undervaluation of the Instruments) Rules 1968).This Court has laid down the strict legal parameters on the basis of the said drastic power in Section 45B is to be exercised, in various judgments of this Court, as in **District Registrar v. Lake Paradise** [2001(3) KLT 521] and **State of Kerala v. Jino Joseph** 2002(2) KLT 265. 7. That aspect of the matter in relation to Section 45B need not detain the attention of this Court, in as much as, such a factual issue has not now arisen before this Court, as the document has not even been registered. This Court has categorically held in decisions as in **Shaffi v. official** **WP(C).No.21758 OF 2020** **6** **liquidator and another** 2013(2) KLT 988 wherein it has been held that where the registering officer is satisfied that the value of the land or the consideration set forth with instrument is not less than the fair value, then the registering officer is under a bounden duty to register the said document. In view of the above said aspects flowing out from Section 45A(2) under Article 22 of the schedule, this Court has no alternative but to order that in case the petitioner presents the sale deed before the respondent Sub Registrar for registration and where the respondent Registering officer is satisfied that the that the value of the land, for consideration of this instrument is not less than the fair value of the land then the respondent shall necessarily register the said document forthwith, if it is otherwise is in order. In otherwords, the respondent Sub Registrar cannot refuse to register the document on the ground that the sale value shown in the document to be presented by the petitioner is not in tune with the higher value shown in the prior title deed as per Ext.P5. 8. However, this would be without prejudice to the powers of the competent registering officers concerned to invoke the provisions in Section 45B, in case the objective materials to establish that the actual sale consideration is more than the one shown in the deed and that the one shown in the deed does not truly reflect the correct sale consideration etc. However invocation of this provision will be subject to the strict adherence to the due procedure in the light of the legal principle laid down by this Court in **Lake Paradise case supra** [2001(3) KLT 521] and **Jino Joseph's case** supra [2002(2) KLT 265] and also subject to adherence to Rule 4 of **WP(C).No.21758 OF 2020** **7** the the KeralaStamp (Prevention and Undervaluation of Instruments) Rules 1968 whereby in such case the competent registering officer concerned has to pass a provisional formal order giving the basis of his factual conclusions whether tentative or final as to how he has come to the conclusion that the actual sale consideration is much higher than the sale consideration shown in the deed etc and copy of such provisional order passed under Rule 4 should also be given to the affected party concerned while proposed proceedings under section 45B is initiated etc. 6. I am of the considered view that the directions issued by this Court applies on all fours in the instant case as well. As held in **Shaffi** (supra), where the registering officer is satisfied that the value of the land set forth in the instrument is not less than the fair value, the registering officer is bound to register the said document. 7. In that view of the matter, I direct the petitioner to present the document before the respondent for registration. If the registering officer is satisfied with the value of the land set forth in the document is not less than the fair value of the land, the respondent shall register the document forthwith, if the same is in order. It is made clear that the registration as aforesaid shall be without prejudice to the powers of the respondent to proceed under Section 45B of the Act if there are materials to suggest that the sale consideration shown in the document is below the actual **WP(C).No.21758 OF 2020** **8** consideration. If he proceeds to do so, the same shall be in strict compliance with the due procedure and statutory provisions. This petition is disposed of. **SD/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** sru **WP(C).No.21758 OF 2020** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **A TRUE COPY OF THE AGREEMENT DATED 08.10.2020.** - **EXHIBIT P2** - **THE SCREEN SHOT DOWNLOADED AND PRINTED OUT FROM THE PORTAL OF THE DEPARTMENT OF REGISTRATION, GOVERNMENT OF KERALA.** - **EXHIBIT P3 A TRUE COPY OF THE SETTLEMENT DEED NO. 2640/2018 DATED 24.12.2018 OF SRO, PATHANAMTHITTA.** - **EXHIBIT P4 A TRUE COPY OF SALE DEED NO. 386/2019 DATED 21.2.2019 OF SRO, PATHANAMTHITTA.** - **EXHIBIT P5 A TRUE COPY OF THE TAX RECEIPT DATED 6.10.2020** - **EXHIBIT P6 A TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER, PATHANAMTHITTA.** - **EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 17.12.2018 IN WP(C) NO. 40942/2018.** ## **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY// P.A.TO JUDGE**