M.D. Aji v. State of Kerala; Raman S/O Vadakkoot Kunju Ezhuthachan v. State of Kerala (WP(C).23107/2012 & WP(C).30480/2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY ,THE 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940** ## **WP(C).No.23107 of 2012** ## **PETITIONER:** **M.D. AJI AGED 35 YEARS S/O.LATE DHANAPALAN, MULLOTHU HOUSE, KALOOR DESOM, ELAMKULAM VILLAGE ERNAKULAM DISTRICT, PIN -682017** **BY ADVS. SRI.M.K.DILEEPAN SMT.P.SUMITHRA SRI.DEEPAK T.NEDUNGADAN** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF REGISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DISTRICT REGISTRAR GENERAL O/O DISTRICT REGISTRAR, ERNAKULAM, KOCHI-16 3 THE SUB REGISTRAR ERNAKULAM SUB REGISTRY OFFICE, ERNAKULAM , KOCHI-16 BY GOVERNMENT PLEADER SMT.POOJA SURENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.11.2018, ALONG WITH WP(C).30480/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NoS.23107 & 30480 of 2012** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY ,THE 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940** **WP(C).No. 30480 of 2012** ## **PETITIONER:** **RAMAN S/O.VADAKKOOT KUNJU EZHUTHACHAN, P.O.CHEVOOR, PIN - 680008.** **BY ADVS. SRI.P.SANKARANKUTTY NAIR SRI.K.SANDESH RAJA SRI.VENU MENON** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REP. BY THE SECRETARY,**| ||**DEPARTMENT OF REGISTRATION,**| ||**SECRETARIAT, PALAYAM P.O.,**| ||**THIRUVANANTHAPURAM 695033.**| |**2**|**SUB REGISTRAR (THRISSUR),**| ||**OFFICE OF THE SUB REGISTRAR**| ||**CHIYYARAM P.O., PIN - 680006.**| |**3**|**DISTRICT REGISTRAR (GENERAL)**| ||**OFFICE OF THE DISTRICT REGISTRAR**| ||**THRISSUR, PIN - 680020.**| |**4**|**INSPECTOR GENERAL OF REGISTRATION DEPARTMENT**| ||**DEPARTMENT OF REGISTRATION, VANCHIYOOR P.O.,**| ||**THIRUVANANTHAPURAM, PIN - 695035.**| **BY GOVERNMENT PLEADER SMT.POOJA SURENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.11.2018, ALONG WITH WP(C).23107/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NoS.23107 & 30480 of 2012** **3** ## **[CR]** ## **J U D G M E N T** [ WP(C).23107/2012 & WP(C).30480/2012 ] Identical issues relating to applicability of Article 48(a) of the Schedule of the Kerala Stamp Act, 1959 (for short, 'the Act') have been raised in both these writ petitions. 2. W.P.(C) No.23107/2012 has been filed by the petitioner, who is the grandson of deceased Ittayi, Mullothu House, Elamkulam Village. The petitioner contends that, after the death of said Ittayi, an extent of 0.25 Ares of land comprised in Survey No.47/4 of Elamkulam Village devolved upon the petitioner and legal heirs jointly. According to the petitioner, other than the petitioner, his sister Viji, the four children of deceased Ittayi, namely (1) Bose, (2) Santha, (3) Indira and (4) Baby and the children of Karthu (deceased daughter of Ittayi), namely (5) **WP(C).NoS.23107 & 30480 of 2012** **4** Mohanan, (6) Mani and (7) Vasanthakumari are the legal heirs of deceased Ittayi having right over the above said 0.25 Ares of land. The said legal heirs of deceased Ittayi jointly executed a Release Deed on 20.07.2012 in favour of the petitioner assigning their undivided share over the above property for consideration of `2,30,000/-. The petitioner contended that since the above Release Deed is one executed by the legal heirs of deceased Ittayi in favour of another one of the legal heirs, the petitioner had paid fixed stamp duty of `1,000/- as stipulated under Article 48(a) in the Schedule to the Act as amended by the Finance Act, 2011, which came into effect on 08.11.2011. When the petitioner and the executants presented the above Release Deed before the 3[rd] respondent-Sub Registrar for registration on 20.07.2012, the 3[rd] respondent impounded the Deed under Section 33 of the Act for the reason that the instrument is insufficiently stamped. The Sub Registrar informed the petitioner that the document is **WP(C).NoS.23107 & 30480 of 2012** **5** referred to the 2[nd] respondent for adjudication and further proceedings. 3. Subsequently, the 2[nd] respondent-District Registrar issued Ext.P3 notice dated 28.07.2012 to the petitioner informing that if the petitioner has anything to submit regarding the fixation of stamp duty on the impounded instrument, the same shall be submitted within seven days. The petitioner submitted Ext.P4 explanation justifying the payment of fixed stamp duty of `1,000/-. Thereafter, the 2[nd] respondent passed Ext.P5 order dated 08.08.2012 impounding the document with the finding that the transaction made by the document is one under Article 48(b) of the Schedule to the Act and hence, the petitioner was directed to pay stamp duty based on the consideration of `2,30,000/- at the rate of 9% and demanded the petitioner to pay `19,700/- towards deficit stamp duty and `200/- as fine. Hence, the petitioner filed the writ petition seeking to set aside Ext.P5 and to direct respondents 2 and **WP(C).NoS.23107 & 30480 of 2012** **6** 3 to register Ext.P1 Release Deed with fixed stamp duty of `1,000/- and registration fee of 1% of the consideration shown in the document and also to direct them to refund the excess registration fee remitted by the petitioner evidenced by Ext.P2 receipt. 4. The 2[nd] respondent contested the writ petition filing counter affidavit. The 2[nd] respondent stated that the impounded document has been executed by 8 persons. Executants 1 to 4 are the children of late Ittayi and executants 5, 6 and 7 are children of late Karthu, who was the daughter of Ittayi. The 8[th] executant is the daughter of late Dhanapalan, who was the son of late Ittayi. The claimant is also son of the said late Dhanapalan. From the above facts, it is clear that the relation between executants 1 to 4 and claimant of the document is that of legal heirs of deceased brother. The legal heirs of deceased brother do not come within the purview of Article 48(a) of the Act. To the contrary, they fall under Article 48(b) of Schedule II to the Act. The 2[nd] respondent, therefore, justified the **WP(C).NoS.23107 & 30480 of 2012** **7** impounding of the document. 5. In W.P.(C) No.30480/2012, the petitioner contended that late Kunju Ezhuthachan and his wife late Narayani had five children. Apart from the petitioner, the couple had children named Vijayan, Thankappan alias Chandran, Thankamani and Thanka alias Karthiayani. Petitioner along with Thankappan alias Chandran and Vijayan had purchased 7.69 Ares of property comprised in Survey No.736/3 of Vilvattom Village on 08.05.1973. Vijayan, one of the co-owners of the property, passed away in 1980 intestate without marrying. Thanka, one of the sisters of the petitioner, died in 1992. The said late Thanka left behind three legal heirs namely, Kochammini alias Vilasini, Omana and Santhakumari. On the death of the petitioner's brother Vijayan, his 1/3[rd] right devolved upon the legal heirs, who were the petitioner, his brother Chandran, his sister Thankamani and Thanka. The petitioner obtained Release Deeds from his brother Chandran in the year 1995 and his sister in the year 2012 over all the rights they had in **WP(C).NoS.23107 & 30480 of 2012** **8** the property. Similarly, three children of deceased sister Thanka executed a Release Deed in 2012 in favour of the petitioner. The document was executed on a stamp paper valuing `1,000/-. The documents so produced were impounded by the 2[nd] respondent-Sub Registrar under Section 33 of the Act and was forwarded to the 3[rd] respondent-District Registrar(General). But, the 3[rd] respondent-District Registrar issued Ext.P3 notice dated 22.11.2012. The petitioner filed Ext.P4 objection dated 27.11.2012 contending that the release deed is executed in favour of “legal heirs of deceased children” and hence, the transaction squarely comes under Article 48(a) of the Schedule to the Act. 6. The 3[rd] respondent-District Registrar contested the writ petition filing counter affidavit. In his counter affidavit, the 3[rd] respondent stated that in Article 48 of the Schedule to the Act, it is clearly mentioned that if release is in favour of father, mother, grandfather, grandmother, husband, wife, son, daughter, brother, sister, grandchildren **WP(C).NoS.23107 & 30480 of 2012** **9** or legal heirs of the deceased children, the document is to be stamped as per Article 48(a). In all other cases, it is to be stamped as 6% of the value. The contention of the petitioner that the deceased child of Kunju Ezhuthachan being Vijayan, any release in favour of any one of the legal heirs of the deceased child will come under a release in favour of the legal heirs of the deceased children, has no legal basis. Firstly, the property belonged to Kunju Ezhuthachan, the father of Vijayan. If the property was belonging to Kunju Ezhuthachan, the executants can be treated as legal heirs of the deceased child (Thanka alias Karthiayani). However, in the case on hand, the claimant will not come under the purview of legal heirs of the deceased children. The 3[rd] respondent, hence, contended that the document in question should be treated as one for which stamp duty is leviable as per Article 48(b) of the Act. 7. I have heard the learned counsel for the petitioners appearing in W.P.(C) No.23107/2012 and W.P. (C) No.30480/2012. The counsel for the petitioner in W.P. **WP(C).NoS.23107 & 30480 of 2012** **10** (C) No.23107/2012 argued that respondents 2 and 3 failed to note that the executants in the instrument are all legal heirs of Ittayi and their undivided share over the property scheduled to the deed was assigned to the petitioner, who is also one of the legal heirs of late Ittayi and, therefore, the instrument falls under Article 48(a). The counsel vehemently contended that the respondents misunderstood the intention of the Legislature in effecting an amendment by Finance Act, 2011, which came into effect on 08.11.2011. By the said amendment, the words “grandchildren, brother, sister or legal heirs of the deceased children of a person” have been incorporated substituting the words “brother or sister of a person”. 8. The counsel for the petitioner in W.P.(C) No.30480/2012 contended that Article 48(a) of the Schedule to the Act deals with situations where release are effected by persons, who renounced a claim upon another person or against any specified property. It also says that when such release operates in favour of father, mother, **WP(C).NoS.23107 & 30480 of 2012** **11** grandfather, grandmother, husband, wife, son, daughter, brother, sister, grandchildren, or legal heirs of the deceased children of a person, the stamp duty that is to be paid for such a document is `1,000/-. In the case on hand, Vijayan, one of the sons of Kunju Ezhuthachan died resulting in vesting of a share of the property of the deceased in favour of his sister Thanka and on the demise of Thanka, the property devolved on Kochammini, Omana and Santhakumari being her legal heirs. The petitioner, his brother and sister, and the three children of the deceased sister of the petitioner are legal heirs of deceased Vijayan. Thus, the release deed in question has been executed by the three children of the petitioner's deceased sister in favour of the petitioner. Hence, it is Article 48(a) of the Schedule that will be applicable. The counsel for the petitioner also urged that the judgment reported in _**Manuel v. State of Kerala** [2012 (4) KLT 558]_ is squarely applicable. The Government Pleader strongly opposed the contention and brought to the notice of the Court the **WP(C).NoS.23107 & 30480 of 2012** **12** judgments in _**Abdul Muneer and another v. Sub Registrar, Tirur and others** [2018 (1) KHC 207 (FB)],_ _**State of Kerala v. Jose** [2013 KHC 3312]_ and _**State of Kerala v. Shibu** [2015 (4) KHC 698]_ . 9. I have perused the pleadings in the case and heard the arguments advanced by the counsel on either side. In both the writ petitions, the Deeds executed are admittedly Release Deeds whereby a person/persons renounced a claim upon another person or persons against specified property. Therefore, the Deeds will squarely fall under Article 48 of the Schedule to the Act. Article 48 of the Schedule, as it stood at the relevant time, reads as follows:- 48. Release, that is to say, any instrument (not being such a release as is provided for by Section 21 whereby a person renounces a claim upon another person or against any specified property (a) When such release operates in favour of father, mother, grandfather, grandmother, son, daughter, brother, sister, brother, sister, grandchildren, legal heirs of the Rupee 1/- for every Rs.100/- or part thereof of the amount of the fair value of the land and husband, wife, the value of the other properties or claims of which the right or is relinquished or the value of all the **WP(C).NoS.23107 & 30480 of 2012** **13** |deceased children of a person|properties or claims of which the<br>right is relinquished in proportion to<br>the<br>right<br>relinquished<br>or<br>consideration for the release,<br>whichever is higher, subject to a<br>maximum of Rupees 1,000/-| |---|---| |(b) in any other case|The same duty as conveyance<br>(No.11 or 22, as the case may be)<br>for such amount at value of the<br>property or claim or fair value of the<br>land of which the right is<br>relinquished in proportion to the<br>right relinquished or consideration<br>for the release whichever is higher.| 10. From Article 48, it is evident that the lower rate of stamp duty will apply only when such release deed operates in favour of father, mother, husband, wife, son, daughter, grandchildren, brother, sister or legal heirs of the deceased children of a person. In W.P.(C) No.23107/2012, the relation between executants 1 to 4 and the petitioner is legal heirs of deceased brother, which is not coming under the purview of Article 48(a). The relation between executants 5 to 7 and the petitioner is that of cousin brothers and sisters which will also not fall under Article 48(a). Under the circumstances, the document can fall only under Article 48(b). **WP(C).NoS.23107 & 30480 of 2012** **14** 11. In W.P.(C) No.30480/2012, the petitioner is not father, mother, husband, wife, son, daughter, grandchild, brother, sister or legal heirs of the deceased children. Therefore, the petitioner cannot contend that the document in question should be levied under Article 48(a). 12. The learned counsel for the petitioner further argued that if a Release Deed made by an uncle to a nephew can fall under Article 48(a), there is no reason to say that a Release Deed executed by nephews in favour of uncle should not fall under Article 48(a). The said argument cannot be accepted because the Act is basically a fiscal statute and hence, it has to be interpreted strictly. When the language of the provisions are clear and unambiguous, logical reasonings have no place in interpreting the provisions of the Act. 13. In the Full Bench judgment of this Court in _**Abdul Muneer** (supra)_ , the Full Bench considered an earlier Division Bench judgment, namely _**State of Kerala v. Shibu** [2015 (4) KHC 698]_ . The Full Bench, after examining the **WP(C).NoS.23107 & 30480 of 2012** **15** provisions in detail, held that as far as release deeds are concerned, the provisions of Article 48 of the Act would concede to a lower stamp duty only if the beneficiary under the deed is the father, mother, husband, wife, son, daughter, grandchildren, brother, sister or legal heirs of the deceased children of a person vis-a-vis the executant of the release deed and in no other case. The concept of definition of a 'family' as provided in Article 42 would not be applicable at all. What is relevant is the relationship of the executor/executors with the beneficiary of the release deed and if such relationship is one of the enumerated types specifically shown in Article 48, then alone, the benefit of a lower stamp duty under Article 48(a) would be obtained and in no other case. 14. In the judgment in _**State of Kerala v. Shibu** [2015 (4) KHC 698]_ , a Division Bench of this Court held that the criteria or basis for fixing stamp duty is 'relationship' between the person executing the release deed and the person in whose favour the Release Deed is executed. **WP(C).NoS.23107 & 30480 of 2012** **16** 15. In view of the law laid down by the Division Bench of this Court in _**State of Kerala v. Shibu** [2015 (4) KHC 698]_ and in the light of the approval granted by a Full Bench of this Court to the said judgment as per judgment in _**Abdul Muneer** (supra)_ , I find that the stand taken by the State of Kerala and official respondents is perfectly legal and justified. In the circumstances, there is no reason to interfere with the action of the respondents in the above two writ petitions. Both the writ petitions, therefore, fail and are dismissed. Sd/- **N.NAGARESH JUDGE** aks/19.11.2018 **WP(C).NoS.23107 & 30480 of 2012** **17** ## **APPENDIX OF WP(C) 23107/2012** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE FILING SHEET OF THE ABOVE DOCUMENT** **EXHIBIT P2 TRUE COPY OF REGISTRATION FEE RECEIPT ISSUED BY THE 3RD RESPONDENT DATED 20-7-2012 EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER DATED 28-7-2012 EXHIBIT P4 TRUE COPY OF EXPLANATION SUBMITTED BY THE PETITIONER DATED 8-8-21012 EXHIBIT P5 THE TRUE COPY OF ORDER PASSED 2ND RESPONDENT DATED 8-8-2012** **WP(C).NoS.23107 & 30480 of 2012** **18** ## **APPENDIX OF WP(C) 30480/2012** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 30.11.2012** **EXHIBIT P2 TRUE COPY OF HE RELEASE DEED DATED 15.11.2012 EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 22.11.2012 EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BEFORE THE 3RD RESPONDENT BY THE PETITIONER DATED 27.11.2012**