Mohanan v. Sub Registrar, Office of the Sub Registrar, Kodaly - 680 699; The Registrar General, Office of the District Registrar General, Chembukavu, Thrissur - 680020; The District Collector, Collectorate, Ayyanto le, Thrissur - 680003

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943** ## **WA NO. 982 OF 2021** ## **AGAINST THE JUDGMENT IN WP(C) 4568/2021 OF HIGH COURT OF KERALA, ERNAKULAM** ## **APPELLANTS:** ## **MOHANAN** **AGED 61 YEARS S/O.LATE VELAYUDHAN, PUTHENCHIRA HOUSE, MATTATHUR VILLAGE, NOOLUVALLY DESOM, CHEMBUCHIRA POST, CHALAKUDY TALUK, TRISSUR DISTRICT.** **BY ADV T.N.MANOJ** ## **RESPONDENTS:** |**1**|**THE SUB REGISTRAR,**| |---|---| ||**OFFICE OF THE SUB REGISTRAR, KODALY - 680 699.**| |**2**|**THE REGISTRAR GENERAL**| ||**OFFICE OF THE DISTRICT REGISTRAR GENERAL, CHEMBUKAVU,**| ||**TRISSUR - 680020.**| |**3**|**THE DISTRICT COLLECTOR**| ||**COLLECTORATE, AYYANTHOLE, TRISSUR - 680 003.**| ## **SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER FOR RESPONDENTS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2021, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.982 of 2021 2 ## **JUDGMENT** Dated this the 1[st] day of November, 2021 ## **SHAJI P.CHALY,J.** Writ petitioner has preferred this appeal against the judgment of a learned Single Judge in W.P.(C) No.4568/2021 dated 12.7.2021, whereby the writ petition was dismissed. The primary relief sought for by the appellant before the writ court was to quash Exhibit P5 order passed by the District Registrar General/Collector, Thrissur dated 2.2.2021 as per the provisions of the Kerala Stamp Act, 1959, hereinafter called, “Act, 1959”. Consequent to which, the appellant is liable to pay the stamp duty as per Article 42(b) of the Schedule to the Kerala Stamp Act, 1959 at the rate of 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 in regard to the deed of partition defined under section 2(k) of the Act, 1959, in regard to a partition deed executed by and between the appellant and other family members, who are the descendants of one Vallon and Kurumba. It is thus challenging the legality and correctness of the Judgment the appeal is filed. The basic 3 W.A.No.982 of 2021 material facts for the disposal of the writ appeal are as follows: 2. Appellant is a co-owner of the property held jointly by the legal heirs and successors in interest of late.Vallon and his wife late Kurumba. The writ petition was filed for and on behalf of other co-owners also. Vallon, the grandfather of the appellant, held the property as a 'verum Pattamadhar' under Erannoor Mana (illam). The right, title and interest of the landlord viz., Erannoor Mana was later assigned in favour of the legal heirs and successors in interest of Pattamdhar viz., Vallon, by virtue of Exhibit P1 purchase certificate issued by the Special Tahsildar, Thrissur dated 24.5.2013. The family lineage can be demonstrated as follows; 3. Vallon married Kurumba and two children were born out of the said wedlock viz., Kurumba and Thalary. Kurumba got married to Puthenchira Velayudhan and Thalary got married to Koran. Kurumba and Velayudhan had six children viz., Mohanan – the appellant herein, Prasad, Sarada, Lalitha, Padmini and Rajitha. Thalary and Koran had one son viz., Velayudhan. Velayudhan married Vally and they had two children viz., Prateesh and Pradeeja. In order to effectively demonstrate the lineage, family tree of the co-owners was produced before the writ court as Exhibit P3, which is extracted hereunder: W.A.No.982 of 2021 4 ## **- FAMILY TREE OF THE CO OWNERS** ## **Vallon & Kurumba** **==> picture [364 x 219] intentionally omitted <==** **----- Start of picture text -----**<br> (2 children)<br>Kurumba (died) (died) Thalary<br>Mohanan Prasad Sarada Lalitha Padmini Rajitha<br> (6 children)<br>Velayudhan (son) (died)<br>**----- End of picture text -----**<br> Pratheesh (son) Pratheeja (daughter) Vally (wife) 4. Vallon and his wife died intestate. Similarly their children Kurumba as well as Thalary also died intestate, leaving behind their children being the grand children to succeed to the estate left behind by their grandfather, i.e, six children in the lineage of Kurumba and Puthenchira Velayudhan. Son of late Thalary viz., Velayudhan also died. He is succeeded by his wife and two children specified above. According to the appellant, since the properties were held in common by the parties, who are admittedly co-owners, had decided to effect partition of W.A.No.982 of 2021 5 property covered by Exhibit P1 purchase certificate issued by the Land Tribunal under section 72 of the Kerala Land Reforms Act, 1964 dated 24.5.2013, in favour of the appellant and his five siblings, who are under the lineage of vallon and Kurumba and the wife and two children of Velayudhan - son of Thalary. Accordingly, Exhibit P2 partition deed dated 19-01-2021 was prepared in stamp paper worth Rs.1000/- as provided under article 42(a) of the Schedule to the Kerala Stamp Act, 1959 since the partition, according to the appellant, is to take place among all or any of the members of the family and the legal heirs of the deceased family members, if any. In the said partition deed, there are nine parties, who according to the appellant, are all co-owners that is to say, the first six of them are the grandchildren of late puthenchira Velayudhan and late Kurumba viz., the appellant and his five siblings, and the other three being children and the wife of late Velayudhan son of late Thalary, being the legal heirs entitled to succeed to her estate. 5. However, when Exhibit P2 partition deed was presented for registration before the office of the Sub Registrar, Kodali, Thrissur District – the 1[st] respondent, he refused to register the same holding that since the parties to the partition do not come within the ambit of the word W.A.No.982 of 2021 6 “family” as defined under section 2(fb) of the Act, 1959, the stamp duty payable is not Rs.1,000/-, but in accordance with the duty prescribed under Article 42(b) of the Schedule to the Stamp Act, ie. at the rate of 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. 6.Thereupon, appellant preferred an application before the District Collector, Thrissur under section 31 of the Act, 1959, requesting to adjudicate the proper stamp duty payable to the deed of partition. However, the 3[rd] respondent has relegated the parties to appear before the Registrar General, Thrissur – the 2[nd] respondent . Accordingly, the 2[nd] respondent, after adjudication, has passed Exhibit P5 order adjudicating that the appellant and other co-owners are liable to pay the stamp duty as per Article 42(b) of the Schedule to the Kerala Stamp Act, 1959. It was thus challenging the legality and correctness of Exhibit P5, the writ petition was filed. 7. A detailed counter affidavit was filed by the District Registrar General, Thrissur, before the writ court justifying the adjudication made in Exhibit P5. It was contended that the appellant is one of the co-owners W.A.No.982 of 2021 7 of the property held jointly by the legal heirs and successors of late Vallon and his wife, late Kurumba. Even according to the 2[nd] respondent, the right of landlord viz., Erannoor Mana, was later assigned to the legal heirs and successors in interest of original pattamadhar viz., Sri.Vallon by virtue of ExtP1 purchase certificate issued by the Special Tahsildar, Thrissur, dated 24[th] May, 2013. The prime contention put forth by the 2[nd] respondent was that as per Article 42(a) of the Act, 1959, where the partition is among all or any of the members of the family and legal heirs of the deceased family members, if any, alone are entitled to claim the reduced stamp duty. It was the further contention of the Registrar General that as per section 2(fb) of the Act, 1959, a 'family' is defined to mean, father, mother, grandfather, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grandchildren, brother and sister alone but will not include the legal heirs of the deceased family member as contended by the appellant. It is the further contention that in the case of a family, if any of the members of the family dies, his legal heirs can join in the partition deed as a family member and it should be a partition by and between the legal heirs of the deceased family member. However, in the case at hand, the parties in Exhibit P2 partition deed are W.A.No.982 of 2021 8 in joint ownership of the property but it cannot be considered as one family not being the heirs of the same branch from the lineage of late Vallon and late Kurumba. The reason assigned by the Registrar General for contending so is that in the partition deed in question, two families are included in one document and therefore, such a document cannot claim lower stamp duty under the definition of family and further that lower stamp duty can be given only for the partition between the members of one family and the legal heirs of deceased family members. 8. Therefore, the sum and substance of the contention is that in the partition deed, party numbers 1 to 6 – the grandchildren of Vallon and Kurumba ie., the children of Kurumba are only the members of the family in contemplation of section 2(fb) of Act 1959 . But party numbers 7 to 9 in the partition deed are the members of the family of Sri.Velayudhan, son of Thalary and great grandchildren of Kurumba can only be considered as two different and distinct families, and therefore, they are not entitled to secure the benefit of lesser stamp duty prescribed under Article 42(a) of the Schedule to Act, 1959. 9. After considering the rival submissions and following a Full Bench judgment of this Court in **Abdul Muneer and another v. Sub** W.A.No.982 of 2021 9 **Registrar, Tirur and others** [2018 (1)KLT 238] learned Single judge held that it is clear from the definition of “family” provided in section 2(fb) of the Act, 1959 that the grandchildren of Thalary and the great grand children of Kurumba will not come under the said definition, for the reason that they are grandchildren and great grandchildren to Kurumba and Thalary and therefore, the stand adopted by the Registrar General in Exhibit P5 is perfectly valid. 10. We have heard, learned counsel for the appellant Sri.T.N.Manoj, learned Senior Government Pleader Sri.K.P.Harish appeared for the officials of the State, and perused the pleadings and materials on record. 11. Learned counsel on either side have addressed their arguments in accordance with the rival submissions as discussed above which are undisputed in nature and therefore, we propose to proceed to adjudicate the issue on the question of law as is discernible from Article 42(a) of the Schedule to the Stamp Act, 1959. The learned Single Judge has arrived at the conclusion, as we have pointed out above, not only on the basis of the provisions of the Act, 1959, but also on the basis of the proposition of law laid down by the Full Bench of this Court in Abdul Muneer supra. Article 42(a) prior to the amendment and after the amendment can be W.A.No.982 of 2021 10 made the focus of the adjudication of the issue for a better understanding, and therefore, we extract the provisions accordingly: ||**Unamended Sl.No. 42(a) of the**<br>**Stamp Act**|**Unamended Sl.No. 42(a) of the**<br>**Stamp Act**||**Amended Sl.No. 42(a) of the**<br>**Stamp Act**|**Amended Sl.No. 42(a) of the**<br>**Stamp Act**| |---|---|---|---|---|---| ||**42.**<br>**Partition**<br>**–**<br>Instrument of<br>(as defined by section<br>2(k)<br>(i) Where the partition is<br>among all or some of the<br>family members<br>(ii) in any other case<br>[Explanation – Family<br>means father, mother,<br>grandfather,<br>grandmother, husband,<br>wife, son, daughter,<br>grandchildren, brother,<br>sister and legal heirs of<br>the deceased children, if<br>any, as the case may be.]|[One rupee for every<br>rupees 100 or part<br>thereof of the fair value<br>of the separated share or<br>shares of land and the<br>value of other properties<br>in such separated share<br>or shares set forth in the<br>instrument or of the<br>value of all the properties<br>of the separated share or<br>shares as set forth in the<br>instrument, whichever is<br>higher, subject to a<br>maximum of rupees<br>1000]<br>[Six rupees for every<br>rupees 100 or part<br>thereof of the amount of<br>the value or fair value of<br>the separated share or<br>shares of the property,<br>whichever is higher]||**42.**<br>**Partition**<br>**–**<br>Instrument of<br>(as defined by section<br>2(k)<br>(i) Where the partition<br>is among all orany of<br>the<br> members of the<br>family and legal heirs<br>of the deceased family<br>member, if any<br>(b)in any other case|[Fifteen rupee for every<br>rupees 10,000 or part<br>thereof of the fair value<br>of the separated share<br>or shares of land and<br>the value of other<br>properties in such<br>separated share or<br>shares set forth in the<br>instrument or of the<br>value of all the<br>properties<br>of<br>the<br>separated share or<br>shares as set forth in<br>the<br>instrument,<br>whichever is higher,<br>subject to a minimum<br>of rupees 1000].<br>[Six rupees for every<br>rupees 100 or part<br>thereof of the amount<br>of the value or fair<br>value of the separated<br>share or shares of the<br>property, whichever is<br>higher]| 11 W.A.No.982 of 2021 12. Likewise, section 2(fb) and 2(k) of Act, 1959 are relevant and they are read thus: “2(fb) “family” means father, mother, grandfather, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grandchildren, brother and sister. 2(k) “instrument of partition” means any instrument whereby coowners of any property divide or agree to divide such property in severality, and includes also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an arbitrator directing a partition.” 13. On analysis of the provisions, there is no doubt that once it is found that the appellant and the grandchildren of Thalary would not come under the term, “family”, the parties to Ext P2 partition deed are not entitled to the benefit of lesser stamp duty of Rupees 1,000, or to put it otherwise, they are liable to pay the stamp duty at the rate of rupees six per 100 rupees or part thereof of the amount of the value or fair value of the separated share or shares of the property, whichever is higher. 14. On a reading of the explanation contained under Article 42 as it stood prior to the amendment demonstrable from the extracted provisions, it defines the 'family' to mean father, mother, grandfather, grandmother, husband, wife, son, daughter, grandchildren, brother, sister W.A.No.982 of 2021 12 and legal heirs of the deceased children, if any, as the case may be. 15. Therefore, Article 42 (i) as it originally stood deals with the partition among all or some of the family members defined under the explanation thereto. The explanation makes it clear that the family under section 42(1) includes only the grandchildren, and not the legal heirs of the deceased family member, if any, as per the amended provision, apart from the other members of the family contained under the explanation. 16. Now see Article 42 as amended; sub-article (a) specifies that “where the partition is among all or any of the members of the family and legal heirs of the deceased family member, if any”. Therefore, a subtle distinction is discernible from the provision that remained before the amendment, and after the amendment, that under the old provision there was no scope for considering the legal heirs of the deceased family member, if any, as is provided under the amended Article 42(a) of Act, 1959. Section 2(fb) of Act is introduced as per the amendment, virtually replacing the explanation contained in Article 42 of the old Act which defines the 'family' to mean, father, mother, grandfather, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grand children, brother and sister. Even though the 'family' defined under W.A.No.982 of 2021 13 section 2(fb) apparently stop with the grandchildren i.e., in the instant case upto Velayudhan, from the lineage of Thalary, daughter of Vallon and Kurumba, it has no independent existence secluded from Article 42 (a). In other words, a harmonious construction of the above provisions are required in order to make the amended provision of article 42(a) of Act 1959 meaningful and purposive, so as to extend more advantage to the members of the family in the matter of execution of a partition deed . 17.Be that as it may, if section 2 (fb) is read together with Article 42(a), the amended provision, it is clear that as per the amendment, the legislature intended to include also the legal heirs of the deceased family member, if any. Which thus means the son of Thalary viz., Velayudhan is to be construed as a legal heir of Vallon and Kurumba i.e., father and mother of Thalary, and therefore, consequent to his death, wife and children of Velayudhan would become the legal heirs of the deceased family member, if any, as is contemplated in section 42 (a) to secure the benefit of lesser stamp duty . 18. In our view, in order to have clarity, the issue has to be visualised and considered treating the property of Vallon and Kurumba remaining undivided as one unit ever since the possession enjoyed by W.A.No.982 of 2021 14 them, against which Exhibit P1 purchase certificate was secured by grandchildren and great grandchildren of Vallon and Kurumba the predecessors in title of the property. That apart it is also evident that the amendment was brought to Article 42 (a) of the Act, 1959 for the purpose of including more number of persons in the concept of family and that is why quite distinct from old Article 42(1), the amended Article 42(a) has included “ all the members of the family and legal heirs of the deceased family member, if any, instead of some of the family members” as per the old Article 42(1), and further, adopted children are also included. 19. Even though the learned Single Judge has relied upon the judgment of a Full Bench of this Court in **Abdul Muneer** supra, the issue considered therein was, whether there is any inter-connecting relationship by and between Article 42 and Article 48 of the Schedule to the Act, 1959. 20. Anyhow after considering the entire aspects, it was held that Articles 42 and 48 of the Schedule to Act, 1959 are independent and unrelated provisions and they are complete code in themselves and hence, what is prescribed in one cannot be imported into other. It is also W.A.No.982 of 2021 15 relevant to note that the Full Bench judgment was rendered prior to the amendment of Article 42 and introducing section 2(fb) of the Act, 1959, and solely relying upon the provisions of Article 42, stood prior to the amendment and the explanation thereto. Therefore, we are of the view that the judgment of the Full Bench in **Abdul Muneer** is not a proposition of law that can be applied to the case at hand. 21. Assimilating the factual and legal situations as discussed above, we are of the considered opinion that the wife and children of Velayudhan under the lineage of Thalary, daughter of Vallon and Kurumba would include in the category of legal heirs of the deceased family member, if any, in contemplation of the law. In that view of the matter, we have no doubt in our mind that the judgment of the learned Single Judge requires interference. 22. Accordingly, we set aside Exhibit P5 order passed by the Registrar General, Thrissur dated 2.2.2021 bearing No.INS 566/2021/Thrissur , and hold that the partition deed viz., Exhibit P2 executed by and between Mohanan, the appellant and his siblings viz., Prasad, Sarada, Lalitha, Padmini & Rajitha - children of Kurumba and grandchildren of Vallon and Kurumba, and Pratheesh, Pradeeja & Vally - W.A.No.982 of 2021 16 children and wife of Velayudhan, respectively, who is the son of Thalary and great grandchildren of Vallon and Kurumba, are members of family in accordance with the amended provisions of article 42(a) read along with section 2(fb) and section 2(k) of the Act, 1959, entitled to lesser stamp duty as is prescribed under article 42(a) of the Act, 1959, and consequently there will be a direction to the Sub Registrar, Kodaly, Thrissur District, to register the partition deed executed by and between the parties referred to above on presentation, within two weeks from the date of the Judgment. In the result, appeal is allowed. Sd/- **S. MANIKUMAR, CHIEF JUSTICE.** Sd/- **SHAJI P. CHALY, JUDGE.** smv