Padmini and others v. Sub Registrar, Office of the Sub Registrar, Puthencruz; District Registrar, Ernakulam; State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **MONDAY, THE 20TH DAY OF MAY 2013/30TH VAISAKHA 1935** ## **WP(C).No. 2647 of 2013 (E)** ## **---------------------------** ## **PETITIONER(S):** **--------------------------** **1. PADMINI, AGED 58 YEARS, W/O.C.N. KRISHNAN @ ARAVINDAKSHAN NAIR, RESIDING AT AMBALAKATTU HOUSE, KUMARAPURAM P.O., PIN-683 565, KUNNATHUNADU VILLAGE AND TALUK.** **2. SIVADAS KRISHNAN, AGED 31 YEARS,** - **S/O.C.N.KRISHNAN @ ARAVINDAKSHAN NAIR, RESIDING AT AMBALAKATTU HOUSE, KUMARAPURAM P.O., PIN-683 565, KUNNATHUNADU VILLAGE AND TALUK.** **3. SMITESH KRISHNAN, AGED 26 YEARS, S/O.C.N. KRISHNAN @ ARAVINDAKSHAN NAIR, RESIDING AT AMBALAKATTU HOUSE, KUMARAPURAM P.O., PIN-683 565, KUNNATHUNADU VILLAGE AND TALUK.** **4. SMITHA DEVI, AGED 36 YEARS, D/O.C.N. KRISHNAN @ ARAVINDAKSHAN NAIR, RESIDING AT AMBALAKATTU HOUSE, KUMARAPURAM P.O., PIN-683 565, KUNNATHUNADU VILLAGE AND TALUK.** **BY ADVS.SRI.K.C.ELDHO, SRI.JIJO THOMAS.** **RESPONDENT(S): -------------------------** **1. THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, PUTHENCRUZ, PUTHENCRUZ P.O., PIN-682 308, ERNAKULAM DISTRICT.** ## **2. THE DISTRICT REGISTRAR,** - **OFFICE OF THE DISTRICT REGISTRAR, ERNAKULAM, RAILWAY STATION ROAD, ERNAKULAM SOUTH, PIN-682 018.** ## **3. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REGISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **BY GOVT. PLEADER MR.RAJEEV K.K.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-03-2013, THE COURT ON 20-05-2013 DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 2647 of 2013 (E)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1: TRUE COPY OF THE PURCHASE CERTIFICATE NO.1762/1977 DT. 19-09-1977 OF PERUMBAVOOR LAND TRIBUNAL.** **EXHIBIT P2: TRUE COPY OF THE SETTLEMENT DEED NO.2499 OF 1978 OF AIKKARANAD SRO.** - **EXHIBIT P3: TRUE COPY OF THE TAX PAID RECEIPTS NO.3244564 DT. 30-04-2012.** **EXHIBIT P3(A): TRUE COPY OF THE TAX PAID RECEIPTS NO.3244565 DT. 30-04-2012.** **EXHIBIT P4: TRUE COPY OF THE DEATH CERTIFICATE DT. 09-04-2012 OF LATE C.N.KRISHNAN.** **EXHIBIT P5: TRUE COPY OF THE RATION CARD NO.1738082388 IN THE NAME OF C.N.KRISHNAN.** **EXHIBIT P6: TRUE COPY OF THE PARTITION DEED DT. 12-01-2013 JOINTLY EXECUTED BY THE PETITIONERS AND RADHA.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1A COPY OF THE JUDGMENT IN W.P.(C)NO. 26140/2012. EXT.R1B COPY OF THE JUDGMENT IN W.P.(C)NO. 23915/2012. EXT.R1C COPY OF THE JUDGMENT IN W.A. NO. 1697/2012.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No.2647 OF 2013** ......................................................................... **Dated this the 20[th] May, 2013** ## **J U D G M E N T** Whether the petitioners do come within the purview of the e term 'family' as given in the 'Explanation' to Article No.42(i) of the Schedule to the Kerala Stamp Act, 1959 to have the benefits flowing therefrom, by satisfying the maximum stamp duty of Rs.1000/- for registering the 'partition deed' among the members concerned, is the issue involved herein. 2. The first petitioner is the widow of one C.N. Krishnan and the other petitioners are their children. Krishnan was having two sisters by name Lakshmi Amma and Radha @ Radhamma. The father of Krishnan, by name Narayanan, was the 'pattom tenant' of the property having an extent of 32.38 ares of land comprised in Sy.No.360/8 and 531/1A of Kunnathunadu Village. The aforesaid Narayanan and his wife Kunji Amma died intestate and the property came to be devolved upon their children C.N. Krishnan , Lakshmi Amma and Radha @ Radhamma. Out of the total extent as above, **W.P.(C)No.2647 OF 2013** **2** 'Jenmam right' over 24.28 ares was assigned by the Government in favour of C.N. Krishnan , Lakshmi Amma and Radha @ Radhamma being the legal heirs of Narayanan, as borne by Ext.P1 Purchase Certificate dated 19.09.1977 of the Land Tribunal, Perumbavoor. Some extent of the property was subsequently acquired by the Government for Periyar Valley Irrigation Project Canal, and that out of the remaining property, 1/3[rd] share belonging to Lakshmi Amma came to be settled in the name of her brother C.N. Krishnan, as per Ext.P2 Settlement Deed of SRO, Aikkaranad. After the demise of C.N. Krishnan, who took his last breath on 26.03.2012, as borne by Ext.P4 death certificate, the petitioners are enjoying the said property being the legal heirs of the deceased Krishnan, along with Radha @ Radhamma, who is having 1/3[rd] rights over the property as coowner. 3. So as to facilitate better enjoyment of the property, the petitioners and the aforesaid Radha @ Radhamma sought to effect partition of the property by Executing Ext.P6 partition deed dated 12.01.2013. But when it was taken up for registration, **3** ## **W.P.(C)No.2647 OF 2013** the first respondent refused to have it registered, stating that the petitioners do not come within the term 'Family', as contemplated under Article 42(i) read with the 'Explanation', of the Schedule to the Kerala Stamp Act and that higher stamp duty was payable as provided under Article 42(ii) of the Schedule. 4. Mr. K.C. Eldho. the learned Counsel for the petitioners submits that the very idea and understanding of the first respondent/registering authority as to the purpose of the enactment and the definition of the term 'Family' as it now stands after the amendment (which gives a wider definition) is quite wrong and misconceived. It is also stated that the issue is clearly covered by the judgment rendered by this Court in _**Bahuleyan and others vs. District Registrar, Thrissur and another**_ [ **2012 (4) KHC 268** = **2012 (4) KLT 356** ] and that the petitioners are entitled to have the benefit of lesser stamp duty as provided under Article 42(i) of the Schedule to the Kerala Stamp Act. 5. The learned Government Pleader appearing for the respondents contends that the petitioners are liable to pay the **W.P.(C)No.2647 OF 2013** **4** stamp duty as provided under Article No.42 (ii) of the Schedule to the Kerala Stamp Act. It is contended that the term 'family' is clearly defined as per the explanation given under the provision, which does not take in the petitioners and Radha @ Radhamma (the sister in law of the 1[st] petitioner and paternal aunt of the petitioners 2 to 4), to have the benefit of lesser stamp duty under Article No. 42(i) of the Schedule of the Act. The learned Government Pleader also points out that the decision sought to be relied on by the petitioners, i.e. the decision in [ **2012 (4 KHC 268** cited supra) was intercepted by a Division Bench of this Court, as per the judgment dated 29.11.2012 in W.A.No.1697 of 2012 (reported in **2013(1) KLT 831** ). The Finance Act, 2011, by way of amendment introduced a beneficial provision for satisfying stamp duty to a lesser extent, if the partition is among all or some of the members of the 'family'. Article 42(i) of the Schedule to the Kerala Stamp Act and the 'Explanation' thereunder clearly denotes that in such cases the stamp duty payable as per the amendment, is only to the extent of Re. 1/- for every 100 rupees or part thereof, subject to a **5** ## **W.P.(C)No.2647 OF 2013** maximum of Rs.1000/-. So as to have the above benefit, the partition has necessarily to be among the members of the 'family' within the specified extent of relationship as it appears under the 'Explanation' given. 6. It is true, that there may be several members in a family. But the benefit of paying lesser stamp duty in the case of a partition within the family was thought of and brought about only in respect of persons/members, who are clearly mentioned under the head 'Explanation'. The legislative wisdom or reason for fixing the boundaries to the appropriate extent is beyond the scrutiny of this Court. Unless the parties specifically do come within the parameters prescribed, the benefit intended to be provided to such deserving category cannot be extended or widened. The term 'Family' as incorporated under the head 'Explanation', before the amendment of the Statute, meant only husband, wife, children and the legal heirs of the deceased children, if any, as the case may be. But, after the amendment , the term 'Family' means father, mother, husband, wife, son, daughter, grand children, brother, sister, legal heirs of the **6** ## **W.P.(C)No.2647 OF 2013** deceased children, if any, as the case may be. 7. Applying the legal position to the given set of facts and circumstances, it is seen that Narayanan, father of C.N. Krishnan was 'pattom tenant' of the property which was later assigned by the Government in favour of C.N. Krishnan and his sisters Lakshmi Amma and Radhamma, being the legal heirs of Narayanan. Lakshmi Amma later executed settlement deed in favour of C.N. Krishnan in respect of her 1/3[rd] undivided share of the property; and thus C.N. Krishnan and Radhamma became the joint owners of the property. C.N. Krishnan died intestate and his two third rights over the undivided property devolved upon his wife and children, who are the petitioners 1 to 4 herein. The petitioners 1 to 4 and Radhamma are thus in joint ownership, possession and enjoyment of the property which is now partitioned among them for better enjoyment of the property. Going by the terms of the Explanation, it was very much possible to have the property partitioned among the petitioners 1 to 4 and Radhamma, availing the benefit of lesser stamp duty under Article 42(i) of the Schedule to the Act. Along with the wife, **7** ## **W.P.(C)No.2647 OF 2013** sons and daughters, the sister as well, if any, is also taken care of, to be included within the term 'Family', in the present case. This Court is of the view that the purpose of legislation has to be given effect to, while interpreting the provision and merely for the reason that C.N. Krishnan is no more, the benefit which otherwise could have been drawn by him, had he effected the partition with his sister during his life time, cannot be simply denied to the petitioners 1 to 4 , they being his legal heirs. 8. During the course of hearing, a recent decision rendered by a Division Bench of this Court headed by the Hon'ble the Chief Justice as reported in **2013 (1) KHC 765 (DB** )= **2013** **(1) KLT 825** [ _**State of Kerala and others vs. Manuel**_ ] was also brought to the notice of this Court. The above decision, rendered on 01.03.2013 has also taken note of the earlier decision rendered by the Bench in W.A.No.1697 of 2012 reported in **2013 (1) KLT 831** cited from the part of the State. 9. After considering the matter elaborately, it was observed in paragraph '6' as follows: **8** ## **W.P.(C)No.2647 OF 2013** _“6. On a reading of the amendment, the word “family” includes father, mother, son, daughter, brother, sister, legal heirs of deceased children and so on and so forth, as extracted above. It cannot be gainsaid that only if a father and mother are alive, the children could be considered as having the status of sons and daughters and otherwise they would only be brothers and sisters. Any permutation and combination of the persons mentioned in the definition of 'family' would be entitled to have a partition claiming the benefit of lesser Stamp duty as is provided in Serial No.42(i) of the Schedule to the Stamp Act.”_ 10. From the above, it is clear that any permutation and combination of persons mentioned in the definition of the term 'Family' would be entitled to have a partition claiming the benefit of lesser stamp duty as is provided under Article.42(i) of the Schedule to the Kerala Stamp Act, making it clear that it would be a wrong proposition to say that, only if the father and mother were alive , the children could be considered as having the status of sons and daughters and otherwise, they would only be **9** ## **W.P.(C)No.2647 OF 2013** brothers and sisters. The dictum is applicable to the case in hand as well. 11 In the said circumstances, this Court finds that the petitioners are entitled to succeed. Accordingly, there will be a direction to the first respondent/Registering Authority to register the original of Ext. P6 partition deed, accepting the stamp duty as provided under Article 42(i) of the Schedule to the Kerala Stamp Act ( subject to a maximum of Rs. One thousand), if and when presented. The parties are set at liberty to present the original of Ext.P6 Partition Deed before the Registering Authority and on satisfying other legal requirements, it shall be caused to be registered forthwith; extending the benefit as aforesaid . The writ petition is allowed. No cost. ## **P.R.RAMACHANDRA MENON JUDGE** lk