Pallikuthu Sathyaseelan v. Sub Registrar, Wandoor Sub Registrar Office

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940** **WP(C).No. 18982 of 2017** ## **PETITIONER :** **PALLIKUTHU SATHYASEELAN, S/O. POOKOTTIL KARUNAKARAN NAIR, AGED 66 YRS, POST PUNNAPALA, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **BY ADV.SRI.C.M.MOHAMMED IQUABAL** ## **RESPONDENT :** **THE SUB REGISTRAR, WANDOOR SUB REGISTRAR OFFICE, POST WANDOOR, MALAPPURAM DISTRICT, PIN-679328.** **BY SENIOR GOVERNMENT PLEADER SRI.V.MANU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 18982 of 2017 (W)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 THE TRUE COPY OF THE PURCHASE CERTIFICATE NO.308/1977 DATED 1.1.1977 OF THE WANDOOR LAND TRIBUNAL EXHIBIT P2 THE TRUE COPY OF THE TAX RECEIPT ISSUED BY TIRUVALI VILLAGE OFFICER DATED 13.7.2015 EXHIBIT P3 THE TRUE COPY OF PARTITION DEED EXECUTED BETWEEN THE PETITIONER AND OTHERS DATED 29.5.2017** **RESPONDENT(S)' EXHIBITS** ## **NIL** **TRUE COPY P.S. TO JUDGE** **EL** **12.7.2018** ## ALEXANDER THOMAS, J. ----------------------------W.P(C).No.18982 Of 2017 --------------------------------- Dated this the 6th day of July, 2018. ## J U D G M E N T ## The main prayer in this Writ Petition is as follows: “Issue a Writ of Mandamus or any other appropriate writ, order or direction directing the respondent to accept Exhibit P3 document for registration and to register the same within a time stipulated by this Honourable Court.” 2. Heard Sri.C.M.Mohammed Iquabal, learned counsel for the writ petitioner and Sri.V.Manu, learned Senior Government Pleader appearing for the respondent-SRO, Wandoor. 3. The question that arises for consideration is as to whether the registration of Ext.P-3 partition deed executed by the petitioner and the other executants thereof would deserve a lower stamp duty as envisaged in clause (a) of Article 42 of the Schedule to the Kerala Stamp Act. During the pendency of the present litigative proceedings, this case relating to partition deed and another case [W.P.(C).No.16099/2017] were referred for consideration to a Full Bench. The Full Bench has thereafter rendered order/judgment dated 16.10.2017 in the case Abdul Muneer v. Sub Registrar , reported in 2018 (1) KLT 238 (FB), whereby reference to the questions of law have been answered. ::2:: W.P(C).No.18982 Of 2017 ## 4. Article 42 of the Schedule to the Kerala Stamp Act reads as ## follows: ## “42. Partition-Instrument of as defined by Section 2(k): |“42. Partition-Instrument of as defined by Section 2(k):|“42. Partition-Instrument of as defined by Section 2(k):| |---|---| |(a) Where the partition is among all or some of the family|| |members -|| |(1) the extent of land involved in|One rupee for every rupees the| |property divided by the|100 or part thereof of the fair| |instrument is five acres or less|value of the separated share or| ||shares of property and the| ||value of other properties in such| ||separated share or shares set| ||forth in the instrument, or of the| ||value of all the properties of| ||the separated share or shares as| ||set forth in the instrument,| ||whichever is higher, subject to| ||the maximum of rupees 1000.| |(ii) the extent of land involved in|One rupee for every rupees 100| |he property divided by the|or part thereof of the fair value| |instrument is above five acres.|the separated share or shares of| ||property and the value of other| ||properties in such separated share| ||or shares set forth in the| ||instrument, or of the value of all the| ||properties of the separated share or| ||shares as set forth in the instrument,| ||whichever is higher.| |(b) in any other case|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.| Explanation .- Family means father, mother, grandfather,grandmother, husband, wife, son, daughter, grandchildren, brother, sister and legal heirs of the deceased children, if any as the case may be.” 5. In the instant case, it is the case of the petitioner that he was in possession of 57 cents of land in Sy.No.470/5 (Re.Sy.No.67/5) of ::3:: W.P(C).No.18982 Of 2017 Thiruvali Village along with his brothers Karunakaran and Haridasan on the basis of Ext.P-1 purchase certificate. Karunakaran, brother of the petitioner, is no more and it is stated that the petitioner and his other brother Haridasan are enjoying the property along with the legal representatives of the deceased brother, Karunakaran. That the petitioner (Sathyaseelan), his brother (Haridasan) and the LRs of their deceased brother Karunakaran (viz., 3 children; 2 sons and only daughter and widow of Karunakaran) had executed Ext.P-3 partition deed dated 29.5.2017 and had produced the same before the S.R.O. for registration. According to the petitioner, the abovesaid partition deed deserves to be registered as per the lower stamp duty payable in terms of clause (a) of Article 42 of the Stamp Act as they would satisfy the definition of Family as prescribed in the Explanation appended to Article 42. That, however the respondent-SRO is not accepting Ext.P-3 document for registration contending that the petitioner and other executants should produce the entire value of the stamp paper as it is a partition between unrelated persons, etc. From a reading of Ext.P-3 partition deed it can be seen that the following persons are the 7 executants thereto, viz., (1) The petitioner (Sathyaseelan) (2) Haridasan (brother of the petitioner) ::4:: W.P(C).No.18982 Of 2017 - (3) Aanandakrishnan (S/o. Karunakaran-deceased brother of executants 1 & 2) - (4) Sree Ranjith (S/o. Karunakaran-deceased brother of executants 1 & 2) - (5) Abhilash (S/o. Karunakaran-deceased brother of executants 1 & 2) - (6) Rajani (D/o. Karunakaran-deceased brother of executants 1 & 2) - (7) Krishnaveni (widow of Karunakaran-deceased brother of executants 1 & 2 and mother of executants 3 to 6). ## 6. The Full Bench of this Court in the aforecited judgment in Abdul Muneer v. Sub Registrar , reported in 2018 (1) KLT 238 (F.B), has held in 25 thereof as follows: “25. Hence, to assess the eligibility for reduction of stamp duty in Article 42(1), what is to be seen is the relationship between the coowners at the time of execution of the partition deed. If each of the coowner is related to at least one of the other in the enumerated categories of relationships prescribed in the Explanation of Article 42, then the partition deed between them would become deserving of lower stamp duty under sub-clause (1) of the said Article. Considerations of common lineage, devolution of property etc., are all irrelevant for this purpose and all that becomes relevant for the purpose of Article 42(1) is the relationship of the co-owners at the time of execution and registration of the partition deed. If the coowners are several in number, then the benefit under this Article would flow only if each of such co-owner is related at least to one other through the specified category of relationships as is prescribed in the Explanation to Article 42. This, in our opinion, is the only way the explanation to the Article can be interpreted. Obviously therefore, the conclusions in Manuel (supra) and in Jose (supra) are not correct and we are, therefore, constrained to hold so. However, we do not propose to unsettle any rights that have been already created and vested prior to this judgment. We clarify that the findings in this judgment would only apply to partition deeds that are executed and presented for registration before the concerned Sub Registrars from this date onwards and that all such deeds registered prior to this date would not be affected by anything stated and found by us herein. We thus answer the reference placed for our opinion by holding that there is no conflict in the views of the ::5:: W.P(C).No.18982 Of 2017 Division Benches in the judgments in Jose (supra) and Shibu (supra) and the latter is the correct and applicable law relating to release deeds under Article 48, while the former, though not laying the correct law, relates only to partition deeds under Article 42 of the Schedule to the Act. We further declare that the conclusions in State of Kerala and Others v. Manuel (2013 (1) KLT 825) and State of Kerala v. Jose (2013 (3) KLT 412) of the Division Bench is not the correct law and we, therefore, overrule the same and declare that the benefit under Article 42(1) of the Schedule to the Act would be attracted and available only to those partition deeds that are executed between its co-owners, if each of such co-owner is related to at least one other, in cases where there are more than two co-owners and in case there are only two co-owners, if they are related to each other, in the enumerated categories of relationships prescribed in the Explanation to Article 42 at the time of execution of the partition deed and not otherwise. The reference is thus answered and the law relating to stamp duty payable under Article 42(1) of the schedule to the Act is thus declared.” 7. Thus, it has been held by the Full Bench in the abovesaid decision that, to assess the eligibility for reduction of stamp duty in Article 42 (a) what is to be seen is the relationship between the coowners at the time of execution of the partition deed and if each of the co-owner is related to at least one of the other in the enumerated categories of relationships prescribed in the Explanation of Article 42, then the partition deed between them would become deserving of lower stamp duty under sub-clause (a) of the said Article. 8. In the instant case it is not in dispute that relationship of the 7 executants of Ext.P-3 partition deed are as follows: Executant No.1 Writ Petitioner-brother of executant No.2 Executant No.2 brother of executant No.(1) ::6:: W.P(C).No.18982 Of 2017 Executants 3 to 6 children of executant No.7 (as noted hereinabove executants 3 to 6 are the children of deceased brother of executants 1 & 2) Executant No.7 mother of executants 3 to 6 (who is also widow of the deceased brother of executants 1 & 2) 9. A Division Bench of this Court has recently rendered judgment dated 21.6.2018 in W.A.No.1062/2018 arising out of W.P.(C).No.12487/2018, which reads as follows: 'The appellant was the petitioner in W.P(C). No.12487 of 2018 and challenge here is to the judgment dated 13.4.2018, whereby, the learned Judge declared that the four persons in the Ext.P1 partition deed, cannot claim the benefit of lesser stamp duty, as is contemplated in Article 42 (1) of the Stamp Act, 1959 (Kerala). The learned Judge referred to the expression, 'family', given in the explanation to Article 42(1) and declared that the four persons involved in the partition deed (Annexure A1), are disentitled to be treated as 'family' for the purpose of the said provision. 2. The partition deed was amongst the appellant Vasudevan Vadhyan Namboothiri, his wife Vilasini, their son Dileep and the 4th person in the partition deed is the brother of the appellant, Parameswaran Namboothiri. But the learned Judge erroneously stated that brother and brother's wife are parties and therefore they cannot come under the category of 'family' to be entitled to lesser stamp duty on the deed. 3. The benefit of paying lower stamp duty would be available to persons, who come within the enumerated category and it would be appropriate to extract the relevant provision for further consideration: ## “42. Partition-Instrument of as defined by Section 2(k): ## (a) Where the partition is among all or some of the family members - (i) the extent of land involved in value of the property divided by the instrument is five acres or less One rupee for every rupees the 100 or part thereof of the fair value of the separated share or shares of property and the value of other properties in such separated share or shares set forth in the instrument, or of the value of all the properties of the separated share or shares as set forth in the instrument, ::7:: W.P(C).No.18982 Of 2017 whichever is higher, subject to the maximum of rupees 1000. Explanation .- Family means father, mother, grandfather, grandmother, husband, wife, son, daughter, grandchildren, brother, sister and legal heirs of the deceased children, if any as the case may be.” 4. As can be seen from the above explanation of family, the father, wife, son as also the brothers are included in the definition of 'family' and it cannot be overlooked that the four persons involved in the partition are all members of one family. 5. In the above context, a Full Bench of this Court in Abdul Muneer and Another v. Sub Registrar, Tirur and Others reported in 2018 (1) KHC 207 (FB) while interpreting Article 42(1) of the Stamp Duty Act, declared as follows : _“25. Hence, to assess the eligibility for reduction of stamp duty in Article 42(1), what is to be seen is the relationship between the coowners at the time of execution of the partition deed. If each of the coowners is related to at least one of the other in the enumerated categories of relationships prescribed in the Explanation of Article 42, then the partition deed between them would become deserving of lower stamp duty under sub-clause (1) of the said Article. Considerations of common lineage, devolution of property etc., are all irrelevant for this purpose and all that becomes relevant for the purpose of Article 42(1) is the relationship of the co-owners at the time of execution and registration of the partition deed.”_ 6. When we consider the circumstances here, with reference to definition of family, it is clear that the partition deed executed by the four parties connected with the deed would surely be entitled to the benefit of lower stamp duty as provided under sub-clause (1) of Article 42 and it is declared so accordingly. 7. Having concluded thus, we feel that the learned Judge committed error in dismissing the writ petition. Accordingly, we interfere with the same and allow this writ appeal as also the writ petition. It is ordered accordingly.' 10. In the case in W.A.No.1062/2018, the partition deed was amongst the writ appellant therein-Vasudevan Namboothiri, his wifeVilasini, their son-Diliip and the 4th person in the partition deed was the brother of the writ appellant-Parameswaran Namboothiri. The Division Bench of this Court held therein that by applying the dictum laid down by ::8:: W.P(C).No.18982 Of 2017 this Court in Abdul Muneer v. Sub Registrar , reported in 2018 (1) KLT 238 (F.B), that each of the executants in the said partition deed dealt with in that writ appellate judgment is related to at least one of the other in the enumerated categories of relationships prescribed in the Explanation of Article 42 and therefore the partition deed considered in that writ appellate judgment also deserves a lower stamp duty. 11. Therefore, it is clear like the day light that in the instant case, the vital stipulation that each one of the executants must be related to at least one of the other in the enumerated categories of relationship prescribed in the Explanation of Article 42 of the Stamp Act is seen fulfilled. If the stand of the S.R.O., is upheld then it will amount to rewriting the dictum laid down by the decision of this Court in Abdul Muneer v. Sub Registrar , reported in 2018 (1) KLT 238 (FB), and it has to be held that as each of the executants is related to all of the other executants as enumerated in the categories of relationship prescribed in the Explanation of Article 42 and such an act on the part of the S.R.O is impermissible in law as it is in blatant violation of the dictum laid down in the Full Bench decision in Abdul Muneer's case (supra). In that view of the matter, it is declared that registration of the instant Ext.P-3 partition deed deserves lower stamp duty as envisaged in Article 42 of the Schedule to the Stamp Act. Accordingly, it is ordered that it is for the petitioner to ::9:: W.P(C).No.18982 Of 2017 forthwith present Ext.P-3 partition deed for registration before the S.R.O., Wandoor, Malappuram and the respondent will register the said document if it is otherwise in order by treating that its registration deserves lower stamp duty as envisaged in Article 42 of the Schedule to the Kerala Stamp Act. Needful in this regard should be done by the S.R.O., without any further delay on its presentation for registration by the petitioner. The Office of the Advocate General will forward certified copies of this judgment to the S.R.O., Wandoor, for necessary information and further action. The petitioner may also produce a certified copy of this judgment along with Ext.P-3 partition deed as and when it is presented for registration. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.