PANDAKKAL CHEKKUTTY HAJI v. DISTRICT REGISTRAR, MALAPPURAM & SUB REGISTRAR, KOTTAKKAL, MALAPPURAM DISTRICT

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938 ## WP(C).No. 13975 of 2009 (N) ---------------------------- PETITIONERS: - -------------------- 1. PANDAKKAL CHEKKUTTY HAJI, S/O. ALAVIKUTTY HAJI, KLARI AMSOM DESOM. 2. PANDAKKAL MAHMOOD, S/O. CHEKKUTTY HAJI, KLARI AMSOM DESOM, P.O. KLARI. 3. PANDAKKAL LUKMAN, S/O.CHEKKUTTY HAJI, KLARI AMSOM DESOM, P.O. KLARI. 4. PANDAKKAL ABDUL SAMAD, S/O. CHEKKUTTY HAJI, KLARI AMSOM DESOM, P.O.KLARI. ## BY ADV. SRI.SAJU.S.A RESPONDENTS: - ----------------------- 1. THE DISTRICT REGISTRAR, MALAPPURAM. 2. THE SUB REGISTRAR, KOTTAKKAL, MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER SRI PAUL ABRAHAM VAKKANAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.1.2017, THE COURT ON 28-02-2017 DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.13975/2009** ## **PETITIONER'S EXTS:** EXT.P1: COPY OF ASSIGNMENT DEED EXECUTED BY THE 1ST PETITIONER IN FAVOUR OF PETITIONERS 2 TO 4 DT.18.2.08. EXT.P2: COPY OF PROCEEDINGS OF THE 1ST RESPONDENT DT.28.3.08. EXT.P3: COPY OF APPEAL CMA 9/08 BEFORE THE DISTRICT COURT, MANJERI DT.10.4.08. EXT.P4: COPY OF ORDER OF THE DISTRICT COURT, MANJERI IN CMA 9/08 DT.5.3.09. ## **RESPONDENTS' EXTS: NIL** TRUE COPY P.S. TO JUDGE dsn ## **ANIL K.NARENDRAN, J. -----------------------------------W.P.(C)No.13975 of 2009** ## **---------------------------------------Dated this the 28[th] day of February, 2017** ## **JUDGMENT** The 1[st] petitioner executed Ext.P1 assignment deed dated 18.2.2008 in favour of petitioners 2 to 4, who are his children, assigning 18.85 cents of land in Sy.No.28/6, 2 cents in Sy.No.54/9, 38 cents in Sy.No.29/5 and 85 cents in Sy.No.24/7 of Klari Amsom in Tirurangadi Taluk in Malappuram district. The consideration shown in Ext.P1 assignment deed is 1,00,000/- and it is recited therein that₹ the consideration for the transaction is adjusted towards the value of ornaments belonging to the mother of petitioners 2 to 4, appropriated by the 1[st] petitioner. 2. When Ext.P1 document was presented for registration, the Sub Registrar, Kottakkal, the 2[nd] respondent herein, raised an objection that the transaction involves a gift and then an assignment. As such, the total consideration will have to be taken as 2,00,000/-₹ and the 1[st] petitioner has to pay stamp duty for a further consideration ₹1,00,000/-, for registration of Ext.P1 document. Since the 1st petitioner was not prepared to pay stamp duty for a further W.P.(C).No.13975 of 2009 2 consideration of 1,00,000/-, the 2₹ nd respondent impounded Ext.P1 document under Section 33(1) of the Kerala Stamp Act, 1959 (for brevity 'the Act') and sent it to the District Collector, Malappuram, the 1[st] respondent herein, under Section 37(2) of the Act. 3. The 1[st] respondent, after considering the report of the 2[nd] respondent, issued Ext.P2 order dated 28.3.2008, in exercise of his powers under Section 39(1)(b) of the Act, holding that Ext.P1 document is not duly stamped and as such, the 1[st] petitioner is required to pay a further sum of 10,000/- towards stamp duty₹ together with a fine of 50/-, within a period of 14 days, failing which₹ the said amount will be recovered by initiating revenue recovery proceedings. 4. Challenging Ext.P2 order, the petitioners filed Ext.P3 appeal before the District Court, Manjeri. When the said appeal came up for hearing, an objection as to its maintainability was raised. The petitioners, as advised by their counsel, filed I.A.No.166/2009 seeking permission to withdraw C.M.A.No.9/2008 with liberty to approach this Court challenging Ext.P2 order. Accordingly the said C.M.A. was dismissed as withdrawn by Ext.P4 order dated 5.3.2009. Thereafter, the petitioners filed the present writ petition seeking a writ of certiorari W.P.(C).No.13975 of 2009 3 to quash Ext.P2 order and for a writ of mandamus commanding the 2[nd] respondent to effect registration of Ext.P1 document without insisting additional stamp duty and penalty. 5. A counter affidavit has been filed on behalf of the 1[st] respondent contending that, the 2[nd] respondent, vide his report dated 13.3.2008, forwarded to the 1[st] respondent, Ext.P1 document impounded as per Section 33(1) of the Act. As per Section 39(1)(b) of the Act, the 1[st] respondent is the authority to determine the required stamp duty for a document and accordingly the said respondent held in Ext.P2 that Ext.P1 document is liable to be charged with a stamp duty of 20,000/-. Accordingly, the petitioners were directed to pay₹ the deficit stamp duty of 10,000/- and a fine of 50/-.₹ ₹ 6. In the counter affidavit, the 1[st] respondent would contend that, going by Section 5 of Act, for an instrument recording more than one transaction, as listed in the schedule, the stamp duty required for each transaction should be remitted. Ext.P1 document records two transactions. Though Ext.P1 document appears to be an instrument of conveyance executed by the 1[st] petitioner in favour of petitioners 2 to 4, it also records the intention of one Nafeesa Hajumma (wife of the 1[st] petitioner and the mother of petitioners 2 to 4) to gift the said W.P.(C).No.13975 of 2009 4 properties in favour of petitioners 2 to 4. The 1[st] petitioner has admitted the receipt of consideration from Nafeesa Hajumma and he is executing Ext.P1 document for fulfilling her intention to gift the said properties in favour of petitioners 2 to 4. Since the intention of Nafeesa Hajumma, who is not a party to Ext.P1 has been recorded in the said document, it attracts stamp duty as per Schedule 31 of the Act, in addition to the stamp duty already remitted as per Schedule 21 of the Act. The 1[st] respondent has also raised a contention that, if the petitioners are aggrieved by Ext.P2 they have got an opportunity to approach the Land Revenue Commissioner, who is the appellate authority. The petitioners, having failed to avail the appellate remedy, are not entitled to seek reliefs in this writ petition. 7. I heard learned counsel for the petitioners and also learned Government Pleader appearing for the respondents. 8. Section 5 of the Kerala Stamp Act provides that any instrument comprising or relating to several distinct matters shall be chargeable with the aggregate amount of the duties with which separate instruments, each comprising or relating to one of such matters, would be chargeable under the said Act. Section 5 of the Kerala Stamp Act corresponds to Section 5 of the Indian Stamp Act, W.P.(C).No.13975 of 2009 5 1899. Similarly, Sections 4 and 6 of the Kerala Stamp Act deals with 'single transaction completed in several instruments' and 'single transaction which will fall within several descriptions in the schedule', respectively, which corresponds to Sections 4 and 6 of the Indian Stamp Act. 9. In **Board of Revenue** v. **Arthur Paul Benthall** (AIR 1956 SC 35), in the context of Sections 4, 5 and 6 of the Indian Stamp Act, 1899, a Constitution Bench of the Apex Court held that Section 4 of the said Act deals with a single transaction completed in several instruments and Section 6 with a single transaction which might be viewed as falling under more than one category, whereas Section 5 applies only when the instrument comprises more than one transaction, and it is immaterial for this purpose whether those transactions are of the same category or of different categories. The topics dealt with in the three Sections being thus different, no useful purpose will be served by referring to Section 4 or Section 6 for determining the scope of Section 5 or for construing its terms. It is not without significance that the legislature has used three different words in relation to the three Sections, 'transaction' in Section 4, 'matter' in Section 5 and 'description' in Section 6. The said principle W.P.(C).No.13975 of 2009 6 has been reiterated by the Apex Court in **Chief Controlling Revenue Authority** v. **Coastal Gujarat Power Limited (2015 (10) SCC 700)** , in the context of Sections 4, 5 and 6 of the Gujarat Stamp Act, 1958. 10. In the instant case, though Ext.P1 document appears to be an instrument of conveyance executed by the 1[st] petitioner in favour of petitioners 2 to 4, who are his children, the said instrument also records the intention of Nafeesa Hajumma (wife of the 1[st] petitioner and mother of petitioners 2 to 4) to gift the said properties in favour of petitioners 2 to 4. 11. In **Essar Oil Ltd.** v. **Intelligence Officer (2010(4) KHC 239)** , a Division Bench of this Court held that consideration for contract can always flow from a third party. 12. In Ext.P1 document, the 1[st] petitioner has admitted the receipt of consideration from his wife, which is adjusted towards the value of the ornaments appropriated and he has executed the said document in favour of petitioners 2 to 4 for fulfilling her intention to gift the said properties in favour of petitioners 2 to 4. Therefore, it is not a case in which the 1[st] respondent has executed Ext.P1 assignment in favour of petitioners 2 to 4 after receiving consideration from W.P.(C).No.13975 of 2009 7 Nafeesa Hajumma. On the other hand, after receiving consideration from Nafeesa Hajumma, the 1[st] petitioner has executed Ext.P1 assignment deed in favour of petitioners 2 to 4 in order to fulfil her intention to gift the said properties in favour of petitioners 2 to 4. Since the intention of Nafeesa Hajumma, who is not a party to Ext.P1 document to gift the properties to petitioners 2 to 4 has been recorded in the said document, it attracts stamp duty as per Schedule 31 of the Act in addition to the stamp duty already paid as per Schedule 21 of the Act. 13. Relying on the decision in **Suryanarayanamurty v. Satyanarayanaraju (1956 Andhra 252)** , the learned counsel for the petitioners would contend that, even if Ext.P1 document contained two distinct matters, i.e., assignment and gift, the latter matter is only ancillary to the main object and as such, when the instrument embodying the main object was duly stamped, no further stamp duty would be payable for the ancillary matter. 14. In the instant case, as I have already noticed, Ext.P1 assignment deed executed by the 1[st] petitioner in favour of petitioners 2 to 4 on receipt of consideration from Nafeesa Hajumma, who is not a party to the said document, records her intention to gift the said W.P.(C).No.13975 of 2009 8 properties in favour of petitioners 2 to 4, which can only be treated as a distinct matter independent of the other, attracting additional stamp duty under Schedule 31 of the Act. Therefore, the principles laid down in the said decision in no manner supports the case of the petitioners. 15. In such circumstances, the reasoning of the 1[st] respondent in Ext.P2 order is perfectly legal, which warrants no interference in this Writ Petition. In the result, the Writ Petition fails and the same is accordingly dismissed. Sd/- **ANIL K.NARENDRAN, JUDGE** dsn/skj True copy P.S. to Judge