Prabhakaran and others v. District Registrar (General), Malappuram District and Sub Registrar, Parappanangadi, Malappuram District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 14TH DAY OF AUGUST 2018 / 23RD SRAVANA, 1940** ## **WP(C).No. 27567 of 2018** ## **PETITIONER/S:** **1. Prabhakaran, S/o. Late Nambi, aged 52 years, Kattikkoloth, Р.О. Chettippadi, Malappuram District, Pin 676319. 2. Pradeepkumar S/o. late Nambi, aged 46 years Kattikkoloth, Р.О. Chettippadi, Malappuram District, Pin- 6763 19 3. Pramodkumar, S/o. late Nambi, aged 42 years Kattikkoloth, Р.О. Chettippadi, Malappuram District, Pin 676319 4. Preetha, D/o. late Nambi, W/o.Ravichandran, aged 41 years, Kattikkoloth, Р.O. Chettippadi, Malappuram District, Pin 676319 5. Prajeesh Kumar, S/o. late Nambi, aged 39 years, Kattikkoloth, P.O. Chettippadi, Malappuram District, Pin- 676319. 6. Janu, W/o. late Nambi, Azhuvalappil, Р.O. Chettippadi, Malappuram District, Pin 676319. 7. Maneesh, S/o. late Ganapathi, aged 40 years, Kattikkoloth, Р.O. Chettippadi, Malappuram District, Pin 676319.** **WP(C).No. 27567 of 2018** **8. Mini, Aged 49 years, D/o. late Ganapathi, Kattikkoloth,** **Р.О. Chettippadi, Malappuram District, Pin - 676319.** **9. Manjulakumari, Aged 44 years, D/o. late Ganapathi, Kattikkoloth, Р.О. Chettippadi, Malappuram District, Pin-676319** **BY ADV. SRI. K.P. SUDHEER** ## **RESPONDENT/S:** **1. District Registrar (General), Malappuram District.** **2. Sub Registrar, Office of the Sub Registrar, Parappanangadi, Malappuram District Pin 676303.** **BY SR.GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J. ------------------------------------------W.P.(C)No.27567 of 2018 --------------------------------------------Dated this the 14[th] day of August, 2018** ## **JUDGMENT** The petitioners nine in number, are the legal heirs of deceased Nambi and deceased Ganapathi, who in turn were the children of one Valiya Kandar. According to the petitioners, by virtue of Exts.P1 to P3 documents, the afore-said Nambi and Ganapathi, had obtained two items of properties and on their death, the properties are devolved upon the petitioners. Ext.P4 is the genealogy which is prepared for the perusal of this Court to understand the exact relationship between the parties. The petitioners had submitted Ext.P5 partition deed executed on 05.03.2018 before the 2[nd] respondent-Sub Registrar, SRO, Parappanangadi, for registration. But the 2[nd] respondent took the view that the said deed is not sufficiently stamped. The 2[nd] respondent had thus invoked his powers under Section 33(1) of the Kerala Stamp Act, 1959 and had thus impounded Ext.P5 deed and had forwarded the same to the 1[st] respondent for determination of the actual stamp duty payable and for W.P.(C)No.27567 of 2018 **==> picture [18 x 8] intentionally omitted <==** imposition of penalty if any under Section 37(2) of the above said Act. The 1[st] respondent-District Registrar (General) in turn has passed the impugned Ext.P6 order dated 10.4.2018 under Section 39 holding that the executants of Ext.P5 deed will not satisfy the definition of ‘family’ as per the Explanation appended to Article 42 of the schedule to the Kerala Stamp Act and that therefore stamp duty is payable in terms of Clause (b) of Article 42 and has thus directed the petitioners to remit a sum of Rs.59,000/- and a penalty of Rs.3,000/-. The petitioners would contend that the above said impugned decisions of the 2[nd] respondent-Sub Registrar under Section 33 and the further decision of the 1[st] respondentDistrict Registrar under Section 39 of the above said Act, is in flagrant violation of the dictum laid down by the Full Bench of this Court in the case in **Abdul Muneer & another v. Sub Registrar, Tirur & others** reported in **[2018 (1) KLT 238 (FB)]** as well as the dictum laid down by the Division Bench of this Court in **Vasudevan Vadhyan Namboothiri v. District Registrar (General)** reported in **(2018 (3) KLT 519)** . It is in W.P.(C)No.27567 of 2018 ..5.. ## the light of these factual averments that the petitioner has preferred this writ petition (civil) with the following prayers:- _“(i) call for the records leading to Exhibit P6 and quash Exhibit P6 by issuing a writ of certiorari or other appropriate writ, order or direction;_ _(ii) issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to register Exhibit P5 deed of partition by accepting the registration fee in terms of clause 1(a) (1) (vii) of Registration Act and Article 42(a)(i) of the Stamp Act._ _(iii) declare that the executants to Ext.P5 partition deed comes within the item "Family" prescribed in Explanation to Article 42(a)(i) of Stamp Act and direct the respondent to register Ext. P5 partition deed accepting the stamp duty prescribed in Article 42(a)(i) of the Stamp Act;_ _(iv)issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.K.P.Sudheer, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. There is no dispute regarding the fact that the petitioners are the legal representatives of the afore-mentioned deceased Nambi and deceased Ganapathi who in turn are the children of one Valiya Kandar and that the above said Nambi and W.P.(C)No.27567 of 2018 ..6.. Ganapathi had obtained two items of properties as per Exts.P1 to P3 documents and that on their death, the properties are devolved upon the petitioner. There are nine executants in Ext.P5 deed and the details of the executants and their inter-relationships are as ## follows:- |1|1st<br>petitioner<br>Prabhakaran|1stExecutant|Brother of executants<br>2 to 5 and son of 6th<br>executant.| |---|---|---|---| |2|<br>2nd<br>petitioner<br>Pradeepkumar|2ndExecutant|Brother of executants<br>1, 3 to 5 and son of 6th<br>executant.| |3|3rd<br>petitioner<br>Pramodkumar|3rdExecutant|Brother of executants<br>1, 2, 4 and 5 and son<br>of 6thexecutant.| |4|4th<br>petitioner<br>Preetha.|4thExecutant|Sister of executants 1<br>to 3 and 5 and<br>daughter<br>of<br>6th<br>executant.| |5|5th<br>petitioner<br>Prajeesh Kumar|5thExecutant|Brother of executants<br>1 to 4 and son of 6th<br>executant.| |6|6thpetitioner<br>Janu|6thexecutant|Mother of executants<br>1 to 5| |7|7th<br>petitioner<br>Maneesh|7thExecutant|Brother of executants<br>8 and 9.| |8|8thpetitioner<br>Mini|8thExecutant|Sister of executants 7<br>and 9.| |9|9thpetitioner<br>Manjulakumari|9th<br>executant|Sister of executants 7<br>and 8.| W.P.(C)No.27567 of 2018 **==> picture [17 x 8] intentionally omitted <==** 4. The main ground on which the 1[st] respondent-District Registrar has come to the conclusion that the petitioners/executants of Ext.P5 deed do not satisfy the definition of ‘family’ in the explanation appended to Article 42 of the Schedule of the Kerala Stamp Act is that executants 1 to 5 are the children of the father’s brother of executants 7 to 9 and that therefore they will not satisfy the above said definition of ‘family’ as per the above said explanation. The Full Bench of this Court in the judgment in **Abdul Muneer & another v. Sub Registrar, Tirur & others** reported in **[2018 (1) KLT 238 (FB)]** has conclusively held in para.25 thereof that to assess the eligibility for reduction of stamp duty in Article 42(A) what is to be seen is the relationship between the co-owners at the time of the execution of the partition deed and each of the co-owner is related at least to one of the other in the enumerated categories of relationship prescribed in the explanation of Article 42, then the partition deed between them would become deserving of lower stamp duty for the W.P.(C)No.27567 of 2018 ..8.. purpose of under Clause A of Article 42. A Division Bench of this Court has also reiterated the said legal position in the judgment in **Vasudevan Vadhyan Namboothiri v. District Registrar (General)** reported in **(2018 (3) KLT 519)** . Therefore, what is required is only that each of the co-owner/executant is related to ‘ _at least one of the other’_ in the enumerated categories of relationship prescribed in the explanation of Article 42 and for that purpose it is not necessary that each of the co-owner should necessarily be related to all the other executants in the enumerated categories of relationship. If the impugned view of the 1[st] respondent-District Registrar in Ext.P6 more particularly in para.6 thereof is to be upheld, then it would mean that the eligibility for reduction of stamp duty in terms of Article 42 Clause (a) would depend on the issue as to whether each of the co-owner should be related to all the other executants in terms of the enumerated categories of relationship. If that be so, it amounts to re-writing the dictum laid down by the Full Bench in the above said **Abdul Muneer’s** case (supra). W.P.(C)No.27567 of 2018 **==> picture [18 x 9] intentionally omitted <==** 5. In the instant case from the above said tabular column, it can be seen that executants 1 to 5 (petitioners 1 to 5) are siblings and the 6[th] executant is the mother of executants 1 to 5. Executants 7 to 9 are siblings (7[th] executant is the brother of executants 8 and 9 and the 8[th] executant is the sister of executants 7 and 9 and the 9[th] executant is the sister of executants 7 and 8). Therefore, it is crystal clear that each of the executants in Ext.P5 deed is related at least to one of the other in the enumerated categories of relationship prescribed in the explanation of Article 42 as held by the Full Bench in **Abdul Muneer’s** case (supra). 6. Further it is not in dispute that the executants are coowners and the deed would satisfy the definition of ''instrument of partition'' as per Section 2(k) which reads as follows:- _“(k) "instrument of partition" means any instrument whereby co-owners 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.”_ W.P.(C)No.27567 of 2018 **==> picture [22 x 7] intentionally omitted <==** 7. In the light of these aspects, the impugned decisions of the 2[nd] respondent-Sub Registrar in impounding Ext.P5 deed under Section 33(1) of the Kerala Stamp Act, 1959 and the further impugned decision of the 1[st] respondent-District Registrar (General) as per Ext.P6, holding that the petitioners will not satisfy the definition of ‘family’ as per the explanation to Article 42 and that they are liable to pay the higher stamp duty and penalty, etc., is legally unsustainable. Accordingly the above said decision of the 2[nd] respondent-Sub Registrar and the further decision of the 1[st] respondent-District Registrar (General) as per Ext.P6 will stand set aside. The matter will stand remitted to the 2[nd] respondent-Sub Registrar. The 1[st] respondent will ensure that Ext.P5 deed is transmitted to the 2[nd] respondent-Sub Registrar and upon such receipt shall be treated as presentation of the document for registration and the 2[nd] respondent will then register Ext.P5 partition deed, if it is otherwise in order, by holding that the said deed deserves lower stamp duty in terms of Clause (a) of Article 42 of the schedule to the Kerala Stamp Act, 1959. W.P.(C)No.27567 of 2018 ..11.. 8. The petitioner will produce certified copies of this judgment before the respondents for necessary information and further action. With these observations and directions this writ petition (civil) will stand finally disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** skj W.P.(C)No.27567 of 2018 ..12.. ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED REGISTERED AS DOCUMENT NO. 919/1978 OF PARAPPANANGADI SRO** **EXHIBIT P2 TRUE COPY OF THE KANAM ASSIGNMENT DEED REGISTERED AS DOCUMENT NO. 973/1972 OF PARAPPANANGADI SRO** **EXHIBIT P3 TRUE COPY OF THE PURCHASE CERTIFICATE ISSUED BY THE LAND TRIBUNAL, PARAPPANANGADI DATED 31/12/1976** **EXHIBIT P4 TRUE COPY OF THE GENEALOGY OF THE FAMILY OF THE PETITIONERS** **EXHIBIT P5 TRUE COPY OF THE PARTITION DEED DATED 05/03/2018 PRESENTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE ORDER NO. G-1-1529/2018 DATED 10/04/2018 ISSUED BY THE 1ST RESPONDENT ALONG WITH COVERING LETTER**