Puthukudikunyil Aysha v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940** **WP(C).No. 21853 of 2018** **------------------------** ## **PETITIONER:** **-----------** **PUTHUKUDIKUNIYIL AYSHA, W/O.KHADER, AGED 62 YEARS, THAIYULLATHIL HOUSE, PANOOR.P.O., THALASSERY TALUK, KANNUR-670 692.** **BY ADV.SRI.C.P.PEETHAMBARAN** - **RESPONDENT(S): --------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM, PIN - 695 001.** **3. THE DISTRICT REGISTRAR (GENERAL), KANNUR AT THALASSERY, KANNUR DISTRICT-670 701.** **4. THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, PANOOR, KANNUR, PIN-670 701.** **BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 21853 of 2018 (F) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **---------------------** |**EXHIBIT P1 TRUE COPY OF THE PARTITION DEED NO.1184/2017 OF**| |---| |**SRO., PANOOR.**| |**EXHIBIT P2 OFFICE COPY OF THE CANCELLATION DEED**| |**DATED 13.3.2018 PREPARED BY THE PETITIONER.**| |**EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 18.4.2018 OF THE**| |**3RD RESPONDENT.**| |**EXHIBIT P4 TRUE COPY OF THE REPLY DATED 30.4.2018 SUBMITTED**| |**BY THE PETITIONER BEFORE THE 3RD RESPONDENT.**| |**EXHIBIT P5 TRUE COPY OF THE ORDER DATED 9.5.2018 OF THE**| |**3RD RESPONDENT.**| |**RESPONDENTS' EXHIBITS:**<br>**NIL**| |**---------------------**| **/TRUE COPY/** **P.S.TO JUDGE** **mbr/ 05.07.2018.** ## ALEXANDER THOMAS, J. ----------------------------W.P(C).No.21853 Of 2018 --------------------------------Dated this the 2nd day of July, 2018. ## J U D G M E N T The grievance of the petitioner is that though she had executed Ext.P-2 cancellation deed dated 13.3.2018, for cancelling Ext.P-1 partition deed No.1184/17 of SRO, Panoor, on the ground that the property so partitioned by Ext.P-1 could not be enjoyed by the parties by putting up a residential building on account of the peculiar physical shape, respondents 3 & 4 are demanding stamp duty for Ext.P-2 cancellation deed as if it is a conveyance deed. It is stated that after the death of petitioner's husband, his property had devolved upon her and her 8 children as per Ext.P-1 partition deed dated 25.9.2017. That due to the improper shape of the property, the petitioner and other allottees of the partition deed could not effectively put up construction of the building and therefore they decided to cancel Ext.P-1 partition deed and register a fresh partition deed pursuant to cancellation of Ext.P-2 deed. When Ext.P-2 cancellation deed was presented before the 4th respondent, the said officer demanded stamp duty as if it is a conveyance deed. Thereafter the 4th respondent had forwarded Ext.P-2 ::2:: W.P(C).No.21853 Of 2018 cancellation deed to the 3rd respondent-District Registrar (General), Kannur, under Sec.37(2) of the Kerala Stamp Act and the 3rd respondent in turn had issued the impugned Ext.P-5 order dated 9.5.2018 by which it has been ordered that Ext.P-2 cancellation deed could be registered only to be treating it as a conveyance deed under Article 21(i) of the Schedule to the Kerala Stamp Act, which attracts duty @ 8% and that in addition thereto the petitioner should also pay penalty of Rs.2,000/-, etc. It is this order at Ext.P-5 that is under challenge in this Writ Petition. The prayers in this Writ Petition (Civil) are as follows: - “(i) call for records connecting Exhibit P-5 order from the 3rd respondent and quash Exhibit P-5 order by issuing a Writ of Certiorari or any other appropriate Writ, Order of Direction. - (ii) issue a Writ of Mandamus or any other appropriate Writ, Order or direction, directing the Respondents 3 and 4 to return the Original of Exhibit P-2 document to the petitioner after completing the formalities of Registration after accepting Stamp Duty of Rs.500/-, within a time frame fixed by this Hon'ble Court. 2. Heard Sri.C.P.Peethambaran, learned counsel for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. Sri.C.P.Peethambaran, learned counsel for the petitioner would submit that the matter in issue is no longer res integra and fully covered in favour of the petitioner and against the official respondents on account of the dictum laid down by this Court in the judgment in ::3:: W.P(C).No.21853 Of 2018 Cleetus & anr. v. Sub Registrar & anr ., reported in 2012 (2) ILR Ker 177, wherein this Court has held that the stamp duty applicable for registration of a cancellation deed is the one prescribed in Article 15 of the Schedule to the Kerala Stamp Act, which deals with cancellation of documents, and the stamp duty payable is Rs.250/- which has been later enhanced to Rs.500/-. Learned counsel for the petitioner would submit that identical objection like the one was raised in the above said reported case and the said objection was overruled by this Court. Apart from the said submission, learned Senior Government Pleader appearing for the official respondents would submit that in case the petitioner has any grievance as against the impugned Ext.P-5 order issued by the 3rd respondent-District Registrar (General) under Sec.37(2) of the Act, then the petitioner is conferred with an efficacious statutory remedy by way of an appeal under Sec.44(2) of the said Act. 4. Having regard to the specific contention raised by the petitioner that the matter in issue is covered in favour of the petitioner in view of the dictum laid down by this Court in the judgment in Cleetus & anr. v. Sub Registrar & anr. , reported in 2012 (2) ILR Ker 177, this Court is of the view that the petitioner need not be relegated to avail statutory remedy and existence of such alternative remedy need not be ::4:: W.P(C).No.21853 Of 2018 the sole ground for preclusion of consideration of the matter on merits. In the decision in Cleetus' case (supra), the 1st petitioner therein had executed a settlement deed in favour of the 2nd petitioner and later, they jointly presented a cancellation deed for registration cancelling the settlement deed, paying stamp duty as provided in Article 15 of the Schedule. The Sub Registrar insisted that the petitioners should pay stamp duty payable for conveyance as provided in Article 22. The petitioners then contended before this Court that Article 15 specifically provides for the stamp duty for a cancellation deed, they are liable to pay only that stamp duty, which was then fixed as Rs.250/-, etc. This Court held that even if cancellation deed is treated as an instrument, by which immovable property is transferred inter vivos, insofar as Article 15 specifically provides for a cancellation of deed, what the petitioners are liable to pay is the stamp duty in accordance with Article 15 and not as per Article 22 as contended by the respondents therein. On a consideration of the rival pleas this Court is of the view that the matter in issue is no longer res integra and it is fully covered in favour of the petitioner by the dictum laid down by this Court in Cleetus & anr. v. Sub Registrar & anr. , reported in 2012 (2) ILR Ker 177. Para 4 of the above judgment in Cleetus ' case (supra) reads as follows: (see ILR report). ::5:: W.P(C).No.21853 Of 2018 ## '4. Article 15 of the Schedule to the Stamp Act reads thus; _“15. Cancellation – Instrument of Two hundred and fifty rupees.” (including any instrument by which any instrument previously executed is cancelled), if attested and not otherwise provided for_ It is not disputed before me that Ext.P2 is a cancellation deed cancelling a previously executed instrument. Therefore, Ext.P2 comes within the purview of Article 15 without any doubt. Then, the only question which remains to be considered is whether the same is liable to be treated as a conveyance as defined under Section 2(d) of the Stamp Act and whether the petitioners are liable to pay stamp duty under Article 22 of the Schedule. Section 2(d) of the Act reads thus: _“_ _**2. Definitions** .- ....._ _xxx xxx xxx (d) “Conveyance” includes a conveyance on sale and every instrument by which property, whether movable, or immovable is transferred inter vivos and which is not otherwise specifically ” provided for by the Schedule. (underlining supplied)_ Therefore, even if Ext.P2 document is treated as an instrument, by which the immovable property is transferred inter vivos, insofar as Article 15 specifically provides for a cancellation deed, which is Ext.P2, what the petitioners are liable to pay is the stamp duty in accordance with Article 15 and not as per Article 22 as contended by the respondents. As such, I do not find any merit in the contention of the respondents. It is, therefore, declared that the petitioners are liable to pay stamp duty on Ext.P2 cancellation deed only in accordance with Article 15 of the Schedule to the Kerala Stamp Act and not under Article 22 thereof. Consequently, there would be a direction to the respondents to complete the registration of Ext.P2 after accepting stamp duty as payable under Article 15 and the registered document shall be returned to the petitioners, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment.' In the instant case what is demanded is under Article 21(i), which deals with conveyance as defined in Sec.2(d) other than a conveyance specified in No.22, not being a transfer charged or exempted under No.55 of the Kerala Stamp Act and the question which remains to be ::6:: W.P(C).No.21853 Of 2018 considered is whether the document is liable to be treated as a conveyance and whether the petitioners are liable to pay stamp duty under Article 22, etc. Therefore, the substantial objections raised in both the cases are the same and therefore even if it is treated as conveyance as per Sec.2(d) the saving provision in Sec.2(d) specifically holds that conveyance includes a conveyance on sale and every instrument by which property, whether movable or immovable is transferred inter vivos and which is not otherwise specifically provided for by the Schedule. Since Article 15 makes a specific prescription in the matter of cancellation of a deed, then even going by the impact of Sec.2(d), it is such prescription as Article 15 which govern this field. Therefore, this Court has no hesitation to hold that Ext.P-5 order issued by the 3rd respondent is illegal and ultravires. Accordingly, it is ordered in the interest of justice that the impugned Ext.P5 order will stand set aside. It is further made clear that the petitioner need pay stamp duty only on the basis of Article 15. The 3 rd respondent will forward back all the documents concerned including Ext.P-2 to the 4th respondent for consideration of the plea for registration. Steps in this regard should be completed by the 3rd respondent so that documents including Ext.P-2 partition deed is received by the 4th respondent-SRO, within 2 weeks from the date of receipt of a copy of this judgment. Upon receipt of a copy of the document, the 4th respondent will issue ::7:: W.P(C).No.21853 Of 2018 notice to the petitioner and other executants of Ext.P-2 deed and then will proceed with the further steps for registration of the documents and stamp duty payable by the petitioner will be as the one prescribed under Article 15 of the Schedule to the Stamp Act. Steps in that regard should be taken by the 4th respondent within 10 days from the date of receipt of documents from the 3rd respondent. 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.