Rajesh Kumar K. T. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA, 1945** ## **WP(C) NO. 9649 OF 2023** ## **PETITIONER:** **RAJESH KUMAR K. T. AGED 47 YEARS S/O. THANKAPPAN NAIR, KUDUMBIYAMKUZHIYIL HOUSE, CHIRAKKADAVU VILLAGE, PONKUNNAM P.O., KOTTAYAM DISTRICT, PIN - 686506 BY ADVS. LIJI.J.VADAKEDOM TOM E. JACOB REXY ELIZABETH THOMAS ATHUL V. VADAKKEDOM** ## **RESPONDENTS:** **1 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO REGISTRATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 2. THE DISTRICT REGISTRAR (GENERAL) OFFICE OF THE DISTRICT REGISTRAR, KOTTAYAM, PIN - 686002 3 3. THE SUB REGISTRAR-KANJIRAPPALLY OFFICE OF THE SUB REGISTRAR-KANJIRAPPALLY, PONKUNNAM, KOTTAYAM, PIN - 686506 BY ADVS. GOVERNMENT PLEADER ADVOCATE GENERAL OFFICE KERALA** ## **OTHER PRESENT:** **SR.GP - DEEPA NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C). No.9649 of 2023 : 2 : ## **“CR”** ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C) No.9649 of 2023** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of March, 2024 ## **JUDGMENT** The above writ petition is filed challenging Ext.P3 order and seeking a direction to the 3[rd] respondent to register the rectification deed similar to Ext.P2 draft rectification deed by levying stamp duty of only Rs. 500/-. 2. Petitioner contends that the petitioner's father, late Mr.Thankappan and his sister, Thankamma had executed Ext.P1 Partition Deed No. 917/2007 of the SRO, Chirakkadavu dated 26.02.2007. In Ext.P1 Partition Deed, properties are divided into two schedules- 'A' and 'B'. 'A' scheduled property is divided as A1, A2 and A3 which were allotted to the father of the petitionerThankappan. 'B' scheduled property was allotted to Thankamma - sister of the petitioner's father. The details are as follows; (i) A1 Schedule - 8.18 Ares and 33.10 Ares (total extent 41.18 Ares) in Re. Sy. Nos. 83/14 and 83/9 respectively in Bl. No. 16 (1 Acre 2 Cents out of a total property having an extent of 2 Acres 44 Cents in old survey No. 1052/1, 1052/2, 1052/3, 1052/4 and 1052/7) W.P.(C). No.9649 of 2023 : 3 : (ii) A2 Schedule - 7.60 Ares in old survey No.965, Re. Sy. No. 84/18, Bl. No. 16. (iii) A3 Schedule - 20 Ares in old survey No. 1034/1, Re. survey No. 27/3, Bl. No. 16 (iv) B Schedule - 58.92 Ares in resurvey No. 83/14. (1 Acre 42 Cents out of a total property having an extent of 2 Acres 44 Cents in old survey No. 1052/1, 1052/2, 1052/3, 1052/4 and 1052/7) Later, the petitioner realized that there was a mistake with regard to the description of the above mentioned properties in A1 Schedule and Schedule B of Ext.P1 Partition Deed. Though the total extent of the properties mentioned in A1 and B schedules were correctly shown, a mistake has crept in whereby the resurvey number of the above-mentioned property got interchanged. By the time the mistake was noted, the father of the petitioner died. In such circumstance, Ext.P2 correction deed was executed by the petitioner, and his brother's wife in the capacity of the power of attorney holder of the petitioner's brother-Harish Kumar K. T., and his father's sister Thankamma. The corrections to be made to Ext. P1 Partition Deed is as stated below: (a) As per 'A1' Schedule in Ext.P1 Partition Deed, the property of 33.10 Ares and 8.18 Ares (total extent 41.28 Ares) is comprised in W.P.(C). No.9649 of 2023 : 4 : Re. Sy No. 83/9 and 83/14 respectively in Block No. 16 of Chirakkadavu Village. The same is corrected as 41.28 Ares in Resurvey No. 83/14. (b) As per 'B' Schedule in Ext.P1 Partition Deed, the total extent of 58.92 Ares which is shown as comprised in Re. Sy. No. 83/14 was split up as 33.10 Ares in Resurvey No.83/9 and 25.82 Ares in Resurvey No.83/14. (c) The total extent as per old survey and the resurvey remained the same in both the deeds. In the above circumstance Ext.P2 correction deed was presented to the District Registrar (General), Kottayam for the determination of stamp duty, so as to subsequently register the correction deed. However, the District Registrar (General) vide order dated 07.04.2022 treated the aforesaid correction deed to be a fresh sale deed and ordered the petitioner as per Ext.P3, to pay a stamp value of Rs.4,32,848/- for the registration of Ext.P2 correction deed. It is pertinent to notice that Ext.P2 correction deed did not create, transfer, limit, extend, extinguish or record any right of the parties to the correction deed with respect to the properties mentioned in A1 schedule and B schedule respectively. Ext.P2 correction deed was only intended to rectify the errors that crept in with respect to : 5 : W.P.(C). No.9649 of 2023 the resurvey numbers of A1 schedule and B schedule in Ext.P1 Partition Deed. The petitioner relies on the judgment of this Court in _**Baburaj P. K. and Others v. State of Kerala and Others reported in 2019 (2) KHC 628,**_ wherein the Court has held that the Registration Act provides a Table of fees under S.78 of the Act. Table 1(s) under S.78 refers a deed which can be treated as rectification deed and it states that the maximum fee leviable on such a deed at Rs.500/- and that rectification deed does not create, transfer, limit, extend, extinguish or record any right and therefore, the wrong description which will not create, transfer or record any fresh right can be rectified through a rectification deed. 3. A detailed counter affidavit has been filed wherein the 2[nd] respondent has reiterated the stand taken in Ext.P3 that the document submitted for adjudication purposes by the petitioner is a fresh deed and not a correction deed. It is further contended that it is an exchange of properties between the legal heirs of late Mr. Thankappan and his sister, Mrs. Thankamma. Since the document is to be treated as a fresh sale deed, appropriate stamp duty and registration fee shall be paid as directed in Ext.P3 order. The correction deed correctly involves the transfer of property from A1 Schedule to B Schedule and the reduction and increase in W.P.(C). No.9649 of 2023 : 6 : properties of their respective schedules. 4. Learned counsel for the petitioner would submit that it is not a case of exchange of properties between the legal heirs of late Mr.Thankappan and his sister, Mrs. Thankamma. Originally, the extent of property covered by Schedule A1 is 41 Ares 28 Sq mtrs and the corrected Schedule A1 is also having the very same extent, i.e., 41 Ares 28 Sq mtrs. As regards, Schedule B property total extent was 58 Ares 92 Sq mtrs and the extent of property as per corrected Schedule B is also 58 Ares 92 Sq mtrs. On the basis of the same, the petitioner would submit that the boundaries, extent and original survey numbers remain the same but the only anomaly is regarding the resurvey number in the description of the property and that is what is sought to be corrected by way of Ext.P2 rectification deed. 5. The petitioner relies on the judgment in _**Vannathi Valatpil Mahmood v. State of Kerala and Others, 2019 (2) KHC 736**_ in which this Court has held that additional stamp duty and registration charges cannot be charged stating that there is a change in the description of the property and what can be additionally charged is only the registration fee for rectification as provided in the table of registration fees. This Court in _**Baburaj**_ : 7 : W.P.(C). No.9649 of 2023 _**P.K and others v. State of Kerala and Others, 2019 (2) KHC 628**_ while dealing with a wrong description in a registered Will held that when there is unanimity among legal heirs they could justify the intention of the testator and there is no impediment under the law in executing a rectification deed by such persons so as to correct descriptions in the registered Will. This Court in _**Jihas v. District Registrar, 2012 (3) KLT 194**_ while dealing with a rectification deed correcting the mistake in mentioning flat number in the sale deed held that even if there is an extinguishment of right and creation of right, that will not alter nature of rectification deed for all purposes including stamp duty and the deed is to be treated as a rectification deed and cannot be directed to execute a fresh sale deed. In view of the categoric declaration of law as stated above, Ext.P2 rectification deed executed by the petitionerand his brother through his power of attorney holder and his father’s sister so as to correct a mistake in respect of the Resurvey number of the property wherein the boundary, extent and old survey number remain unchanged cannot be treated as a fresh sale deed and could be treated only as a rectification deed. 6. In view of the above, Ext.P3 is set aside with a consequential direction to the 3[rd] respondent to register Ext.P2 W.P.(C). No.9649 of 2023 : 8 : rectification deed but by levying a fee as applicable to registration of a rectification deed. The writ petition is allowed as above. Sd/- **VIJU ABRAHAM JUDGE** sm/ : 9 : W.P.(C). No.9649 of 2023 ## **APPENDIX OF WP(C) 9649/2023** |**PETITIONER EXHIBITS**||| |---|---|---| |**Exhibit P1**|**THE COPY OF THE PARTITION DEED **|**NO.**| ||**917/2007 DATED 26.02.2007 OF THE **|**SRO,**| ||**CHIRAKKADAVU**|| |**Exhibit P2**|**THE COPY OF THE DRAFT COPY OF **|**THE**| ||**CORRECTION/RECTIFICATION**<br>**DEED**|**DATED**| ||**2.3.2022**|| |**Exhibit P3**|**THE**<br>**COPY**<br>**OF**<br>**THE**|**ORDER**| ||**NO.DRGKTM/617/2022/A2 OF THE DISTRICT**|| ||**REGISTRAR (GENERAL) DATED 07.04.2022**||