Santhakumari A. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 5TH DAY OF APRIL 2017/15TH CHAITHRA, 1939 WP(C).No. 32274 of 2016 (H) ---------------------------- PETITIONER(S): ------------------ SANTHAKUMARI A, W/O.A.P.SETHUMADHAVAN, AGED 66 YEARS, AYYAPPATH HOUSE, AMBALAPURAM DESOM, P.O.PERINGANDOOR, THALAPPILLY TALUK, THRISSUR DISTRICT 680 581. BY ADVS.SRI.C.A.CHACKO SRI.SEBY JOSEPH SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REGISTRATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE DISTRICT REGISTRAR (GENERAL), OFFICER OF THE DISTRICT REGISTRAR (GENERAL) THRISSUR 680 020. ## 3. THE SUB REGISTRAR OFFICER, SUB REGISTRY OFFICE, WADAKKANCHERY, THRISSUR DISTRICT. R1-3 BY ADV. SMT. A.C. VIDHYA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32274 of 2016 (H) -------------------------------- : 2 : ## **APPENDIX** PETITIONER(S)' EXHIBITS: ------------------------------- EXT.P1 TRUE COPY OF GENEALOGY OF PETITIONER'S FAMILY. EXT.P2 TRUE COPY OF SAID SALE DEED NO.497/91 OF SRO, WADAKKANCHERY EXT.P3 TRUE COPY OF PARTION DEED DATED 1/7/2016. EXT.P4 TRUE COPY OF REPRESENTATION DATED 4/7/2016 MADE BEFORE THE 2ND RESPONDENT. EXT.P5 TRUE COPY OF ORDER DATED 8/8/2016 OF 2ND RESPONDENT. EXT.P6: TRUE COPY OF RELEVANT PAGES OF SSLC BOOK OF PETITIONER'S DAUGHTER GEETHA. ## RESPONDENT(S)' EXHIBITS: NIL -------------------------------- True Copy/ rv P.A to Judge. ## **DAMA SESHADRI NAIDU, J. ------------------------------------------W.P. (C) No. 32274 of 2016 () -----------------------------------------Dated this the 5[th] day of April, 2017.** ## **JUDGMENT** A joint family, governed by the Madras Marumakkattayam Act, 1932, comprised a mother and her three daughters. They had an extent of immovable property allotted to them in a family partition held in 1946. Later, the mother died. After some time, the three daughters along with their children—a granddaughter included—sold a part of the property through Ext.P2 sale deed to a third party. 2. As time went by, the three sisters died: two survived by their children and one without children. Later, all the children of the two sisters—the joint owners—partitionned the property further. To appreciate their claim to partition, we may see their family-tree: ## Ichikkutty Amma (The Common Ancestor) Kalyani Amma Narayani Amma Parukkutti Amma (Daughter 1) (Daughter 2) (Daughter 3) 1. Balachandran 1. Lathika Menon No children 2. Venugopalan 2. Jayathi (children) W.P.(C.) No. 32274/2016 -2- ## 3. Sarada @ Saradamani ## 4. Balakrishnan ## 5. Radhamani ## 6. Santhakumari (Chidren) 3. As to the Kalyani Amma's children, Balachandran, the eldest son, sold away his share to two of his siblings: Venugopal and Sarada. The rest retained their respective shares. Kalyani Amma's last daughter, Santhakumari (the petitioner), has a daughter, Geetha. When all the co-owners, that is, the children of Kalyani Amma and Narayani Amma, wanted to have their property partitioned further, even Geetha (Kalyani Amma’s granddaughter/Santhakumari’s daughter) joined the co-owners. They executed Ext.P3 partition deed. 4. The Ext.P3 partition deed presented for registration, the Joint Registrar, the third respondent, refused to register it: that the document cannot be treated as a partition deed under Article 42(i) to the Schedule of the Kerala Stamp Act, 1959 (“the Act”). Not only did he refuse to register but also impounded the document. Aggrieved, W.P.(C.) No. 32274/2016 -3- Santhamuari, one of the co-owners, filed Ext.P4 appeal before the District Registrar, the second respondent. The appellate authority passed Ext.P5 order affirming the Joint Registrar’s stand. Further aggrieved, Santhakumari filed this writ petition. 5. Heard Sri C. M. Charisma, the learned counsel for the petitioner, and Smt. A. C. Vidhya, the learned Government Pleader, besides perusing the record. ## **Issue:** 6. The co-owners of a property, as tenants-in-common, including a grandchild, besides the children of the common ancestors, partitioned a property. They presented the deed of partition for registration. Article 42 to the Schedule of the Stamp Act governs the ‘partition’. It also defines ‘family’. The registering authorities refuse to register; instead, they impound the document. Do their action accord with the statutory mandate of the Stamp Act? ## **Discussion:** ## **Who are the Joint Tenants and Who are Tenants-in-Common?** 7. “Joint tenancy” and “tenancy-in-common” are marked by W.P.(C.) No. 32274/2016 -4- distinct features. Property held as joint tenancy passes on the death of one joint tenant, by survivorship. Among tenants-in-common, it passes by succession. Even among Hindus a joint gift or bequest creates tenancy-in-common[1] . ## **Are the Parties to the Partition Deed Members of a Joint Family or Are They Tenants-in-Common?** **8** . The joint family is governed by the Madras Marumakkattayam Act, 1932. Not disputed. In the State of Kerala, indeed, the Joint Hindu Family System (Abolishion) Act 1975 came into force on 1.2.1976. With that Act, the joint family system stood abolished. Section 2 of the Abolition Act stipulates that a tarwad or thavazi governed by the Madras Marumakkathayam Act, 1932, too, is a "joint Hindu family." 9. Section 4 (1) of the Abolition Act introduces a legal fiction. All members of a joint Hindu Family other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day the Abolition Act came into force should, with effect from that day, be deemed to hold the property as tenants-in-common. For this purpose, the provision incorporates a notional partition: as if a partition > 1 (Principles of Hindu Law, Sir D.F. Mulla, Fourteenth Edition, page 471) W.P.(C.) No. 32274/2016 -5- of such property per-capita had taken place among all the members of the family living. Then, each member is deemed to hold his or her share separately as a full owner. 10. As seen, under Section 2, a tarwad or thavazi governed by the Madras Marumakkathayam Act—which the family here is—is a joint Hindu family. From 01.12.1976, the day the Abolition Act was brought into force, the children of Kalyani Amma and Narayani Amma have become tenants-in-common, the “common tenancy” no longer existing. 11. So the conclusion is that the parties to the Ext.P3 partition deed were the members of a joint family and, now, they are tenantsin-common. ## **Does the Registration Department’s Refusal to Register the Partition Deed Accord with the Statutory Mandate?** **12** . The registering authorities assert that Geetha, Santhakumari’s daughter, a major though, cannot be a part of the joint family which should comprise only the children of Kalyani Amma and Narayani Amma. According to them, Article 42 to the Schedule of the Act comprehends no granddaughter to be a constituent of a “joint W.P.(C.) No. 32274/2016 -6- family.” On the other hand, Santhakumari asserts that “family” under 42 of the Act is all inclusive—comprehensive. 13. Article 42(i) of the Act mandates that where the partition is among all or some members of a family, the stamp duty payable is `1000/- maximum. If it is a deed of conveyance—say, a sale deed—it differs. According to the registering officials, since a person outside the family, the grandchild, obtains a share in Ext.P3 partition, the deed is only a deed of conveyance governed by Article 21. So, it was impounded under Section 33 of the Stamp Act. 14. If we examine the explanation appended to Article 42, 'family' finds itself defined. It reads thus: “A 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.” (emphasis added) 15. That apart, since the parties to the partition deed are governed by the Madras Marumakkathayam Act, 1932, we may see whether a granddaughter is also a descendant. Section 3 is the lexical provision. Clause j(i) of Section 3 defines 'Tavazhi' and it reads as W.P.(C.) No. 32274/2016 -7- ## follows: 'tavazhi' used in relation to a female means the group of persons consisting of that female, her children and all her descendants in the female line.” 16. In turn, the Black's law dictionary defines 'descendant' as one who follows the bloodline of an ancestor, either lineally or collaterally. It cites children and grandchildren as the examples. ## **The Precedential Position:** 17. In Janu v. Sub Registrar **[2]** the registering authority took an identical plea that grandchildren and greatgrandchildren of a coparcener or a co-owner do not come within the definition of 'family'. This Court has observed that the definition of 'family' indicates that various relationships described in the definition are with reference to one person. Since the definition is in the context of an instrument of partition, that person can only be the owner of the property partitioned as per the document. “All possible blood relationships in the context of executing an instrument of partition are seen included in the definition of family.” On further examination, the Court has concluded that the definition of 'family' contained in Article 42 of the Schedule can, 2 2015(1) KLT 109 W.P.(C.) No. 32274/2016 -8- therefore, be only an inclusive definition. So it stands declared that lineal descendants, even if not found mentioned in the definition, also form part of the “family.” The greatgrandchild is one such lineal descendant. 18. This proposition receives affirmation from a learned Division Bench in Rukmini Bai v. District Regisrar **[3]** . Further, in State of Kerala v. Manuel **[4]** , another Division Bench observes: “On a reading of the amendment, the word ‘family’ includes father, mother, son, daughter, brother, sister, legal heirs of deceased children, and so on and so forth. It cannot be gainsaid that only if a father and mother are alive, the children could be considered as having the status of sons and daughters and otherwise they would only be brothers and sisters. Any permutation and combination of the persons mentioned in the definition of 'family' would be entitled to have a partition claiming the benefit of lesser Stamp duty as is provided in Serial No.42(i) of the Schedule to the Stamp Act.” 19. Given the emphatic pronouncements in Janu, Rukmini Bai, > 3 2012(4) KLT SN 133 (Case No. 125) 4 2013(1) KLT 825 W.P.(C.) No. 32274/2016 -9- and Manuel, unhesitantly I hold that a grandchild, and a major one at that, is very much part of a joint family for the purpose of Article 42 of the Schedule to the Act. ## **A New Line of Defence: Should the Grandchild be a Major to be Part of a Joint Family?** 20. Though the above conclusion seems obvious, the registering authorities have, however, taken an entirely different plea in the counter affidavit. Abandoning their original objection taken in Ext.P5 impugned order, the authorities, instead, have taken a plea that the grandchild cannot be a party to the deed because the parties to the deed produced no proof about the grandchild's age. They also contend that “the Manual Order 220” clearly states that “in determining the nature of a document for assessment of stamp and fee, a registering officer need not go beyond what is expressed on the document. According to them, in the Ext.P3 nothing finds mentioned that Geetha, the grandchild, has a right in the partitioned property. 21. Indeed, the Joint Hindu Family System (Abolishion) Act 1975 came into force on 1.2.1976. With that Act, though the joint family W.P.(C.) No. 32274/2016 -10- stood abolished, the rights accrued to the members of the joint families, those who were born before the Act came into force, have been preserved. I see no provision insisting on a co-owner’s attaining the age of majority before the Abolition Act came into force. Suffice if the member is a lineal descendant. In any event, Santhakumar produced the Ext.P6 document to show that Geetha, her daughter, was born on 11.5.1974. If at all the authorities have an objection that possibly a minor joined a deed on her own, unrepresented; I reckon, Ext.P6 will allay that apprehension. ## **Should the Deed of Partition Contain a Declaration that All the Parties To It Are Cotenants or Tenants-in-Common?** 22. I must, first, observe that this defence, now taken by the registering authorities, found no place in the impugned order of rejection. It is an afterthought. And yet, I propose to answer this plea, too. If the parties are lineal descendants, there is a statutory presumption, they are either common tenants with coparcenary unbroken or tenants-in-common with a severance of status. Prima facie, a member of a joint family, under a coparcenary devolution, W.P.(C.) No. 32274/2016 -11- should not be removed by over four degrees from the last holder. In other words, there should not be a break of over three degrees between any holder of the property and the person who claims to enter the coparcenary after the holder’s death. Other than this, no more need to be satisfied by the parties to a deed of partition. For registration is a ministerial act, whereas declaration of or entitlement to a share in a joint family property is a judicial act. ## **Conclusion:** 23. In the facts and circumstances, this Court allows the writ petition. As a result, it quashes Ext.P5. It further directs respondents 2 and 3 to release Ext.P3 deed of partition to the petitioner and other executants, after following the rest of the formalities as are statutorily mandated, but without insisting on any further stamp duty. The authorities will release the document expeditiously, at any rate, within one month from the date of receipt of a copy of this judgment. No order on costs. ## **DAMA SESHADRI NAIDU, JUDGE.** Rv/css W.P.(C.) No. 32274/2016 -12-