SUSEELA MENON and RADHA v. STATE OF KERALA, DISTRICT COLLECTOR; DISTRICT REGISTRAR GENERAL; SUB REGISTRAR, Kodungaloor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY ,THE 13TH DAY OF AUGUST 2018 / 22ND SRAVANA, 1940** ## **WP(C).No. 26687 of 2018** ## **PETITIONER/S:** |**1**|**SUSEELA MENON**| |---|---| ||**W/O. (LATE) RADHAKRISHNA MENON, AGED**| ||**58,PRESENTLY RESIDING AT 4B, PVS IRIS**| ||**APARTMENT,TOWER 1, WEST DESOM, KUNNUMPURAM,**| ||**ALUVA,ERNAKULAM DISTRICT - 680 102.**| |**2**|**RADHA**| ||**W/O. NARAYANAPILLA, RESIDING AT**| ||**SREESADHAN,PARK VIEW ROAD, NORTH PARAVUR,**| ||**ERNAKULAM DISTRICT - 683 513.**| ||**BY ADVS.**| ||**SRI.HARISH R. MENON**| ||**SRI.A.G.PRASANTH**| ||**SRI.K.T.SHYAMKUMAR**| ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO**| ||**GOVERNMENT,DEPARTMENT OF**| ||**REGISTRATION,THIRUVANANTHAPURAM, PIN - 695**| ||**001.**| |**2**|**DISTRICT COLLECTOR**| ||**THRISSUR DISTRICT, THRISSUR, PIN - 688001.**| |**3**|**DISTRICT REGISTRAR GENERAL**| ||**THRISSUR DISTRICT, THRISSUR, PIN - 688 001.**| |**4**|**SUB REGISTRAR**| ||**SUB REGISTRAR OFFICER, KODUNGALOOR,THRISSUR**| ||**DISTRICT, PIN - 689010**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 26687 of 2018** **2** ## **ALEXANDER THOMAS, J. ============== W.P.(C).No. 26687 of 2018** ## **==================** Dated this the 13[th] day of August, 2018 **JUDGMENT** The petitioners are aggrieved by the impugned action of the 4[th] respondent, Sub Registrar, Sub Registrar Office, Kodungalloor in impounding Ext.P2 partition deed presented by them for registration and referring the matter to the 3[rd] respondent, District Registrar (General) under Section 37(2) of the Kerala Stamp Act, 1959, for determination of the stamp duty payable for Ext.P1 deed. The petitioners also challenge Ext.P3 order dated 28.11.2017 passed by the 3[rd] respondent, District Registrar (General) under Section 39, whereby it has been ordered that the claim made by the petitioners for payment of lower stamp duty in Ext.P1 deed in terms of clause (a) of Article 42 of the Schedule of the Act, has been rejected, whereby it has been ordered the petitioners have to pay the stamp duty of Rs.1,10,420/- in terms of clause (b) of the above said Article 42 along with penalty of Rs.500/-, thus totaling to Rs.1,11,920/-. 2. The prayers in this writ petition are as follows: - _“i) Call for the records leading to Ext.P3 order dated 28.11.2017 issued by the 3[rd] respondent and quash the same by issuing a writ of certiorari or any other appropriate writ order or direction. ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 3[rd] and 4[th] respondents to register Ext.P1 partition deed by accepting the stamp duty already paid for the instrument.”_ **WP(C).No. 26687 of 2018** **3** 3. Heard Sri Harish R Menon, the learned counsel appearing for the petitioners and Smt.A C Vidhya, the learned Government Pleader appearing for the respondents. 4. According to the petitioners, in final decree proceedings in O.S No.80/79 on the file of the Sub Court, Irinjalakuda (which is suit for partition), initiated in pursuance to the preliminary decree passed in the said suit for partition, an item of property was kept together for petitioners (who are sisters) and their respective children. Based on the said final decree proceedings in O.S No. 80/79 on the file of the Sub Court, Irinjalakuda, the petitioners and the children had executed Ext.P1 partition deed on 19.07.2017 and presented the same for registration before the 4[th] respondent, Sub Registrar, Kodungallur, on the premise they are entitled for lower stamp duty in terms of clause (a) of Article 42 of the Schedule to the Kerala Stamp Act (for short “the Act”) in as much as Ext.P1 deed would satisfy the definition of instrument of partition within the meaning of Section 2(k) of the Kerala Stamp Act and further that the executants thereto which includes petitioners, who are sisters and their respective children would constitute a 'family' as defined in explanation appended to Article 42 of the Schedule to the Kerala Stamp Act. From the pleadings and materials on record, it is seen that the petitioners and their children had presented Ext.P1 partition deed before the 4[th] respondent, Sub Registrar for registration claiming the aforesaid benefits. It appears that the 4[th] respondent has taken a stand that since the subject matter of the partition deed is not on the basis of the partition of inherited properties, but on the basis of the decree rendered by the Civil Court, it will not come within the ambit **WP(C).No. 26687 of 2018** **4** of Section 2 (k) of the Act and thereupon he had impounded Ext.P1 document under Section 33 of the above Act and had referred the matter under Section 37 of the Act to the 3[rd] respondent, District Registrar (General) for determination of the actual stamp duty and the penalty payable thereon. The 3[rd] respondent, District Registrar (General) has now issued impugned Ext.P3 proceedings dated 28.11.2017, taking the stand that Ext.P1 partition deed will not come within the ambit of instrument of the partition under Section 2(k) of the Act, as understood in as much as what is sought to be partition is not the inherited property, but on the basis of the decree of the Civil Court. On this permise, the 3[rd] respondent, District Registrar has taken a stand that the petitioners and their children cannot get the benefit of clause (a) of Article 42 of the Schedule to the Act and their case would be covered by clause (b) there of in which case the stamp duty payable is Rs.1,10,420/- and has also imposed the penalty of Rs.500/-. It is these orders that are under challenge in this writ petition. Reading of Ext.P3 would disclose that the petitioners had also made available the copy of the judgment and decree (final decree proceedings) of the Sub Court, Irinjalakuda in O.S No. 80/79, which undoubtedly was a suit for partition. It is also not a serious dispute that in the final decree proceedings initiated pursuant to that preliminary decree passed in the said suit for partition, an item of property was kept together for the petitioners (who are sisters) and their respective children. It is also a common ground that there are six executants of Ext.P1 partition deed out of which two are the petitioners direct sisters and the others are two respective children each of the first and second petitioners. Section 2(k) of the Kerala Stamp Act defines the instrument of partition as follows: **WP(C).No. 26687 of 2018** **5** _“(k) Instrument of Partition means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any Revenuee Authority or any Civil Court and an award by an arbitrator directing a partition.”_ 5. Therefore the said stand taken by the 3[rd] and 4[th] respondents that Ext.P1 deed cannot be treated as a partition deed within the meaning of Section 2(k) of the above said Act in as much as what is already sought in partition is not inherited property, but on the basis of final decree proceedings of the Civil Court in a suit for partition is untenable and unsustainable in law. A perusal of the definition in Section 2(k) of the above said Act would make it abundantly clear that so long as the instrument whereby co-owners of any property divide or agree to divide such property in severalty, 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. When the definition of Section 2(k) is a such wide terms, it is not understandable, as to how the 3[rd] and 4[th] respondents have taken such a narrow and pedantic reading of the said provision. 6. Ext.P1 partition deed has been executed on 19.07.17. Therefore it is trite that the law it stood as the date of execution is the applicable law. This observation is made by the Court in as much as is now pointed out by both sides that the explanation appended to Article 42 schedule to the Stamp Act has been later amended and deleted with effect from 01.04.18 as per the provisions contained in Kerala Finance Act (Act No.5 of 2018) published in Kerala Gazatte Ext.No.838 dated 31.03.2018 (with effect from 01.04.2018). Explanation appended to Article 42 of the Kerala Stamp Act at the relevant time prior to 01.04.2018 reads as follows: **WP(C).No. 26687 of 2018** **6** _“Art.42 Explanation:- 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.”_ 7. The scope and ambit of the explanation appended to Article 42 has been dealt with by a Full Bench of this Court in the case in **Abdul Muneer v. Sub Registrar** reported in **2018(1) KLT 238** whereby it has been conclusively held by the Full Bench thereon that to asses the eligibility for reduction of Stamp duty under Article 42(a) what is to be seen is the relationship between the co-owners at the time of execution of the partition deed and if each of the co-owner is related to atleast one of the other in the enumerated categories of relationship prescribed in the explanation appended to Article 42, then the partition deed between them would become deserving to lower stamp duty under clause (a) of Article 42. Therefore, what is relevant to determine is as to whether each of the co-owner, who is executant to the partition deed is related atleast to one of the other in the enumerated categories of relationship as envisaged in explanation appended to Article 42 and it is not necessary that each one of the executants should necessarily be related to all the other executants in terms of the enumerated categories of relationship as per the explanation. In the instant case, it is not in the dispute that the executants to Ext.P1 partition deed are two sisters and their respective children. Therefore, the first petitioner and her two children would constitute a family and the second petitioner and her two children would also constitute a family. Moreover, petitioners are direct sisters. Therefore, it is crystal clear that each of the executant co-owners in Ext.P1 partition deed is related to atleast one of the other **WP(C).No. 26687 of 2018** **7** executants in the enumerated categories of relationship as prescribed in explanation under Article 42 and hence, Ext.P1 partition deed would deserve lower stamp duty under clause (a) of Article 42 of the Stamp Act. 8. Therefore, in the light of the discussion, it is held that the 3[rd] and 4[th] respondents went wrong in holding Ext.P1 partition deed will not satisfy the definition of Section 2(k). In that view of the matter, the impounding decision of the 4[th] respondent in impounding the documents under Section 33 of the Act and the consequential decision of the 3[rd] respondent in Ext.P3 passed under Section 37(4) of the Act will stand set aside. Consequentially, the matter will stand remitted to the 4[th] respondent for considering the registration of Ext.P1 deed afresh. Accordingly, the 3[rd] respondent, District Registrar is directed the authority to transmit Ext.P1 partition deed to the 4[th] respondent, Sub Registrar for consideration of registration of the documents, in accordance with the legal position discussed herein above. The 4[th] respondent will register Ext.P1 document if its is otherwise in order and on the premise it deserve lower stamp duty in clause (a) of Article 42 of the Stamp Act. Petitioners will produce the certified copy of the judgment to the 3[rd] and 4[th] respondents with necessary information and compliance. With these observations and directions, the Writ Petition stands finally disposed of. ## **Sd/- ALEXANDER THOMAS, Judge** lsn **WP(C).No. 26687 of 2018** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PARTITION DEED EXECUTED BETWEEN THE PETITIONERS AND THEIR CHILDREN ON 19.07.2017 AND PRESENTED FOR REGISTRATION BEFORE THE 4TH RESPONDENT. EXHIBIT P2 A TRUE COPY OF THE REPLY DATED 26.08.2017 ISSUED BY THE 1ST PETITIONER. EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 28.11.2017 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 19.2.18 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 3.5.2018.** ## **RESPONDENTS EXHIBITS : NIL** ## **TRUE COPY** **P.A TO JUDGE** **LSN**