Thadathil Ahammed @ Kasmi v. Thadathil Kunhipathummma and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH THURSDAY, THE 1ST DAY OF NOVEMBER 2012/10TH KARTHIKA 1934 OP(C).No. 1802 of 2012 (O) -------------------------OS.41/1970 of SUB COURT, TIRUR PETITIONER(S): ------------- THADATHIL AHAMMED @ KASMI, S/O.VEERAN HAJI, THADATHIL HOUSE, VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): -------------- 1. THADATHIL KUNHIPATHUMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK MALAPPURAM DISTRICT PIN 676551 2. IYYACHAKUTTY UMMA (DUMB) S/O.PARAMBATH EANIKUTTY, VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 3. IBRAHIM VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 4. AYISHA BEEVI UMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 5. ISMAIL VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 O.P.(C) NO.1802/2012 : 2 : 6. ISSAQ VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 7. PATHUMMAKUTTY UMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 8. ASSAN VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 9. NABEESA UMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 10. UBAID(DIED) VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 11. VIRALIKUTTY VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 12. AHAMMADKUTTY HAJI VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 13. MUHAMMED VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 ## 14. VELAYI VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 15. VEERANKUTTY KURIKKAL VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 O.P.(C) NO.1802/2012 : 3 : 16. SAIDALI VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 17. MUHAMMEDKUTTY VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 18. HASSAN VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 19. VEERANKUTTY VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 20. MARIYUMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 21. BEEVI UMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 22. VEERANKUTTY VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 23. ALIKUTTY VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 24. ABOOBACKER VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 25. MARIYAKUTTY UMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 O.P.(C) NO.1802/2012 : 4 : 26. KUNHIPATHUMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 27. KUNHEEMA UMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 28. KODALIL HAMZAKUTTY HAJI VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 29. KADIYUMMA UMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 30. PATHUKUTTY VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 31. IBRAHIM VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 32. SUBAIDA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 ## 33. NAFEESA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 34. HAMZAKUTTY HAJI VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 35. HYDRU VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 O.P.(C) NO.1802/2012 : 5 : 36. MUHAMMED HANEEFA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 37. SULAIKA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 38. PARAMBATH MUHAMMED VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 39. HAMZAKUTTY HAJI VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 40. HYDRU VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 41. SAIDALIKUTTY VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 42. MUHAMMED ASHRAF VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 43. MINNATH MOL VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 44. ABDUL LATHEEF VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 ## 45. MUSTHAFA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 O.P.(C) NO.1802/2012 : 6 : 46. AYAMMA UMMA VALAVANNUR AMSOM, CHERUVANNUR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT PIN 676551 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN O.P (C) No.1802 of 2012 ## PETITIONER(S) EXHIBITS - EXT.P1 A TRUE COPY OF THE FINAL DECREE DATED 5-1-2009 PASSED AS PER I.A. NO. 1694/1974 IN O.S. NO. 41/1970 ON THE FILE OF THE SUBORDINATE COURT, TIRUR. - EXT.P2 A TRUE COPY OF JUDGMENT DATED 29-9-2010 PASSED IN R.F.A. NO. 413/2009. - EXT.P3 A TRUE COPY OF THE ORDER DATED 8-7-2011 IN I.A. 729/2011 IN O.S. NO. 41/70 ON THE FILE OF SUBORDINATE COURT, TIRUR. - EXT.P4 A TRUE COPY OF I.A. 2845/2011 AN APPLICATION FILED BY THE PETITIONER BEFORE THE SUB COURT, TIRUR TO ENGROSS THE FINAL DECREE IN THE STAMP PAPER. - EXT.P5 A TRUE COPY OF THE ORDER DATED 13-4-2012 IN I.A. NO. 2845/2011 IN O.S. NO. 41/1970 ON THE FILE OF THE SUBORDINATE COURT, TIRUR. //TRUE COPY// P.S. TO JUDGE. **“C.R.”** ## **V. CHITAMBARESH, J -------------------------------O.P.(C) No.1802 of 2012 ------------------------------------** Dated this the 1[st] day of November, 2012 ## **J U D G M E N T** Is stamp duty leviable according to the Stamp Act in force at the time of the passing of the final decree or at the time of engrossing the final decree on non-judicial stamp papers in a suit for partition ? This assumes importance since the Kerala Stamp Act, 1959 ('the Act' for short) has been amended by the Kerala Finance Act, 2011 whereby the stamp duty leviable for partition decree is drastically reduced. 2. The preliminary decree in the suit for partition in O.S.No.41/1970 on the file of the court of the Subordinate Judge of Tirur was passed on 9.4.1974 followed by a final decree on 5.1.2009. The same was the subject matter of appeal in R.F.A.No.413/2009 on the file of this Court wherein the case was remanded and a final decree for partition passed anew by the trial court on 8.7.2011. The petitioner herein who was the plaintiff in the suit furnished non-judicial stamp papers worth Rs.1,000/- and filed I.A.No.2854/2011 on OP(C) No.1802/2012 2 25.10.2011 for engrossing the final decree. The petitioner contended that the sharers are entitled to the benefit of the amended Act which has come into force with effect from 19.7.2011 whereunder the maximum stamp duty leviable is only Rs.1,000/-. The petitioner asserted that stamp duty could be levied only at the rate prevailing as on the actual date of engrossing the final decree for partition on non-judicial stamp papers. The court below has by the order impugned dismissed I.A.No.2854/2011 holding that the sharers are liable to pay stamp duty at the rate prevailing when the final decree for partition was originally passed on 5.1.2009. 3. I heard Mr.T.Krishnanunni, Senior Advocate on behalf of the petitioner and the Government Pleader who was put on notice. Valuable assistance was also rendered by Mr.A.R.Dileep, Advocate who had been appointed as the amicus curiae by his sober and mature arguments. 4. I shall at the outset refer to some of the provisions of the Civil Rules of Practice (Kerala), 1971 ('the Rules' for short) in regard to the engrossing of the final decree for partition OP(C) No.1802/2012 3 ## on non-judicial stamp papers. Rule 187 of the Rules is as follows:- **187. Final decree in partition suits** :- Final decrees in partition suits shall be prepared and stamp duty levied in accordance with the following directions: (1) The value of the shares shall be the value as assessed by the Commissioner and accepted by the Court. (2) The stamp duty leviable shall be according to the Stamp Act in force at the time of the passing of the final decree. (3) The Court shall insist on the commissioner filing a schedule showing the valuation of the shares for the purpose of stamp duty. Rule 236 of the Rules is as follows:- **236. Furnishing of stamp paper for final decree:-** The Court shall, in its final judgment in a partition suit, direct the parties to deposit in court the amount required for the non-judicial stamp paper for engrossing the decree in proportion to the value of their shares and any party failing to deposit the amount as directed within the time allowed shall be deemed to be in default and shall be liable for the OP(C) No.1802/2012 4 costs of the adjournment. The Court may allow any party to deposit the entire amount or the share of any other party and direct the same to be realised from the party or parties liable for the same. A combined reading of Rule 187 and Rule 236 of the Rules reveals that the stamp duty leviable shall be according to the Act in force at the time of passing of the final decree and that the court in its final judgment should specify the amount. The court should also direct the parties to deposit in court the amount required for the non-judicial stamp papers for engrossing the final decree in proportion to the valuation of their shares. 5. The date of the final decree cannot be different from the date of the final judgment in a suit for partition and a reference to Order XX Rule 7 of the Code of Civil Procedure, 1908 ('the CPC' for short) is apposite. The same reads as follows:- **7. Date of decree** :- The decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. [Provided that the decrees of the High Court OP(C) No.1802/2012 5 may be signed by the officer empowered in that behalf.] It is therefore crystal clear that the sharers are obliged to pay stamp duty at the rate prevailing as on the date of final judgment (which should be the date of final decree also) no matter the final decree was engrossed on non-judicial stamp papers later. 6. The stamp duty leviable as per Sl.No.42 in the Schedule under the Act as on the date of the revised final decree (8.7.2011) was at the rate of 1% of the amount of Rs.43,29,340/being the value of the separated share in the instant case. Therefore the court below egregiously erred in holding that the sharers are liable to pay stamp duty at the rate of 5% of the value of the separated share as on the date of passing of the final decree (5.1.2009) originally. But then the sharers are not entitled to the benefit of the amendment to the Act brought in by the Kerala Finance Act, 2011 reducing the stamp duty to a maximum sum of Rs.1,000/-. This is because the amendment has come into force only with effect from 19.7.2011 after the date of passing of the final decree even though before the date of OP(C) No.1802/2012 6 furnishing non-judicial stamp papers. 7. I am unable to countenance the arguments of the petitioner that the provisions of the Act which is a fiscal statute should receive interpretation beneficial to the sharers in the scheme of these statutory provisions. The petitioner lamented that the sharers would be forced to pay a sum of Rs.43,293/instead of a mere Rs.1,000/- as stamp duty for the sole fact that the Act was amended 11 days after the final decree. I shall quote from **District Registrar and Collector v. Canara Bank** [(2005) 1 SCC 496] and the following excerpt is a complete answer to the problem posed: The Stamp Act is a piece of fiscal legislation. Remedial statutes and statutes which have come to be enacted on demand of the permanent public policy generally receive a liberal interpretation. However, fiscal statutes cannot be classed as such, operating as they do to impose burdens upon the public and are, therefore, construed strictly. A few principles are well settled while interpreting a fiscal law. There is no scope for equity or judiciousness if the letter of law is clear and unambiguous. The benefit of any ambiguity or conflict in different OP(C) No.1802/2012 7 provisions of statute shall go to the subject. (emphasis supplied) The impugned order is modified accordingly and the court below is directed to reconsider I.A.No.2854/2011 filed for engrossing the final decree on the sharers furnishing the requisite nonjudicial stamp papers in the light of the observations above. The original petition is disposed of. No costs. **V. CHITAMBARESH JUDGE** nj.