Unni Moyin v. The Registration Deputy Inspector General, Office of the Registration, Thiruvananthapuram; The District Registrar (Audit), Malappuram; The Sub Registrar, Edakkara, Malappuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** ## **MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945** ## **WP(C) NO. 44113 OF 2023** ## **PETITIONER:** UNNI MOYIN AGED 68 YEARS S/O SEEMAMU HAJI, AGED 68 YEARS, KOTTAYIL HOUSE, MYTHRI ROAD, MATTI - VEETTICHAL, RAMANKUTH P.O., NILAMBUR, MALAPPURAM, PIN - 679330 BY ADV R.RAMADAS ## **RESPONDENTS:** 1 THE REGISTRATION DEPUTY INSPECTOR GENERAL OFFICE OF THE REGISTRATION DEPUTY INSPECTOR GENERAL, THIRUVANANTHAPURAM,, PIN - 695001 2 THE DISTRICT REGISTRAR (AUDIT) OFFICE OF THE DISTRICT REGISTRAR, MALAPPURAM, PIN - 676504 3 THE SUB REGISTRAR SUB REGISTRAR OFFICE, EDAKKARA, MALAPPURAM, PIN - 679331 BY ADV ADVOCATE GENERAL OFFICE KERALA ## **OTHER PRESENT:** SR.GP - DEEPA NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C).No.44113 of 2023 2** ## **VIJU ABRAHAM, J.** **--------------------WP(C).No.44113 of 2023** **--------------------------Dated this the 29[th] day of January, 2024** ## **JUDGMENT** The above writ petition is filed challenging Exts.P2,P4 and P6 to P8. 2. Petitioner is the son of late Seemamu Haji, who died on 20.11.1968. Late Seemamu Haji left behind several properties and the petitioner and the other co-owners were in absolute possession and enjoyment of those properties. After the death of Seemamu Haji, the immovable properties were in the possession of all the co-owners. Subsequently, the co-owners decided to partition the properties by executing a registered partition deed and consequent to the same Ext.P1 registered partition deed bearing No.4463/2017 of SRO Edakkara was executed after paying the requisite stamp duty. After a lapse of nearly 6 years Ext.P2 letter was received by the petitioner from the Sub Registrar, Edakkara stating that the 1[st] respondent has directed to initiate proceedings under Section ## **WP(C).No.44113 of 2023 3** 33A of the Kerala Stamp Act and that the document has to be kept in the custody of the Sub Registrar. To Ext.P2 communication, petitioner submitted Ext.P3 detailed reply stating that requisite stamp duty as directed by the Sub Registrar has already been paid. Thereafter, petitioner received Ext.P4 letter from the Sub Registrar stating that the 1[st] respondent has directed to initiate proceedings under Section 33A of the Kerala Stamp Act and a direction was issued to the petitioner to remit the balance amount. To Ext.P4 also Ext.P5 reply was submitted before the District Registrar (General) Malappuram and in Ext.P5, all the facts and circumstances were explained in detail including the fact that the partition was among co-owners and that the patta obtained by certain co-owners in respect of certain items of properties were all belonging to Seemamu Haji and that those properties also belongs to the co-owners. It is contended that even though the patta was obtained in the name of one or two co-owners, the same will enure to the **WP(C).No.44113 of 2023 4** benefit of all the co-owners and all the co-owners are beneficiaries of the patta obtained from the Land Tribunal in respect of certain items of coownership properties. Without considering the reply submitted in a proper manner and without affording an opportunity of being heard, by Ext.P6 communication petitioner was informed that proceedings under Section 33A is being initiated against the petitioner. Later on, Ext.P7 order was issued wherein the petitioner has directed to remit the requisite stamp duty. Aggrieved by the same, the petitioner was approached this Court. 3. Two contentions are raised by the learned counsel for the petitioner. Though detailed reply was submitted by the petitioner, as is evident from Ext.P5, before issuing Ext.P7 order the petitioner was not afforded an opportunity of being heard and therefore, the proceedings now initiated as per Ext.P7 is in violation of Section 33A of the Kerala Stamp Act, 1959. Yet another contention raised by the petitioner is regarding the patta obtained in respect of certain co- **WP(C).No.44113 of 2023 5** ownership properties in the name of one or two coowners alone and the petitioner would contend that even though the patta was obtained in the name of one or two co-owners, the same will enure to the benefit of all the co-owners and hence all the coowners are beneficiaries of the patta obtained from the Land Tribunal. In support of his contention petitioner relies on the full bench judgment of this Court in **Viswambaran P.N v. T.P.Sanu and Others (2018 (3) KHC 73)** , wherein it is held that the benefit obtained by one of the co-owners in the form of certificate of purchase shall be held by him also for the advantage of the other co-owners and thus it shall enure to the benefit of the other co-owners also. 4. Heard the learned Government Pleader, who on the strength of the counter affidavit filed by the 2[nd] respondent would submit that since a few of the executants got independent ownership in a few properties involved in the deed, it was clear that all the executants of the partition do not posses joint ownership on the properties purported to be ## **WP(C).No.44113 of 2023 6** partitioned and in the said circumstances, the deed cannot be treated as a partition among family members as stipulated in schedule 42(a) of Kerala Stamp Act, but as conveyance as defined in Section 2(d) of Kerala Stamp Act and deficit Stamp Duty of Rs.12,23,245/- and deficit registration fee of Rs.209345/- was sought to be realized from the concerned parties. The counter affidavit does not contain a specific reply to the contention raised by the petitioner that even though the patta was obtained by one or two co-owners, the same will enure to the benefit of all the co-owners and hence all the co-owners are beneficiaries of the patta obtained from the Land Tribunal and that going by S.33A of the Stamp Act, in a proceeding under Section 33A, the petitioner should be afforded an opportunity of being heard. 5. In **Viswmabaran P.N** 's case cited supra, it was held that certificate of purchase issued to one of the co-owners shall enure to the benefit of the other co-owners also. 6. As regard the second contention of the **WP(C).No.44113 of 2023 7** petitioner that Ext.P7 has been issued without affording an opportunity of being heard to the petitioner, Section 33A of the Kerala Stamp Act mandates that in the proceedings for recovery of deficit stamp duty the Registering officer can may call for original instruments from the party and after giving the party opportunity of being heard and recording the reasons in writing and furnishing a copy thereof to the party, impound it. The Section itself mandates that an opportunity of hearing shall be afforded to the party affected by the order, which has not been done in the present case. In view of the above, the writ petition is disposed of setting aside Ext.P7 order with a consequential direction to the 2[nd] respondent to reconsider the matter after affording an opportunity of being heard to the petitioner and any other affected party and after taking into consideration Ext.P5 objection submitted by the petitioner and also taking into consideration the dictum laid down by this Court in **Viswambaran** **WP(C).No.44113 of 2023 8** **P.N'** s case cited supra, a copy of which shall be made available by the petitioner before the 2[nd] respondent. A fresh decision in this regard shall be taken in accordance with law, within a period of 3 months from the date of receipt of a copy of this judgment. sd/- **VIJU ABRAHAM, JUDGE** pm **WP(C).No.44113 of 2023 9** ## **APPENDIX OF WP(C) 44113/2023** PETITIONER'S EXHIBITS - Exhibit P1 TRUE COPY OF THE REGISTERED PARTITION DEED NO.4463/2017 S.R.O., EDAKKARA DATED 17.11.2017 - Exhibit P2 TRUE COPY OF THE LETTER DATED 07.06.2023 ISSUED BY THE SUB REGISTRAR, EDAKKARA TO THE PETITIONER - Exhibit P3 TRUE COPY OF THE REPLY DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE SUB REGISTRAR - Exhibit P4 TRUE COPY OF THE LETTER DATED 26.06.2023 ISSUED BY THE SUB REGISTRAR TO THE PETITIONER - Exhibit P5 TRUE COPY OF THE DETAILED REPLY DATED 21.07.2023 BEFORE THE DISTRICT REGISTRAR (GENERAL) MALAPPURAM - Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED 16.08.2023 ISSUED BY THE DISTRICT REGISTRAR (AUDIT) TO THE PETITIONER - Exhibit P7 TRUE COPY OF THE ORDER DATED 11.10.2023 ISSUED BY THE DISTRICT REGISTRAR (AUDIT), MALAPPURAM - Exhibit P 8 TRUE COPY OF THE LETTER DATED - 03.11.2023 ISSUED BY THE SUB REGISTRAR, EDAKKARA TO THE PETITIONER