W.P.(C).No. 27568 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY ,THE 20TH DAY OF AUGUST 2018 / 29TH SRAVANA, 1940** ## **WP(C).No. 27568 of 2018** ## **PETITIONER/S:** ## 1. KUTTYMON, S/O VALIYAKANDAR,AGED 69 YEARS, KATTIKOLOTH,PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. ## 2. SREEDHARAN, S/O VALIYAKANDAR, AGED 67 YYEARS, KATTIKOLOTH,PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. ## 3. PRABHAKARAN, S/O LATE NAMBI AGED 52 YEARS, KATTIKKOLOTH,PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. ## 4. PRADEEPKUMAR, S/O LATE NAMBI,AGED 46 YEARS, KATTIKKOLOTH,PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. ## 5. PRAMODKUMAR, S/O LATE NAMBI AGED 42 YEARS, KATTIKKOLOTH,PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. ## 6. PREETHA, D/O LATE NAMBI, W/O RAVICHANDRAN,AGED 41 YEARS, KATTIKKOLOTH,PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. ## 7. PRAJEESH KUMAR, S/O LATE NAMBI AGED 39 YEARS, KATTIKKOLOTH,PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. ## 8. JANU, W/O LATE NAMBI, AZHUVALAPPIL, PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. ## 9. MANEESH, S/O LATE GANAPATHI,AGED 40 YEARS, KATTIKKOLOTH,PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. ## 10.MINI, AGED 49 YEARS,D/O LATE GANAPATHI, KATTIKKOLOTH,PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. 11. MANJULAKUMARI, AGED 44 YEARS,D/O LATE GANAPATHI, KATTIKKOLOTH,PO.CHETTIPPADI,MALAPPURAM DISTRICT PIN 676319. ## **BY ADVS.** **SRI.K.P.SUDHEER SMT.C.K.SHERIN** ## **RESPONDENT/S:** 1. DISTRICT REGISTREAR (GENERAL) MALAPPURAM DISTRICT. 2. SUB REGISTRAR, - OFFICE OF THE SUB REGISTRAR, PARAPPANANGADI,MALAPPURAM DISTRICT,PIN 676303. ## **OTHER PRESENT:** ## **G.P AC.VIDYA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 27568 of 2018 ================== Dated this the 20[th] day of August, 2018 **J U D G M E N T** It is the case of the petitioners that they are the legal representatives/legal heirs of the one Valiyakandar. The petitioners herein, 11 in number, have executed Ext.P-1 partition deed 7.3.2018 and presented the same for registration before the 2[nd] respondent Sub Registrar, SRO, Parappanangadi, by treating it as an instrument of partition as per Sec.2(k) of the Kerala Stamp Act, 1959 and also by treating that the said deed deserves lower stamp duty in terms of clause (a) of Art.44 of the Schedule to the said Act. The petitioners have claimed that they would satisfy the definition of “ _family_ ” as per the Explanation appended to Art.44 of the Schedule to the Act. 2. Ext.P-1 deed pertains to 15 items of properties acquired by the Valiyakandar and his four sons, namely, Nambi, Ganapathi, Kuttymon (1[st] petitioner) and Sreedharan (2[nd] petitioner). Out of the said 15 items of properties, two items of properties were purchased by Valiyakandar and the remaining 13 items of properties were purchased by the four sons of Valiyakandar. Nambi and Ganapathi, who were the two sons of Valiyakandar, have died and petitioners 3 to 8 are the legal heirs of the Nambi and petitioners 9 to 11 are the legal W.P.(C).27568/18 - : 4 :- heirs of Ganapathi. The 2[nd] respondent SRO, on presentation of Ext.P-1 partition deed dated 7.3.2018, impounded the same as per Sec.33(1) of the Kerala Stamp Act on the premise that it is deficiently stamped and had referred the matter to the 1[st] respondent District Registrar as per Sec.37(2) of the said Act, for determination of the correct stamp duty payable for the said instrument and for penalty, if any. The 1[st] respondent District Registrar has thereafter issued Exts.P-2 and P-3 orders under Sec.39 of the Kerala Stamp Act holding that one of the properties (item No.1) is not partible and so, all the executants are not co-owners of that property and further holding that the petitioners should remit the total stamp duty amount of Rs.6,53,400/- and a penalty of Rs.3,000/- and also registration fee of Rs. 40,900/-, thus totalling to an amount of Rs.6,97,300/-. It is the abovesaid decisions of 2[nd] and 1[st] respondents that are under challenge in this Writ Petition (Civil). The prayers in this Writ Petition (Civil) are as follows: - _“(i) call for the records leading to Exhibits P-2 and P-3 and quash Exhibits P-2 and P-3 by issuing a writ of certiorari or other appropriate writ, order or direction;_ - _(ii) issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to register Exhibit P-1 deed of partition by accepting the registration fee in terms of clause 1(a)(1)(viii) of Registration Act, and Article 42(a)(i) of the Stamp Act;_ - _(iii) declare that the executants to Ext.P-1 partition deed comes within the item “Family” prescribed in Explanation to Article 42(a)(i) of_ W.P.(C).27568/18 - : 5 :- _Stamp Act and direct the respondent to register Ext.P-1 partition deed accepting the stamp duty prescribed in Article 42(a)(i) of the Stamp Act;_ - _(iv) issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”_ 3. Heard Sri.K.P.Sudheer, learned counsel appearing for the petitioners and Smt.A.C.Vidhya, learned Govt. Pleader appearing for the respondents. 4. According to the petitioners, all the 15 items of properties are partible and that the 11 petitioners herein, who are the 11 executants of Ext.P-1 deed, are the co-owners of the abovesaid properties and that Ext.P-1 partition deed would satisfy the definition of Sec.2(k) of the Kerala Stamp Act, which reads as follows: _**“Sec.2: Definitions.-** In this Act, unless the context otherwise requires,-_ _(a) ....._ _xxx xxx xxx_ _(k) "_ _**instrument of partition** " means any instrument whereby co-owners of any property divide or agree to divide such property in severality, 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;”_ 5. It is the further contention of the petitioners that since Ext.P-1 deed was executed on 7.3.2018, the stamp duty payable is on the basis of the law, as it stood on that day and not on the basis of the amended provision that has been made effective from 1.4.2018. According to the petitioners, they would also satisfy the definition of W.P.(C).27568/18 - : 6 :- “ _family_ ” as per the Explanation appended to Art.42 of the Schedule to the Kerala Stamp Act. The abovesaid Explanation to Art.42 provides as follows: _“42. Partition-Instrument of as defined by Section 2(k):_ **==> picture [159 x 7] intentionally omitted <==** _**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.”_ 6. A Full Bench of this Court in the decision in _**Abdul Muneer v. Sub Registrar**_ reported in 2018 (1) KLT 238 (F.B), has held, more particularly in 25 thereof, that to assess the eligibility for reduction of stamp duty in terms of clause (a) of Article 42(1), what is to be seen is the relationship between the co-owners at the time of execution of the partition deed. In other words, if each of the coowner is related to at least one of the other in the enumerated categories of relationships prescribed in the Explanation of Art.42, then the said deed would deserve lower stamp duty in terms of Clause (a) of Art.42. However, in may cases the registration officers understand it as if each of the co-owner should necessarily be related to all the others in terms of the enumerated categories of relationships, which goes against the legal dictum laid down by the Full Bench and if permitted, would amount to re-writing the legal dictum already conclusively determined by the Full Bench as W.P.(C).27568/18 - : 7 :- aforestated. The aforesaid aspects relating to the applicability of Full Bench dictum has not been examined either by the 2[nd] respondent SRO before he took the impugned decision or by the 1[st] respondent District Registrar (General). A Division Bench of this Court in the case _**Vasudevan Vadhyan Namboothiri v. District Registrar (General)**_ reported in 2018 (3) KLT 519 (DB) has also reiterated the above legal principle in that regard. Therefore, what is to be determined for assessing the eligibility for reduction of stamp duty in terms of Clause (a) of Art.42 is as to the relationship between the co-owners at the time of execution of the partition deed, as aforestated. 7. Further from a reading of Ext.P-2 it can be seen that the main objection found by the 1[st] respondent District Registrar is that as regards item No.1 of the property, the same was acquired by Valiyakandar on the basis of document No.1827/1978 and that as per the stipulations in the said document, the only the first and second executants of Ext.P-1 deed (1[st] and 2[nd] petitioners herein, who are the two sons of Valiyakandar) alone have right over that property after the life time of Valiyakandar, etc. and that therefore, the said property covered by item No.1 of Ext.P-1 is not partible, etc. The abovesaid objections are raised in para 4 of Ext.P-2 order dated 12.4.2018, W.P.(C).27568/18 - : 8 :- ## which reads as follows: _"_ ബനവസ� ആധ�ര� പര�ശ��ധ�ചത�ൽ ഭ�ഗ� ച�യ�ന വസത� വഹകള�ൽ ആധ�രത�ച എ "� കക�കൾക�� ക&ടവക��മ� "�ച)ന� വ*കമ�ക�ന� _._ ഏത�ന�� വസത�വഹകൾ _1, 2_ നമർക�ര�� _,_ നമ� ഗണപത� എന�വര�� ശ�ർന� ത1ര വ�ങ�)�ട�ളത�� ഏത�ന�� വസത�വഹകൾ _1827/1/1978_ നമർ ആധ�രപപക�ര� _1, 2_ നമർക�ര�ച6 പ�ത�വ�) വ �) കണർ എന�വര�ച6 ശപര�ൽ ത1ര വ�ങ�)�ട�ളത�� 6� വ �) കണറ�ച6 ക� ശ�ഷ� 6�)�നചറ അവക��� മകള�) _1, 2_ നമർ കക�കൾക� മ�പത� സ�ദ�ക�നത�� ഭ�ഗപപതത�ച മറ� കക�കൾക� ഈ വസത�വ�ൽ _._ അവക��� ഭ�ക�ന� "�തത�മ�ണ ആ)ത�ന�ൽ ഭ�ഗ� ച�യ�ന വസത� വ�ൽ എ "� കക�കൾക�� ക&ടവക��� സ�ദ�ക�ന� " _._ ആ)ത�ന�ൽ ഭ�ഗപപതത�ച വഹകള�ൽ ഭ�ഗ� ച�യ�നവർക� ക&ടവക��� ഇ " എന അഭ�പപ�)ശത�ട ശ)�ജ�ക�ന� _.”_ 8. The abovesaid objection of the 1[st] respondent has been countered by the petitioners by filing additional affidavit dated 14.8.2018, along with which they have produced Exts.P5 to P-8 documents. Ext.P-5 is document No.1872/1978 referred to in para 4 of Ext.P-2, on the basis of which Valiyakandar had acquired the property as per the said sale deed. A reading of Ext.P-6 would disclose that no such stipulations are made in that document that only the 1[st] and the 2[nd ] petitioners alone will have right over the said property after his life time. According to the petitioners, Ext.P-6 is the sale deed, by which the four sons of Valiyakandar had acquired another property, which is adjacent to the property covered by Ext.P-5 from the very same vendor of Ext.P-5 sale deed. That on the death of Valiyakandar the property covered by Ext.P-5 sale deed devolved upon his legal heirs, viz., his wife Ittichira, petitioners 1 and 2, deceased Nambi, Ganapathi, Thankammu, Soumini, Padmini, W.P.(C).27568/18 - : 9 :- Vasantha and Prasanna and later, the abovesaid Thankammu, Soumini, Padmini, Vasantha, Prasanna and Ittichira (daughters and wife of Valiyakandar respectively) had surrendered their undivided rights (1/6[th] shares) in respect of Ext.P-5 property to the 1[st] petitioner Kuttymon as per Ext.P-7 surrender deed. That thus the 1[st] petitioner (Kuttymon), the 2[nd] petitioner (Sreedharan), Nambi and Ganapathi thus became the co-owners of the property covered by Ext.P-5 document No.1827/1978. Thereafter, Ganapathi died and his right in respect of Ext.P-5 property devolved upon his wife and children (petitioners 9 to 11). According to the petitioners, the 11 petitioners herein thus became the co-owners in respect of the property covered by Ext.P-5 sale deed itself. From a reading of the impugned orders at Exts.P-2 and P-3, more particularly para 4 of Ext.P-2 and also taking into account Exts.P-5 to P-8 it is seen that the 1[st] respondent District Registrar has only referred to Exts.P-5 and P-6 deeds and has not examined the impact of Exts.P-7 and P-8 documents in order to appreciate the contention of the petitioners that all the 11 petitioners became the co-owners in respect of the property covered by Ext.P-5 document No.1827/1978 as well. Hence the decision making process on the part of the 2[nd] and 1[st] respondents is vitiated by taking into account irrelevant considerations and also not taking into account the W.P.(C).27568/18 - : 10 :- relevant and crucial aspects of the matter, like the impact of the Full Bench dictum as well as the abovesaid documents as per Exts.P-5 to P-8. 9. In that view of the matter, it is ordered that the impugned decision of the 2[nd] respondent taken under Sec. 33(2) of the Kerala Stamp Act in impounding the document and in referring the matter under Sec. 37(2) to the 1[st] respondent and the consequential decision of the 1[st] respondent District Registrar under Sec.33(i)(v) of the Kerala Stamp Act as per Exts.P-2 and P-3 will stand set aside. The matter will stand remitted to the 2[nd] respondent Sub Registrar, SRO, Parappanangadi, for consideration of the issue regarding the registration of Ext.P-1 partition deed afresh. The 1[st] respondent District Registrar will immediately transmit the original of Ext.P-1 deed to the 2[nd] respondent. The petitioners may submit a detailed representation to the 2[nd] respondent detailing out the genealogy as per Ext.P-4 as well as stating the details of the derivation of titles in respect of the 15 items of properties as mentioned in this Writ Petition as well as in the additional affidavit dated 14.8.2018 on the basis of additional documents as per Ext.P-5 to P-8. The petitioners will ensure that a certified copy of this judgment along with copies of the Writ Petition including its exhibits as well as additional affidavit W.P.(C).27568/18 - : 11 :- dated 14.8.2018 including its exhibits, should also be made available to the 2[nd] respondent Sub Registrar. The petitioners may produce the attested copies of the various documents before the 2[nd] respondent and the originals of the respective documents also be made available to the 2[nd] respondent for perusal and verification and after such verification, the originals may be returned to the petitioners. The 2[nd] respondent will examine as to whether the petitioners herein are the co-owners of the abovesaid properties on the basis of the documents produced by them. It appears that the only objection raised by the 1[st] respondent was in respect of item No.1 property. If it is held that the petitioners are co-owners of the abovesaid properties, then the 2[nd] respondent will also examine the issue as to whether each of the executants of Ext.P-1 deed is related at least to one of the other in terms the relationship, as envisaged in Explanation to Art.42 of the Schedule to the Kerala Stamp Act, as it stood prior to 1.4.2018. If it is made out that each of the co-owners at the time of execution of the deed is related to at least one of the other in the enumerated categories of relationship, then the instrument of partition between such co-owners would deserve lower stamp duty as envisaged in clause (a) of Art.42 thereof. In this process, the 2[nd] respondent shall not insist that each of the executant should necessarily be related to W.P.(C).27568/18 - : 12 :- all the others in terms of the abovesaid relationships, which is impermissible in law, going by the legal dictum laid down by the Full Bench in the aforecited judgment. The formalities in this regard will be completed by the 2[nd] respondent within one month from the date of receipt of Ext.P-1 deed. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** W.P.(C).27568/18 - : 13 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PARTITION DEED DATED 7.3.2018 PRESENTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE ORDER NO.G1-1532/2018 (1) DATED 12/04/2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P3** **TRUE COPY OF ORDER NO.G1-1532/2018(2) DATED 12/04/2018 ISSUED BY THE 1ST RESPONDENT ALONG WITH COVERING LETTER.** **EXHIBIT P4 TRUE COPY OF THE GENEALOGY OF THE FAMILY OF THE PETITIONER.** **EXHIBIT P5 TRUE COPY OF SALE DEED DATED 26.7.1978 REGISTERED AS DOC.NO 1827/1978 OF PRAPPANANGADI SRO.** **EXHIBIT P6 TRUE COPY OF SALE DEED DATED 7.8.1979 REGISTERED AS DOC NO.2187/1979 OF PARAPPANANGADI SRO.** **EXHIBIT P7 TRUE COPY OF SURRENDER DEED DATED 12.7.1995 REGISTERED AS DOC.NO./1435/1995 OF PRAPPANANGADI SRO.** **EXHIBIT P8 TRUE COPY OF THE SURRENDER DEED DATED 15.11.2005 REGISTERED AS DOC NO 3246/2005 OF PRAPPANANGADI SRO.**