Kerala High Court
Abdul Khader vs The Sub Registrar on 6 February, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947
WA.No.2573 OF 2019
AGAINST THE JUDGMENT IN WP(C) 21218/2019(B) OF HIGH COURT OF KERALA DATED 19.9.2019
APPELLANT/PETITIONER:
ABDUL KHADER, AGED 57 YEARS
S/O.KOMUKUTTY, KALLINGALAKATH KADAKASSERY HOUSE,
KAVENCHERY P.O., TIRUR TALUK,
MALAPPURAM DISTRICT, PIN-676 571.
BY ADVS.
SRI.P.CHANDRASEKHAR
SRI.K.K.MOHAMED RAVUF
SRI.D.SREEKANTH
SHRI. ANOOP KRISHNA
RESPONDENT/RESPONDENT:
THE SUB REGISTRAR,
SUB REGISTRAR OFFICE,
KODACKAL P.O., TIRUR TALUK,
MALAPPURAM DISTRICT, PIN-676 108.
R1 BY SRI.V.TEKCHAND, SR. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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: 2 :
C.R.
JUDGMENT
Dated this the 6th day of February 2020 S.MANIKUMAR, C.J.
Instant writ appeal has been filed by appellant/writ petitioner, being aggrieved by judgment dated 19.09.2019 passed in W.P.(C) No.21218 of 2019.
2. Short facts leading to the appeal are that,- appellant/writ petitioner is the son of Komukkutty. Komukkutty had children in two wives. The property sought to be partitioned is belonging to Komukkutty. When the appellant and his other siblings wanted to effect partition of the properties left behind by their father, the respondent/Sub Registrar, Tirur Taluk refused to register the partition deed presented by the appellant. Moreover, treating that the descendants through two wives cannot constitute a family, the Sub Registrar insisted payment of higher stamp duty. Being aggrieved, appellant/writ petitioner approached the writ court by filing W.P.(C) No.21218 of 2019. Writ court, by the impugned judgment, dismissed the writ petition holding that appellant is not entitled for concessional stamp duty. Relevant portion of the impugned judgment reads as under:
"2. Learned counsel for the petitioner, placing reliance upon the Full Bench decision of this Court in Abdul Muneer v. Sub Registrar [2018 (1) KLT 238 (F.B)], argued that if the co-owners are several in number W.A.No.2573 OF 2019 : 3 :
and at least some among them related to a specified category, they are entitled to reduced stamp duty. Learned counsel referred to particularly the observation of the Full Bench in paragraph 25, which reads thus:
"25. ..... If the co-owners are several in number, then the benefit under this Article would flow only if each of such co-owner is related at least to one other through the specified category of relationships as is prescribed in the Explanation to Art.42".
3. After referring to the Full Bench decision, this Court in W.P.(C) No.6485 of 2018, in similar set of facts, has held as follows:
"3. The Full Bench, in fact, after adverting to two Division Bench judgments earlier came to the opinion that all that becomes relevant for the purpose of Article 42(1) of the Act is a relationship of the co-owners at the time of execution and registration of the partition deed and if they are co-owners atleast one of the others in the enumerated categories of relationship described in the explanation, they would become deserving for low stamp duty under sub clause(1) of the said Article."
4. It is to be noted that all categories as referred in the family would stand in relation to each other as referred in the explanation must come within the fold of the family. Two branches of different family come together to effect partition of property inherited from a common lineage, that cannot be treated a partition within a family. Though the right of the property traceable to common lineage as far as the parties are concerned, they are distinct family as they are having separate lineage through two wives of late K.M.Muhammedkutty. That be the position, the petitioner cannot claim concessional stamp duty payable under sub W.A.No.2573 OF 2019 : 4 :
clause (1) of Article 42. Therefore, the Registrar is justified in demanding higher stamp duty from the petitioner. The writ petition, therefore, is dismissed. No costs".
In view of the judgment as above, I find the petitioner is not entitled for concessional stamp duty. Therefore, I hold that the Sub Registrar is justified in demanding higher stamp duty for partition deed.
This writ petition is dismissed."
3. Being aggrieved by the above judgment, instant writ appeal is filed contending inter alia that, the writ court failed to consider second limb of Article 42(a) of the Schedule to Kerala Stamp Act, 1959 by which the benefit is given to the instrument of partition among the legal heirs of deceased family members as well;
that as per Exhibit-P1 partition deed, the properties are partitioned among the children of deceased Komukkutty, the father of the appellant, and the properties are not set apart to any other persons. It is further contended that the second wife of deceased Komukkutty has joined the document of partition, as it is a partition among the legal heirs of deceased Komukkuty being his wife and children they are entitled to the benefit of payment of lower stamp duty under Article 42(a) to the schedule of the Kerala Stamp Act.
4. The contention advanced by the appellant is also based on Section 2(fb) of the Kerala Stamp Act, 1959. According to the appellant, the said definition takes in husband, wife, son, daughter, etc. and the parties to Exhibit-P1, being wife, sons and W.A.No.2573 OF 2019 : 5 :
daughters of deceased Komukkutty, the writ court ought to have held that they are entitled to get the benefit of paying lower stamp duty for registration of the partition deed as per Article 42(a) of the Schedule to the Kerala Stamp Act.
5. It is further contended that the writ court has misread the judgment of the Hon'ble Full Bench of this Court reported in Abdul Muneer's case (cited supra). The Hon'ble Full Bench has specifically held that, if the co-owners are several in number, the benefit will flow only if each such co-owner is related at least to one other through the specified category of relationships. That apart, it is submitted that as the property belonged to Komukkutty, who is the deceased family member, and the parties to Exhibit-P1 document are the members of his family, being his wife and children, the parties are descendants of a common lineage, Kommukkutty, and are, therefore, entitled to the benefit of payment of lower stamp duty.
6. Learned counsel for the appellant relying on the Full Bench decision of this Court in Abdul Muneer and Another v. Sub Registrar, Tirur and others reported in 2018 (1) KHC 2017, submitted that appellant is entitled to get lower stamp duty under Sub Clause (a) of Article 42 of the Schedule to AcT, 1959. As per the decision of the Hon'ble Full Bench, to assess the eligibility for reduction of stamp duty in Article 42(1), what is to be seen is the relationship between the co-owners at the time of execution of the partition deed. If, each of the co-owner is related to at W.A.No.2573 OF 2019 : 6 :
least one of the other in the enumerated categories of relationships prescribed in the Explanation of Article 42 of the Schedule to Act, 1959, then the partition deed between them would become deserving of lower stamp duty under sub-clause (1) of the said Article. Considerations of common lineage, devolution of property etc., are all irrelevant for this purpose and all that becomes relevant for the purpose of Article 42(1) of the Schedule to Act, 1959, is the relationship of the co-owners at the time of execution and registration of the partition deed. If the co-owners are several in number, then the benefit under this Article would flow only if each of such co-owner is related at least to one other through the specified category of relationships as is prescribed in the Explanation to Article 42 of the Schedule to Act, 1959. Anyhow, after the impugned judgment, Article 42 has been substituted by the Kerala Finance Act, 2018 (w.e.f. 01/04/2018), which is dealt with hereunder.
7. Heard learned counsel for the parties and perused the materials available on record.
8. As per the provisions of Kerala Stamp Act, 1959, computation of stamp duty in the partition deed is prescribed under Article 42 of the Schedule to Act, 1959, as amended with effect from 01.04.2018. Article 42 of the Schedule reads thus:
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"42. Partition-Instrument of [as defined by Section 2(k)]:1 2 3
(a) Where the Fifteen rupees for every rupees 10,000 or part thereof of partition is among all the fair value of the separated share or shares of land and or any of the the value of other properties in such separated share or members of the shares set forth in the instrument or of the value of all the family and legal heirs properties of the separated share or shares as set forth in of the deceased the instrument, whichever is higher, subject to a minimum family member, if of rupees 1000.
any
(b) in any other case Six rupees for every rupees 100 or part thereof of the amount of the value or fair value of the separated share or shares of the property, whichever is higher.] [xxxx] N.B. The largest share remaining after the property is partitioned (or if there are two or more shares of equal value and not smaller than any of the other shares, then one of such equal shares) shall be deemed to be that from which the other shares are separated.
Provided always that-
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(a) When an instrument of partition containing an agreement to divide property in severality is executed and partition is effected in pursuance of such agreement, the duty chargeable upon the instrument effecting such partition shall be reduced by the amount of duty paid in respect of the first instrument, but shall not be less than two rupees thirty paise;
(b) Where land is held on Revenue Settlement for a period not exceeding thirty years and paying the full assessment, the value for the purpose of duty shall be calculated at twenty five times the annual revenue;
(c) Where a final order for effecting a partition passed by any Revenue authority or any Civil Court or an award by an arbitrator directing a partition is stamped with the stamp required for an instrument of partition and an instrument of partition in pursuance of such order or award is subsequently executed, the duty on such instrument shall not exceed two rupees thirty paise."
9. Family is defined under Section 2(fb) of Act, 1959, as amended with effect from 01.04.2018, and the same reads thus:
"(fb) "family" means father, mother, grandfather, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grandchildren, brother and sister:"
10. Therefore, on an analysis of Article 42 of the Schedule to Act, 1959 along with Section 2(fb) which defines family, it is categoric and clear that the persons specified therein are entitled to the benefit of lower stamp duty. Now, bearing in mind the fact that appellant and other children of Komukkutty, born in the wedlock of W.A.No.2573 OF 2019 : 9 :
Komukkutty and two wives have a common lineage of Komukkutty and they are his sons and daughters belonging to one family and not two different branches of a family. That apart, it is vivid and clear from the definition of family provided in Section 2(fb) of Act, 1959 that it would also take in wife, son, daughter, brother and sister.
11. However, the aforesaid amendments made to Article 42 of the Schedule to the Act, 1959, the deletion of explanation thereto, and the incorporation of the definition of family in Act, 1959, have not been brought to the notice of the learned single Judge, which has created the whole confusion. In the light of the amendment as specified above, the judgments relied upon by the learned single Judge referred to above may not have much relevance. The learned single Judge has relied upon the judgment in W.P.(C) No.6485 of 2018 to arrive at the conclusion that the appellant is not entitled for concessional stamp duty. However, fact remains that the judgment of the above said writ petition was on the basis of the unamended provisions of the Act, 1959. Therefore, the findings rendered by the learned single Judge based on the erstwhile provisions of Act, 1959 may not have much relevance. Therefore, taking into account the fact that wife and children of late Komukkutty being the members of the family of Komukkutty as defined under Section 2(fb) of Act, 1959, they are entitled to get benefit of the stamp duty prescribed under Article 42(a) of the W.A.No.2573 OF 2019 : 10 :
Schedule to Act, 1959.
12. In the light of above, we are of the considered view that the judgment of the learned single Judge requires interference and, therefore, the impugned judgment is set aside. Consequentially, there will be a direction to the respondent- The Sub Registrar Office, Kodackal P.O., Tirur Taluk, Malappuram District, to register the original of Exhibit-P1 partition deed as and when produced by the wife and children of deceased Komukkutty, Kallingalakath Kadakassery House, Kavenchery Desom P.O., Tirur Taluk, Malappuram District by applying the lower stamp duty prescribed under Article 42(a) of the Schedule to Act, 1959, if the same has no other defects.
Writ appeal is allowed.
SD/-
S.MANIKUMAR CHIEF JUSTICE SD/-
SHAJI P. CHALY
JUDGE
jes
W.A.No.2573 OF 2019
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APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE INTERIM ORDER DATED 05.08.2019.
// TRUE COPY //
P.S. TO JUDGE