Kerala High Court
T.K. Usha Kumari vs The Sub Registrar on 16 July, 2012
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY, THE 9TH DAY OF APRIL 2013/19TH CHAITHRA 1935
WP(C).No. 6596 of 2013 (Y)
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PETITIONER(S):
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T.K. USHA KUMARI, AGED 56 YEARS
ADVOCATE, W/O.ADVOCATE VINOD KUMAR,
NOW RESIDING AT VALIYAVEETIL, 2/923 C
CHAKKITTA IDA ROAD, ERANHIPALAM P.O.
KOZHIKODE 673 006.
BY ADVS.SRI.N.M.MADHU
SMT.C.S.RAJANI
RESPONDENT(S):
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1. THE SUB REGISTRAR,
WEST HILL, KOZHIKODE - 673 005.
2. THE DISTRICT REGISTRAR (GENERAL), KOZHIKODE - 673 001.
3. THE LAND REVENUE COMMISSIONER,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.
BY SPL.GOVERNMENT PLEADER SRI.TOM K.THOMAS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
W.P.(C) NO.6596/2013
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1: TRUE COPY OF THE PARTITION DEED DATED 16/07/2012.
EXT.P2:TRUE COPY OF THE NOTICE DATED 05/09/2012 ISSUED BY THE SECOND
RESPONDENT TO THE PETITIONER'S MOTHER.
EXT.P3: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER'S MOTHER TO
EXT.P2.
EXT.P4: TRUE COPY OF THE LAWYER NOTICE DATED 14/11/2012.
EXT.P5:TRUE COPY OF THE ORDER DATED 15/11/2012 ISSUED BY THE SECOND
RESPONDENT.
EXT.P6:TRUE COPY OF THE ORDER DATED 21/03/2012 ISSUED BY THE THIRD
RESPONDENT.
EXT.P7: TRUE COPY OF THE APPEAL IN CMA (STAMP) NO.5/13 FILED BY THE
PETITIONER'S MOTHER.
EXT.P8: TRUE COPY OF THE LETTER DATED 22/02/2013 ISSUED BY THE PETITIONER TO
THE SECOND RESPONDENT.
EXT.P9: TRUE COPY OF THE REPLY DATED 27/02/2013.
RESPONDENTS' EXHIBITS
NIL
//TRUE COPY//
P.S. TO JUDGE
tss
P.R. RAMACHANDRA MENON, J.
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W.P.(C)No.6596 OF 2013
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Dated this the 9th April, 2013
J U D G M E N T
The petitioner has approached this Court with the following prayers:
"i) issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to register Ext.P1 partition deed and to hand over the same to the petitioner.
ii) To declare that the stamp duty payable in Ext. P1 is only as contemplated in Art.42(i) of the Kerala Stamp Act.
iii) to issue a writ of certiorari or any other writ, order or direction quashing Exts.P2 and P5 orders;
iv) pass such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. "
2. The specific case of the petitioner is that a partition deed has been executed among the petitioner, her mother, sister and brothers, as borne by Ext.P1 and as such, by virtue of relevant provisions of the Kerala Stamp Act, the Stamp duty payable is only Rs.1000/-, despite which the respondent impounded the W.P.(C)No.6596 OF 2013 2 partition deed even before registering the same, which is totally alien to the statute.
3. The learned Counsel also brought to the notice of this Court that the matter was taken up before the District Court and as per the order dated 12.02.20103 in I.A. 147/2013 in CMA 5/2013 , it has been categorically held that the Registrar cannot detain the registered document and he can only assess the stamp duty payable and recover the amount; simultaneously directing the respondents therein (respondents 1 and 2 herein) to return the document to the petitioner, subject to the result of the proceedings for realisation of stamp duty and the result of that appeal.
4. Heard the learned Government Pleader as well.
5. Going by the relevant provisions of the statute, if there is any objection for the registering authority, the course to be pursued is provided under Section 45B of the Kerala Stamp Act, 1959, which is extracted below:
45B. Instruments under valued how to be dealt with.- (1) If the Registering Officer, while registering W.P.(C)No.6596 OF 2013 3 any instrument transferring any property, has reason to believe that the value of the property or the consideration, as the case may be, has not been truly set forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of the value or consideration as the case may be, and the proper duty payable thereon.
(2) On receipt of a reference under sub-
section (1), the collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, by order, determine the value of the property or the consideration and the duty aforesaid, and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty and, on the payment of such duty, the Collector shall endorse a certificate of such payment on the instrument under his seal and signature.
(3) The Collector may, suo motu, within two years from the date of registration of any W.P.(C)No.6596 OF 2013 4 instrument not already referred to him under sub- section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of its value or consideration, as the case may be, and the duty payable thereon, and if after such examination, he has reason to believe that the value or consideration has not been truly set forth in the instrument, he may determine the value or consideration and the duty aforesaid in accordance with the procedure provided for in sub-section (2); and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty and, on the payment of such duty, the Collector shall endorse a certificate of such payment on the instrument under his seal and signature.
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(4) Any person aggrieved by an order of
the Collector under sub-section (2) or sub-section (3) may appeal to the District Court within whose jurisdiction the property transferred is situate.
(5) An appeal under sub-section (4) shall be filed within thirty days of the date of the order W.P.(C)No.6596 OF 2013 5 sought to be appealed against.
(6) The District Court shall hear and dispose of the appeal in such manner as may be prescribed by rules made under this Act.
6. In view of the fact that there is no dispute with regard to the sequence of events, this Court finds that there cannot be a different course for the respondents 1 and 2, than the one as stipulated in Section 45B. This is more so, in view of the order already passed by the District Court, as mentioned herein before.
In the said circumstance, the writ petition is disposed of, directing the respondents to register the Original of Ext.P1 partition deed( if the registration of the same is still to be done ) forthwith and to proceed with further steps, in terms of Section 45B of the Kerala Stamp Act.
P.R.RAMACHANDRA MENON JUDGE lk