Kerala High Court
Ouseph vs The Sub Registrar on 12 December, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940
WP(C).No. 39984 of 2018
PETITIONER:
OUSEPH,
AGED 84 YEARS
S/O.OUSEPH, PUTHUSSERY HOUSE, KOKUNNU,
MOOKANNOR P.O., PIN-683577, ERNAKULAM DISTRICT.
BY ADVS.
SRI.WILSON URMESE
SMT.MARIA ELIZABETH WILSON
RESPONDENTS:
1 THE SUB REGISTRAR, SUB REGISTRAR OFFICE,
ANGAMALY P.O., PIN- 683572, ERNAKULAM DISTRICT.
2 THE DISTRICT REGISTRAR (GENERAL),
DISTRICT REGISTRAR (GENERAL) OFFICE, ERNAKULAM,
KOCHI, PIN- 682016, ERNAKULAM DISTRICT.
3 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, REGISTRATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001.
SMT.A.C.VIDHYA, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C)No.39984 of 2018
2
ALEXANDER THOMAS, J.
=============================
W.P(C)No.39984 of 2018
=============================
Dated this the 12th day of December, 2018
JUDGMENT
The prayers in the above Writ Petition (Civil) are as follows:
"(i) Call for the records leading to the case;
(ii) Issue a Writ of Certiorari quashing Exts.P9 to P12;
(iii) Issue a Writ of Mandamus or any other appropriate writ or order directing the 1st respondent to register Exts.P5 to P8 documents treating them as rectification deeds;
(iv) Issue such other reliefs as this Honourable Court may deem fit."
2. Heard Sri.Wilson Urmese, learned counsel for the petitioner and Smt.A.C.Vidhya, lerned Government Pleader appearing for the respondents.
3. The petitioner is aggrieved by the impugned decisions of the 2nd respondent-District Registrar rendered as per Exts.P-9 to P-12 proceedings, whereby he has taken the view that the deeds presented by the petitioner for registration does not amount to, as per Exts.P5 to P-8 cannot be treated as merely rectification deeds and that the recitals in the impugned deeds describing the revised boundaries would amount to alteration of the nature of the land and W.P(C)No.39984 of 2018 3 therefore, it has been treated as fresh conveyance and that petitioner will have to pay stamp duty on that premise. The matter in issue appears to be covered in favour of the petitioner, as per the dictum laid down by this Court in the case in Jihas v. District Registrar reported in 2012 (3) KLT 194, wherein it has been held that for correction of mistakes in the sale deed, even if it is with regard to the flat number, duty/fee payable only is as per the prescription for rectification deed, if the deed is for rectification of such mistakes in the sale deed and that even if there is an extinguishment of right and creation of right that will not alter the nature of the rectification deed and for all purposes including stamp duty, the document has to be treated as a rectification deed. The said judgment of this Court in Jihas's case (supra) reported in 2012 (3) KLT 194 reads as follows:
"Ext.P1 is a sale deed in which the petitioner is the Vendor. By this document, what was conveyed is Flat No.I-11 of the apartment complex by name "Jewel Lexington". The flat number indicated in the document is I-1. Further, there was also a mistake committed in the Pan number of the vendor. For correcting the aforesaid two mistakes, the parties to Ext.P1 executed Ext.P1 rectification deed. According to the petitioner, Ext.P2 document was presented for adjudication before the 1 st respondent in terms of S.31 of the Kerala Stamp Act. On adjudication, the 1st respondent has issued Ext.P3 taking the view that Ext.P2 for all purposes should be treated as a sale deed. It is challenging Ext.P3, this Writ Petition is filed.
2. View taken in Ext.P3 is that, since in Ext.P1 the property sold is Flat No.I-1 and as what is now conveyed is Flat No.I-11, in the process of rectification what is relly taken place W.P(C)No.39984 of 2018 4 is extinguishment of right in respect of one and creation of right in respect of another. It is therefore that, the 1 st respondent has held that what is to be executed should be a sale deed.
3. Having heard the learned counsel for the petitioner and also the learned Government Pleader on behalf of the respondents, I am not in a position to endorse the view taken by the 1st respondent. It is true that there is an extinguishment of right in respect of one apartment and creation of right in respect of another. But, such extinguishment of right and creation of right has occurred due to a mistake that had crept into Ext.P1 sale deed. It is that mistake, which is sought to be corrected by Ext.P2 rectification deed. In that process, even if there is an extinguishment of right and creation of right, that will not alter the nature of the rectification deed and for all purposes including stamp duty, the document has to be treated as a rectification deed and for all purposes including stamp duty, the document has to be treated as a rectification deed.
4. Therefore, the petitioner cannot be saddled with the liability to execute a fresh sale deed. For this reason, I set aside Ext.P3 and direct that the original of Ext.P2, if valid, in all other respects, will be registered as a rectification deed on being presented for registration.
Writ Petition is disposed of as above."
4. In the light of the abovesaid legal principles laid down by this Court in Jihas's case (supra), this Court is of the considered opinion that the impugned decision of the 2nd respondent-District Registrar as per impugned Exts.P-9 to P-12 proceedings is legally unsustainable and legally wrong. In that view of the matter, the said impugned proceedings at Exts.P-9 to P-12 will stand set aside and it is ordered and declared that the abovesaid deeds as per Exts.P-5 to P-8 is to be treated only as rectification of the mistakes in the sale deeds concerned. Consequently, it is ordered that on the petitioner W.P(C)No.39984 of 2018 5 presenting the said deeds for registration before the 1 st respondent- Sub Registrar, the said officer will register the same as a rectification deed, if it is otherwise in order. However, it is made clear that the 1st respondent cannot refuse to register the said deed on the grounds cited in the impugned Exts.P-9 to P-12 proceedings. However, the petitioner shall pay the prescribed registration fee as applicable for the rectification deed, in terms of the provisions contained in the table of fees appended to the Registration Act, 1908.
With these observations and directions, this Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE vgd/14.12.18 W.P(C)No.39984 of 2018 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.6147/2004 OF SRO, ANGAMALY.
EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.6148/2004 OF SRO, ANGAMALY.
EXHIBIT P3 TRUE COPY OF THE SALE DEED NO.6149/2004 OF SRO, ANGAMALY.
EXHIBIT P4 TRUE COPY OF THE SALE DEED NO.6150/2004 OF SRO, ANGAMALY.
EXHIBIT P5 TRUE COPY OF THE CORRECTION DEED, PRESENTED FOR REGISTRATION, IN RESPECT OF SALE DEED NO.6147/2004.
EXHIBIT P6 TRUE COPY OF THE CORRECTION DEED, PRESENTED FOR REGISTRATION, IN RESPECT OF SALE DEED NO.6148/2004.
EXHIBIT P7 TRUE COPY OF THE CORRECTION DEED, PRESENTED FOR REGISTRATION, IN RESPECT OF SALE DEED NO.6149/2004.
EXHIBIT P8 TRUE COPY OF THE CORRECTION DEED, PRESENTED FOR REGISTRATION, IN RESPECT OF SALE DEED NO.6150/2004.
EXHIBIT P9 TRUE COPY OF THE NOTICE INS(2)2620/12 DATED 31.10.2012 OF THE 2ND RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE NOTICE INS(2)2617/12 DATED 31.10.2012 OF THE 2ND RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE NOTICE INS(2)2618/12 DATED 31.10.2012 OF THE 2ND RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE NOTICE INS(2)2619/12 DATED 31.10.2012 OF THE 2ND RESPONDENT.