Kerala High Court
M.T.Unnikannan vs The District Registrar on 27 September, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940
WP(C).No. 27005 of 2017
PETITIONER:
M.T.UNNIKANNAN
S/O.LATE K.P.ACHUTHAN NAIR, AGED 65 YEARS, MANCHARATH
THAZHATHETHIL, POST THRIKKANAPURAM, PONANI TALUK,
MALAPPURAM DISTRICT.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SMT.MEENA.A.
SRI.ASHWIN SATHYANATH
SRI.K.C.KIRAN
SRI.SAJU.S.A
SRI.VINAY MATHEW JOSEPH
SRI.VINOD RAVINDRANATH
RESPONDENTS:
1 THE DISTRICT REGISTRAR, MALAPPURAM
PIN-676505.
2 THE SUB REGISTRAR
EDAPAL, MALAPPURAM DISTRICT, PIN-679576.
BY SR.GOVT.PLEADER SRI.SAIGI JACOB PALATTY,
OTHER PRESENT:
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 27.09.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 27005 of 2017 2
ALEXANDER THOMAS, J
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W.P.(C) No. 27005 of 2017
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Dated this the 27th day of September, 2018
JUDGMENT
According to the petitioner he is the member of an ancient Marumakkathayam Nair family by name Mancherath Thazhathethil at Thrikkanapuram, Ponani Taluk of Malappuram District. It is stated that the suit for partition of the properties belonging to the above said Marumakkathayam family was initiated as O.S.No.106 of 2006 on the file of the Subordinate Judge, Tirur, wherein a preliminary decree for partition was passed in that suit on 7.1.2012. The petitioner herein is stated to be the 4 th defendant in the said suit. The first appeal was filed against the said decree by supplemental defendants 12 and 13 in the suit before this court as RFA No.844 of 2012 and the said appeal is pending consideration before this court.
2. It is the further case of the petitioner that in the meanwhile, the parties to the suit have discussed the matter and have settled their disputes among themselves whereby they agreed to partition divide the properties WP(C).No. 27005 of 2017 3 belonging to the family and partition deed has been prepared in pursuance of the agreement entered into between the parties. Steps were taken to ensure that all the parties subscribe their signatures to the said partition deed to get the same registered before the second respondent, Sub Registrar, Edappal. The document is yet to be executed and registered before the second respondent SRO. That after preparing the draft document, the petitioner had contacted the second respondent, Sub Registrar requesting to go through the document and that he could learn that the said document will come under Article 42(i) of the schedule appended to the Kerala Stamp Act and that parties are liable to pay the stamp duty to the maximum of Rs.1,000/-. According to the petitioner, all the executants of the proposed deed are members of the same Marumakkathayam family and that Narayani Amma, grandmother of the petitioner is the common ancestors, their daughters, sons and children of predeceased son and children of daughters are the executants to the proposed partition deed. According to the petitioner, the group of executants of the above proposed deed will come under the definition of family contemplated in explanation appended to WP(C).No. 27005 of 2017 4 article 42 of the schedule of the Kerala Stamp Act. However, the petitioner has been informed that there is some confusion regarding the interpretation of the above said provision in view of certain conflicting decisions of this court which was subsequently resolved by a Full Bench order of this court and that in view of these aspects, the second respondent Sub Registrar has second thoughts as to whether the definiton of family incorporated in the explanation appended to Article 42 of the schedule to the Act will apply in the instant case etc. and that the petitioner has thus been advised to approach this court. In the light of these absence from the petitioner has filed this instant Writ Petition with the following prayers:
i) Issue a declaration that the stamp duty payable on Ext P2 will be governed by Serial No.42(i) of the schedule attached to the Kerala Stamp Act.
ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to register Ext P2 document on payment of Rs.1,000/- only as stamp duty if all the other legal formalities are properly complied with.
3. It is an indisputable fact that so far the proposed deed in question has not been executed in the manner known to law. The writ petition was filed on 14.8.2017 at the time when the unamended provisions of the Kerala WP(C).No. 27005 of 2017 5 Stamp Act and schedule thereto in force prior to the introduction of the Finance Act 2018 which came into force much later only, with effect from 1.4.2018. The subject matter of the consideration of the Full Bench of this Court in the case in Abdul Muneer v Sub Registrar reported in 2018(1) KLT 238 (FB) was related in provisions of the Kerala Stamp Act and Article 42 of the schedule as it stood prior to 1.4.2018. It is trite that the stamp duty payable is to be determined with reference to the law as it stood at the time of execution of the deed. Sri.Saigi Jacob Palatti, the learned Senior Government Pleader appearing for the respondent submits that certain amendments have been now been made providing for definition of Family as per Section 2 (fb) of the Act and the scheme for differentiated stamp duty has also been varied in Article 42 of the Schedule to the Kerala Stamp Act, as per the provisions contained in the Finance Act, 2018 which has been made effective from 1.4.2018.
4. As per the said amended provision made effective from 1.4.2018, family has been defined in Section 2(fb). The Finance Act, 2018 has not in any manner affected the existing definition of "instrument of partition" provided in WP(C).No. 27005 of 2017 6 Section 2(k) of the Kerala Stamp Act which reads as follows:
"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. However, the new definition of Family introducted as per the Finance Act, 2018 made effective from 1.4.2018, reads as follows.
"Section 2(fb): Family means father, mother, grand father, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grandchildren, brother and sister."
6. The amended provision contained in Article 42 of the Schedule dealing with partition, made effective from 1.4.2018, reads as follows.
Article 42 partititon-instrument of [as defined by Section 2(k)]:
(a) Where the Fifteen rupees for every rupees 10,000 or partition is among part thereof of the fair value of the separated all or any of the share or shares of land and the value of members of the other properties in such separated share or family and legal shares set forth in the instrument or of the heirs of the value of all the properties of the separated deceased family share or shares as set forth in the member, if any instrument, whichever is highter, subject to a minimum of rupees 1000
(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] 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 WP(C).No. 27005 of 2017 7 separated:
Provided always that-
(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.
7. Since the deed in question has not so far been executed, it is for the petitioner and the other executants concerned to execute the deed in question and present the same for partition and it is for the second respondent Sub Registrar, Edappal to determine whether the deed in question satisfies the definition of 'instrument of partition' and whether the deed is a one for partition between the family members as understood in Section 2(fb) and legal heirs of deceased family members as stipulated in Article 42 WP(C).No. 27005 of 2017 8
(a) thereof, etc. and then take steps for registering the same, subject to payment of the applicable stamp duty and registration fee thereof. If in the above process, the petitioner or any other executants have any objection in the decision so taken by the second respondnet, it will be open to them to challenge the same in the manner known to law by initiating appropriate proceedings in that regard.
With these observations the writ petition will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE cms /True copy/ P.S.to Judge APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THE COURT OF THE SUBORDINATE JUDGE OF TIRUR IN O.S.NO.106/2006 DATED 07.01.2012.
EXHIBIT P2 TRUE COPY OF THE PARTITION DEED PREPARED DATED NIL.
RESPONDENTS EXTS NIL
/TRUE COPY/
P.S.TO JUDGE
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