Kerala High Court
Shereef Babu vs The State Of Kerala on 16 June, 2014
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 11TH DAY OF NOVEMBER 2014/20TH KARTHIKA, 1936
WP(C).No. 29218 of 2014 (B)
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PETITIONER :
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SHEREEF BABU, AGED 51 YEARS,
S/O. KIZHAKINIYAKATH KUNJIKOYA MUTTINAHA,
NEDUVA AMSOM DESOM, TIRURANGADI TALUK,
MALAPPURAM DISTRICT.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENT(S):
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1. THE STATE OF KERALA,
REP. BY THE SECRETARY TO THE GOVERNMENT,
REGISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM -695 001
2. THE DISTRICT REGISTRAR GENERAL,
MALAPPURAM -673 001
3. THE SUB REGISTRAR,
PARAPANGANDI SUB REGISTRY,
MALAPPURAM DISTRICT- 673 001
R1 TO R3 BY SR GOVERNMENT PLEADER SRI.MUHAMMED SHAFI.M.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11-11-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C).No. 29218 of 2014 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 A TRUE COPY OF THE DEED OF PARTITION EXECUTION
DATED 16-06-2014 OF THE PARAPANANGADI S.R.O
EXHIBIT P2 A TRUE COPY OF THE ORDER PASSED BY THE SECOND
RESPONDENT DATED 23-09-2014
EXHIBIT P3 A TRUE COPY OF THE COMMUNICATION OF THE THIRD RESPONDENT
DATED NIL
EXHIBIT P4 A TRUE COPY OF THE CHALAN RECEIPT ISSUED DATED 16-06-2014
RESPONDENT(S)' EXHIBITS: NIL
/TRUE COPY/
P.A.TO.JUDGE
sts
A.MUHAMED MUSTAQUE, J.
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WP(C).No.29218 of 2014-B.
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Dated this the 11th day of November, 2014.
J U D G M E N T
The property which is subject matter of a partition deed originally belonged to one Kunjipathumma. She was married to one Kunjalikutty Haji, and in the wedlock a son namely by Naha was born. Naha is no more. His children are signatories 5 to 8 in the partition karar. After the death of Kunjalikutty Haji, Kunjipathumma had another marriage with Hassankutty. The signatories to the partition karar 1 to 4 are the children born to Kunjipathumma in the marriage with Hassankutty. Thus it can be seen that signatories 1 to 4 are the children of Kunjipathumma and signatories 5 to 8 are the grand children of Kunjipathumma. They have presented a document for partition deed on executing a stamp paper of worth Rs.1000/- in terms of Entry 42 in Schedule of Stamp Act wherein it is stated that where a partition among the family members, the value is WP(C).No.29218/2014-B. 2 subject to maximum of Rs.1000/-. The Registrar registered the document on obtaining registration fee. However, for want of proper stamp duty the document was impounded. Explanation to Entry 42 in the Schedule for partition among family is as follows:
"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."
It seems the Registrar has entertained a doubt that great grandchildren and children cannot termed within the meaning of 'family' as contemplated under the Explanation. The persons referred in the Explanation has to be understood with reference to the persons referred therein and also with the permutation of such persons either in combination or individually. The right traced out by the persons for executing a partition deed is based on the right devolved from Kunjipathumma. Their right is referable for executing a partition deed is based on the nature of WP(C).No.29218/2014-B. 3 relationship derived from Kunjipathumma. Therefore, they are all form within the meaning of family as contemplated under the Explanation. The petitioner submits that by proceedings of Ext.P2, the document was impounded and the petitioner is compelled to pay excess registration fee. Since the amount was forced to pay by the petitioner under an illegal order consequent upon setting aside an illegal order, the petitioner is entitled to refund the amount paid towards registration fee. In view of the above, Ext.P2 is set aside. There shall be a direction to respondents 2 and 3 to refund the excess amount paid by the petitioner within two months and also to release the partition deed forthwith.
Writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, (JUDGE) Kvs/-
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