Kerala High Court
V.Jayakumar vs The District Registrar(General) on 27 September, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
(C.R)
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. 8201 of 2017
PETITIONER/S:
V.JAYAKUMAR, AGED 53 YEARS
S/O. VENKITACHALA KOUNDER, VALLIYAMMAL ILLAM,
MALAMPUZHA ROAD, KAVILPAD AMSOM DESOM, PALAKAD I
VILLAGE, PALAKKAD TALUK AND DISTRICT NOW RESIDING AT
4/86, WINDING DRIVER, CHINNASWAMY STREET,
LLAKKIYAMPATTY PANCHAYATH, PIDAMANERI VELLA GOUNDER
PALAYAM VILLAGE, CHARMAPURI.P.O., DHARMAPURI TALUK
AND DISTRICT TAMILNADU
BY ADV. SRI.K.P.BALAGOPAL
RESPONDENT/S:
1 THE DISTRICT REGISTRAR(GENERAL),
DISTRICT REGISTRAR GENERAL'S OFFICE, PALAKKAD-678 001
2 THE SUB REGISTRAR
OFFICE OF THE SUB REGISTRAR OLAVAKKODE,
PALAKKAD- 678 002
OTHER PRESENT:
SR.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
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. 8201 of 2017
-2-
ALEXANDER THOMAS, J.
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W.P(C).No.8201 Of 2017
---------------------------------
Dated this the 27th day of September, 2018.
J U D G M E N T
The main prayers in this Writ Petition (Civil) are as follows:
"I) To issue a writ of certiorari to call for the records leading to Ext.P5 and quash the same.
II) To declare that the description of right to the property as 'Kanam' in Ext.P1 instead of 'jenmom' is only a clerical mistake which can be rectified by a rectification deed and the practitioner is entitled to get it registered. III) To issue a writ of mandamus or such other appropriate writ, order or direction to the respondents to register Ext.P3 rectification deed when the same is presented for registration without insisting for stamp duty of Rs.15,37,200/- and fine of Rs.3000/-."
2. Heard Sri.K.P.Balagopal, learned counsel for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents.
3. The petitioner herein is the son of Late Venkitachala Kounder and Valliyammal. The petitioner, his four brothers, his four sisters WP(C).No. 8201 of 2017 -3- and the wives and children of his deceased brothers, who are the legal representatives of late Venkitachala Kounder had effected partition of the properties of their father as per Ext.P-1 registered partition deed No.555/2016 dated 29.2.2016 of SRO, Olavakkode. It is further stated that the petitioner's father, late Venkitachala Kounder had originally obtained the said properties in question as per Ext.P-2 partition deed No.876/1971 of SRO Olavakkode. It is stated that when petitioners and others had executed Ext.P-1 partition deed, item No.2 of A schedule, item No.1 of B schedule, item No.2 of C schedule, item No.1 of D schedule, item No.1 of E schedule and items 1 & 2 of F schedule were mistakenly described as pertaining to "kanam" right instead of "jenmom" right. So, in view of the said mistake, the rights of the executants were described as "kanam" instead of "jenmom" in the registered partition deed. According to the petitioner, the mistake is only a clerical mistake WP(C).No. 8201 of 2017 -4- and when the mistake came to the notice of the petitioner and other executants, they were advised that same can be rectified by a executing a rectification deed/correction deed in order to describe those properties as "jenmom right"
instead of "kanam right". The petitioner and other executants were advised to approach the respondents to ascertain whether such a rectification deed could be executed and thereupon they had presented Ext.P-3 draft rectification deed dated 3.1.2017 before the respondents. The petitioner has also submitted Ext.P-4 petition before the District Registrar, Palakkad. The 1 st respondent has now issued the impugned Ext.P-5 proceedings dated 25.1.2017 stating that the above said attempt to alter the description as "jenmom right" would amount to material difference from the right claimed in the original deed and moreover 3 out of the 14 executants of Ext.P-1 are not seen proposed to be parties to Ext.P-3 etc., and accordingly, the 1st respondent has ordered WP(C).No. 8201 of 2017 -5- that Ext.P-3 cannot be treated as a rectification deed and that the stamp duty for conveyance and registration fee for conveyance should be remitted by the petitioner and other executants for the purpose of registration of Ext.P-3. It is this order at Ext.P-5 that is under challenge in this proceedings.
4. The 1st respondent has filed a counter affidavit dated 30.5.2017. Therein the very same objections raised in the impugned Ext.P-5 proceedings are reiterated. It is stated that the change in the description of the property as "jenmom right" instead of "kanam right" would amount to material change and that therefore the deed in question could be registered only subject to payment of stamp duty and registration fee payable for a conveyance deed. It is now well established that the substance and essence of a deed of rectification is one which does not create, transfer, limit, extend, extinguish or record any right or liability, compared to the WP(C).No. 8201 of 2017 -6- previous deed and what is sought is only correction of the mistakes in the previous deed, then the same could be registered as a rectification/correction deed, subject to payment of the prescribed fee. The Kerala Stamp Act, 1956 and the schedule thereto does not specifically mention about the rectification/correction deed. However, clause 1(s) of table of registration fee prescribed under the Registration Act, 1908 has clearly stipulates that registration fee for a deed of rectification which does not create, transfer, limit, extend, extinguish or record any right or liability shall be the same as the fee payable on the registered document subject to a maximum of Rs.500/-.
5. In the instant case, it is the specific case of the petitioner that description of some of the properties covered by Ext.P-1 as "kanam right"
was a mistake and that as a matter of fact, the rights pertaining to those properties are "jenmom right". Ext.P-2 is the prior title deed of the WP(C).No. 8201 of 2017 -7- predecessor-in-interest of the petitioner and other executants. A schedule of Ext.P-2 prior title deed would clearly point out that the abovesaid properties in question are having "jenmom right" and not "kanam right". The respondents have not disputed the said factual assertion made out by the petitioner. The respondents have no case that if those properties were actually described as "jenmom right" in Ext.P-1 deed, the same would have required higher stamp duty and registration fee. Further, the respondents themselves have lawfully granted the applicable lower stamp duty for a partition deed as per Article 42 of the schedule attached to the Kerala Stamp Act at the time of registration of Ext.P-1 partition deed dated 29.2.2016. Since there is no dispute that higher stamp duty should have been paid at the time of registration of Ext.P-1 partition deed if the properties in question have been correctly shown as "jenmom right", there is no question of loss of revenue to WP(C).No. 8201 of 2017 -8- the State. Therefore, going by the undisputed facts, it is crystal clear that the sum and essence of the transaction in question which is sought to be registered as proposed in Ext.P-3 deed and as mentioned in Ext.P-4 petition is a rectification/correction deed as envisaged in clause 1(s) of the table of fees prescribed under the Registration Act, 1908. It is clear from the prior title deed as per Ext.P-2 document No.876/1971 that the properties in question are pertaining to "jenmom rights" and not "kanam rights" and only those pre-existing rights conferred as per the prior title deed alone are sought to be reflected in the proposed rectification deed. The properties in question were wrongly described as pertaining to "kanam right" and not as "jenmom right". Therefore, no new right, title or interest is sought to be conferred or conveyed to the petitioner and other executants of the proposed rectification deed, through its registration. The deed in question WP(C).No. 8201 of 2017 -9- does not create, transfer, limit, extend, extinguish or record any right or liability as the rights are conveyed only in terms of the prior title deeds of the predecessor-in-interest as per Ext.P-2 and it only effects correction of the above mistakes. Hence, the impugned stand of the respondents in Ext.P-5 that proposed deed in question would amount to material change and that therefore it require higher stamp duty and registration fee, etc., is palpably incorrect, wrong and illegal. In that view of the matter, the impugned Ext.P-5 order will stand set aside.
6. It is now submitted by Sri.K.P.Balagopal, learned counsel for the petitioner, that all the 14 original executants of Ext.P-1 deed would also be the executants of the rectification deed to be presented for registration.
7. It is for the petitioner and other executants concerned to present the rectification deed for rectification of the abovesaid mistake in Ext.P-1 partition deed before the 2nd WP(C).No. 8201 of 2017 -10- respondent, who will then register the name, if it is otherwise in order and subject to payment of the fee prescribed as per clause 1(s) of the Table of fees appended to the Registration Act.
The petitioner may produce a certified copy of this judgment before the 2nd respondent at the time of presentation of the rectification deed.
With these observations and directions, the above Writ Petition (Civil) will stand disposed.
Sd/-
ALEXANDER THOMAS, JUDGE.
Bkn/-
WP(C).No. 8201 of 2017-11-
APPENDIX PETITIONER'S/S EXHIBITS:
P1 TRUE COPY OF THE DOCUMENT NO.555/2016 OF SUB REGISTRAR'S OFFICE, OLAVAKKODE. P2 TRUE COPY OF THE DOCUMENT NO.876/1971 OF SUB REGISTRAR'S OFFICE, OLAVAKKODE P3 TRUE COPY OF THE RECTIFICATION DEED DATED 3.1.2017 SUBMITTED FOR REGISTRATATION P4 TRUE COPY OF THE PETITION PREFERRED BEFORE THE DISTRICT REGISTRAR(GENERAL) PALAKKAD P5 TRUE COPY OF THE PROCEEDINGS BEFORE THE DISTRICT REGISTRAR, PALAKKAD P6 TRUE COPY OF THE ORDER DATED 8.4.2015 IN LRA (A) 3-6252/15 OF LAND REVENUE COMMISSION