Kerala High Court
M.M. Abdul Basheer vs The District Registrar (General) on 25 February, 2013
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 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935
WP(C).No. 18212 of 2013 (B)
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PETITIONER(S):
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M.M. ABDUL BASHEER,
S/O.LATE M.S. MUHAMMED, MUCHETH HOUSE,
KARUMALOOR, WEST VELIYATHUNADU P.O.,
ERNAKULAM DISTRICT.
BY ADV. SRI.M.M. SAIDU MUHAMMED.
RESPONDENT(S):
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1. THE DISTRICT REGISTRAR (GENERAL),
OFFICE OF THE DISTRICT REGISTRAR GENERAL,
ERNAKULAM, PIN -682 016.
2. THE SUB REGISTRAR,
OFFICE OF THE SUB REGISTRAR,
ALANGAD, PARAVOOR TALUK,
ERNAKULAM DISTRICT- 683 511.
BY GOVT. PLEADER SMT.K.T. LILLY.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 01-10-2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 18212 of 2013 (B)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE PHOTOSTAT COPY OF DOCUMENT NO. 189/11 OF
SRO ALANGAD.
EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE PROCEEDINGS DATED 25/02/2013
OF THE ADDITIONAL TAHSILDAR PARAVOOR.
EXHIBIT P3 TRUE PHOTOSTAT COPY OF CORRECTION DEED
DATED 27/04/2013.
EXHIBIT P4 TRUE PHOTOSTAT COPY OF COMMUNICATION DATED 03/07/2013
OF THE 1ST RESPONDENT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
P.R. RAMACHANDRA MENON, J.
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W.P.(C). No. 18212 of 2013
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Dated this the 1st day of October, 2013
JUDGMENT
Ext. P4 order passed by the 1st respondent under Section 31
(b) of the Kerala Stamp Act mulcting a liability of 1,40,000/- (Rupees one lakh forty thousand) to be satisfied by the petitioner in respect of Ext.P3 Rectification Deed sought to be executed is under challenge in this writ petition.
2. The sequence of events is as follows:
The petitioner along with his wife, sister-in-law and wife's aunt purchased 37.25 Ares of land comprised in Sy.No. 339 of Kadungalloor Village as per Ext.P1 title deed. As a matter of fact, the property is situated in different Sub Division numbers of the Sy.No 339(339/8 A1, 8A2, 8A3, 8A4, 8B and 9A) and the entire property is lying as a contiguous plot. The total sale consideration is shown as 28,00,000/- (Rupees twenty eight lakhs) and 1,96,000/-(Rupees one lakh ninety six thousand) has been remitted as stamp duty at the time of registration.
Pursuant to registration, necessary change was made under the W.P.C. No.18212 of 2013 -2- Transfer of Registry Rules, effecting mutation and 'Thandapper' Account No. 27772 was opened in the name of the petitioner and others concerned.
3. While so, application for mutation of neighbouring property came up before the Revenue authorities. Pursuant to the said application, an inspection was held by the Taluk Surveyor and other authorities, who reported that, there was a mistake in description in the earlier title deed belonging to the predecessor-in-interest of the property and that, the same mistake was carried forward as included in Ext.P1 document as well, whereby an extent of 9.30 Ares of land was shown as included in Sy.No. 339/9A. Inspection by the concerned authorities revealed that, out of the said 9.30 Ares, an extent of 7.28 Ares was wrongly entered in the 'Thandapper' account of the Predecessor-in-interest of the petitioner and in turn, in the name of the petitioner, while 2.02 Ares were shown as with the neighbours. The factual position remains that the neighbours were actually having possession over the entire extent of 9.30 Ares and there is no dispute with regard to this aspect in any W.P.C. No.18212 of 2013 -3- manner. In respect of the extent of 7.28 Ares wrongly included in the Thandapper account of the petitioner, an extent of 1.54 Ares was included in the 'Puramboke' and the petitioner was actually having an extent of only 5.74 Ares.
4. It was in the above circumstance, that Ext.P2 proceedings were issued by the Additional Tahsildar, wherein, it was clearly stipulated under point No.3 of the concluding paragraph, that the petitioner could effect a 'correction deed/rectification deed', showing the actual extent only as 5.74 Ares as included in the concerned Survey No. which was 339/7 (as against 339/9A) and that as and when such a 'rectification deed', is produced, necessary steps will be taken to effect mutation to the requisite extent. It was accordingly, that the petitioner prepared Ext.P3 'rectification deed' and the same was taken for registration before the 2nd respondent, who raised some objection, which made the petitioner to take up the matter before the 1st respondent as provided under the relevant provisions of the Kerala Stamp Act. After considering the matter, the 1st respondent passed Ext.P4 order, whereby it is stated that, there W.P.C. No.18212 of 2013 -4- is substantial change with regard to the description of the property and as such, the petitioner was liable to satisfy the stamp duty at the rate of 5% as provided under Article 21 to the 1st Schedule of the Kerala Stamp Act, thus mulcting liability to an extent of 1.4 lakhs, which in turn is under challenge in this writ petition.
5. Heard the learned Government Pleader as well, who sought to justify the stand taken by the respondents with reference to the statement filed on behalf of the respondents. Reference is also made to the reduction of the extent of land involved and 'material change', which according to the respondents is not one which can be rectified as per the 'rectification deed'. Reliance is also placed on Order '250' of the Kerala Registration Manual (extracted in paragraph '3'), which reads as follows:
"A deed of Rectification which by itself creates transfers, extents, extinguishes or records rights shall, for purposes of stamp be treated as taxable under the item of the schedule under which it falls. In such cases when the consideration for the transaction is expressed the stamp duty as well as the registration W.P.C. No.18212 of 2013 -5- fee shall be levied on the amount of the consideration so expressed. Where no consideration is expressed, thee value of the right dealt with as shown in the document, shall be taken. If however neither the consideration nor the value is expressed, the value and fee to be levied, shall be governed by Article 1(i) of the Kerala Table of Fees"
It is contended that, by virtue of the definition of the term "instrument" under Section 2(j) of the Kerala Stamp Act, the petitioner cannot evade the liability and as such, the amount stipulated in Ext.P4 is liable to be satisfied, so as to have Ext.P3 to be registered, submits the learned Government Pleader.
6. After hearing both the sides and after going through the materials on record, this Court finds that, the execution of Ext.P3 is necessitated because of the specific observations made by the Revenue authorities vide Ext.P2, with reference to the mistake crept in the relevant records including the entries in the title deed of predecessor-in-interest and also in Ext.P1 title deed of the petitioner. The fact remains, that mutation of the property belonging to the petitioner was also effected by the Revenue authorities, pursuant to Ext.P1. It remains an undisputed fact W.P.C. No.18212 of 2013 -6- that, pursuant to the entries as per Ext.P1, the petitioner effected payment of a total consideration of 28,00,000/- and satisfied the stamp duty to an extent of 1.96 lakhs.
7. By virtue of the course and events leading to Ext.P2, the actual extent has now been 'reduced' and this by itself has not created any right upon the petitioner; which otherwise has excluded the stamp duty payable to the Government. There is no exchange of any property in between and no consideration is paid by the parties to Ext.P3. The mistake with regard to the Sub Division No., which was originally shown as '9A' is also sought to be corrected as '7'. The very purpose of the deed is for effecting necessary correction in respect of the inadvertent mistake; which is permissible, in so far as the same by itself does not create any right with regard to the property involved.
8. In the facts and circumstances, this Court finds that the petitioner is entitled to succeed. The State is not supposed to have any 'undue advantage' compelling the petitioner to make any double payment of stamp duty, in respect of the very same cause of action, more so, when the authorities of the State W.P.C. No.18212 of 2013 -7- (Revenue authorities) have conceded in the opening paragraph of Ext.P2 itself as to the mistake committed by them as well, which necessitated the subsequent correction.
9. Ext.P4 impugned in the writ petition is set aside. The 2nd respondent is directed to register the original of Ext.P3 document/rectification deed, as and when the same is presented, without insisting for satisfaction of any additional Stamp Duty, but for satisfying other legal requirements, if any, under the relevant provisions of law. In view of the change resulted, it is for the petitioner to effect necessary correction with regard to the boundaries as well, in the schedule to Ext.P3, and submit the same for consideration.
The writ petition is allowed to the said extent. No cost.
P.R. RAMACHANDRA MENON, JUDGE.
kp/-