The short but interesting question that arises for consideration in this Original Petition under Article 226 of the Constitution relates to the stamp duty payable on a registered document executed by the co-owners of an immovable property. While the co-owners/executants insisted that the document in question was a deed of partition, the registering authority took the view that it was a release deed and as such stamp duty was payable under Article 48(b) of the Kerala Stamp Act 1959 (for short 'the Act').

2. The petitioners were co-owners of an immovable property having an extent of 1 acre 11 cents in Nellikkode Village of Kozhikode District. The petitioners decided to effect partition of the co-ownership property. Petitioner No.2 wanted his share to be separated. But he agreed that in lieu of his share being allotted to him in specie, he may be given the money equivalent of his share in the property. His share value was fixed at Rs.15 lakhs. Accordingly, a deed of partition was executed and registered on the 1st day of February, 1998, a true photo copy of which is on record as Ext.P4. A sum of Rs.5,000/- was paid towards stamp duty on the document.

3. A reference was made to the District Registrar (General), Kozhikode for adjudication on the question of sufficiency of stamp duty as provided under Section 31 of the Act. The District Registrar by his order dated March 31, 1998 held that the document was not a deed of partition as claimed by the petitioners, but on the contrary, it was a release deed as provided under Article 48(b) of the Act. According to the Registrar, respondent No.2, the document ought to have been drawn up on a stamp paper worth Rs.2,50,500/= (Rupees Two lakh Fifty Thousand and Five hundred). Therefore, the petitioners were directed to remit the balance amount of Rs.1,97,500/- in the Government Treasury. The above order is on record as Ext.P3.

4. In this Original Petition the prayer is for issuance of a writ of certiorari to quash Ext.P3 order. There is a further prayer that the respondents be directed to refund the amount of Rs.1,97,500/- remitted by the petitioners towards the alleged balance stamp duty.

5. In the counter affidavit, the District Registrar has stoutly defended his order. It is pointed out that has the document in question is not a deed of partition. From the recitals of the document itself, it is clear that no partition had been effected and that it would take place only on a later date. Petitioner No.2 was paid Rupees Fifteen Lakhs purporting to be his share in the immovable property. Therefore, it was apparent that petitioner No.2 had only relinquished or released his right in the co-ownership property. Thus, it is contended that the document ought to have been charged with the duty payable Article 43(b) of the Act.

6. Learned counsel for the petitioners submits that Ext.P3 partition deed was executed after it was decided by the co-owners to divide the property in severalty. It was also agreed among them that petitioner No.2 be given his share in the property in cash in lieu of the proportionate extent of land. By execution of the document, the status of the parties had changed. There was disruption of the status of co-ownership. By such disruption and division of the property, the co-owners had become individual sharers in the property. As such, the document had changed the whole character of the rights of the parties as co-owners. In other words, petitioner No.2 had ceased to be a co-owners. He had got his respective share in the property. Thus, in the above circumstances, it is puerile to contend that there was no partition of the co-ownership property.

7. In this context, it may be profitable to refer to two of the relevant clauses in the deed of partition.

"AND WHEREAS we have agreed to partition the schedule property allotting a separate share to number 2 among us, namely Kiran Dhirajlal and a common share to petitioners 1, 3, 4 and 5 among us, postponing division of their comm