The interesting dispute which arises for resolution in this Writ Petition filed under Art. 227 of the Constitution of India is as to whether Ext.P1 instrument dated 5-11-1997 where under one of the three partners of a registered part ship firm retired after receiving a sum of Rs.1,00,000/- (Rupees one lakh only) is a mere agreement chargeable to stamp duty under Art. 5 (c) of the schedule to the Kerala stamp Act, 1959 or whether it is a release deed chargeable to stamp duty under Art. 48 (b) of the Schedule to the said Act.

2. The stamp duty actually paid on Ext.P1 instrument is Rs.200/-. If it is a mere agreement falling under Art. 5 (c) then the stamp duty payable for such agreement at the relevant time was Rs.50/- and consequently, the instrument is properly stamped. If on the other hand, the instrument is a release falling under Art.48 (b), then the stamp duty payable thereon would be the same as in the case of a conveyance falling under Articles 21 or 22, as the case may be. The stamp duty payable for a release deed for an amount of Rs.1,00,000/- (Rupees one lakh) as set forth in the instrument, at the relevant time was Rs.6,000/-, the rate of duty being 6%.

3. The petitioner in this writ petition is the plaintiff in O.S.5/1988 on the file of the Sub Court, Thodupuzha. The above suit is jointly tried along with O.S.79/2003. The prayer in O.S.5/98 is for a declaration that the amendment deed dated 5-11-1997 (Ext. P1 herein) amending the original partnership deed dated 30-3-1991 is null and void and for consequential injunction restraining defendants 1 and 2 (respondents 1 and 2 herein) from interfering with the management of the business of the firm on the basis of the amendment deed dated 5-11-1997. The prayer in O.S.79/03 instituted by the petitioner and the 3rd respondent herein is for a perpetual injunction restringing the defendant therein (the first respondent herein) from doing anything against the terms and conditions in the partnership deed dated 4-9-1995. Ext.P1 produced in this writ Petition is alleged to be the said deed of amendment. When the said instrument was sought to be marked through D.W.1, the witness for the defendants, the marking of the document was objected to by the plaintiff on the ground that it is an insufficiently stamped instrument chargeable to stamp duty as a release deed under Article 48 (b) read with Art. 21 of the Kerala Stamp Act, 1959 and that the instrument cannot be admitted in evidence without that payment of stamp duty and penalty as provided under the proviso to Sec.34 of the Kerala Stamp Act. The said objection was overruled by the learned subordinate judge who as per Ext.P2 order dated 6-9-2005 held that the instrument is chargeable to stamp duty under Art. 5(c) of the Kerala Stamp Act and therefore it is not an insufficiently stamped instrument and accordingly held that the said instrument produced by the defendants will be admitted in evidence and will be marked through D.W.1. It is said order which is assailed in this Writ Petition.

4. I heard the learned counsel for the petitioner as well as the learned counsel for the contesting respondents.

5. Adv. Sri. Kuriachan, the learned counsel appearing for the contesting respondents raised a preliminary objection as to the maintainability of this Writ Petition contending inter-alia that in a case where an instrument has been admitted in evidence such admission of the instrument shall not, except as provided in sec.59 of the Stamp Kerala Act, be called in question at any stage of the suit or other proceeding on the ground that the instrument has not been duty stamped. This, accordingly to the learned counsel is the mandate of the Kerala Stamp Act and if the case of the petitioner/plaintiff is that the instrument is liable to stamp duty at a higher rate as contended by him, his remedy is to move the appellate court under Sec.59 of the stamp Act and even in such a proceeding under Sec.59 of the Act, while it is permissible to t