T.R. Ramachandran Nair, J.

1. The true stamp duty payable on a partition deed claimed to be executed by the family members, is the issue raised in this writ petition. The executants are the petitioners herein. The first petitioner is the mother of late Shri Mohamed Asharaf and fourth petitioner is his widow. Petitioners 2 and 3 are the children of deceased Asharaf and the fourth petitioner. Thus, the first petitioner is the grant mother of petitioners 2 and 3. It is pointed out that the deceased died intestate and all the petitioners alone are the legal heirs. The copy of the partition deed is produced as Ext.P1. The said partition deed was registered by the Sub Registrar, but was impounded after collecting 2% of the market value of the property and on a representation by the petitioners, it was informed by the third respondent that only the fee prescribed under Schedule 42(i) is liable to be remitted for a partition deed. The petitioners claimed refund of the amount collected, by pointing out that only Rs.1,000/-be paid as stamp duty and the registration fee is only 1%. In reply, the District Registrar informed them by Ext.P5 that the executants of the partition deed will not come within the term 'family' under Article 42(i) and therefore the document can be treated only as one under Article 42(ii) for stamp duty. Therefore, a total amount of Rs.4,10,000/-will have to be remitted towards stamp duty and penalty.

2. Heard learned counsel for the petitioners and learned Government Pleader.

3. Learned counsel for the petitioners submitted that the deceased has left the petitioners as his legal heirs. All the executants will come within the definition of 'family' under Explanation to Schedule 42(i) of the Act. The "mother" and "father" are specifically included in the Explanation and therefore the first petitioner is covered by the main body of the Explanation and it is submitted that the plea raised by the respondents has no merit.

4. In the counter affidavit filed by the first respondent it is contended that going by the Explanation, 'family' means father, mother, husband, wife, son, daughter, grand children, brother, sister and legal heirs of deceased children and grand mother is not included therein. Therefore, Schedule 42 (i) is not attracted. Learned Government Pleader submitted that the view taken in Ext.P5 is therefore proper.

5. The definition of "instrument of partition" under Section 2(k) of the Kerala Stamp Act is the following:

"(k) "Instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severality, and includes also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an arbitrator directing a partition."

Schedule 42(i) and the Explanation as amended now, reads as follows:

"(i) Where the partition is among all or some of the family members: "One rupee for every rupees 100 or part thereof of the fair value of the land and the value of all the properties of their separated share or shares or the value of all the share or shares of all properties, whichever is higher, subject to a maximum of Rupees 1000.

Explanation: Family means father, mother, husband, wife, son, daughter, grand children, brother, sister and legal heirs of the deceased children, if any, as the case may be."

Therefore, where the partition is among all or some of the family members who are covered by the Explanation, the maximum amount of Rs.1,000/-alone need be paid.

6. The only question is whether the first petitioner will be covered by the Explanation. The unamended Explanation was the following:

"Family means husband, wife, children and the legal heirs of the deceased children if any, as the case may be."

Father and mother were included along with grand children, brother and sister by an amendment by Act 16 of 2011. Previously, the term 'family' only included husband, wife, children and the legal heirs of the deceased ch