1. The main question that arises for consideration in this writ proceedings is as to the correctness or otherwise of the contention of the petitioner that the dictum laid down by the Full Bench of this Court in the reference order dated 16.10.2017 in the case Abdul Muneer & Anr. v. Sub Registrar, Tirur, reported in 2018 (1) KLT 238 (FB), is not applicable to the instant case in view of the observations in para 25 of the Full Bench direction.

2. The prayers in this Writ Petition are as follows:

“(i) Call for the entire records leading to Exhibit P1 to P3 and issue a writ of certiorari or any other appropriate writ, order or direction and thereby quash the same.

(ii) Declare that the decision of the Full Bench dated 16.10.2017 reported as 2018 (1) KHC 207 (FB) is not applicable in this case on hand.

(iii) Pass such other orders deemed fit in the facts and circumstances of the case.

(iv) Grant the petitioner the costs of the Writ Petition (Civil).”

3. Sri.K.Shri Hari Rao, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents were heard in extenso in earlier occasions and the case is taken today for judgment.

4. One Sri.Koggu Naik had 5 children (2 sons and 3 daughters), 2 sons being the petitioner (Kunhappa Naik) and Govinda Naik, and the 3 daughters being, Saraswathi, Parvathy and Chomu. Petitioner's mother had pre-deceased the father and the father had later died. One of the sisters, Chomu, had also died and she has only one issue (viz, Ramachandra Naik). So after the death of the father (Koggu Naik), his legal heirs are;

(i) The petitioner (Kunhappa Naik)

(ii) Govinda Naik,

(iii) Saraswathy

(iv) Parvathy

(v) Ramachandra Naik (S/o. Late Chomu)

According to the petitioner, the above said legal heirs had decided to partition their properties of late Koggu Naik and thereupon they have executed partition deed dated 29.3.2017, which was presented for registration in the office of the 3rd respondent- S.R.O., Badiyadka, Kasaragod District for registration on April, 2017, which was numbered as P-1/2017 (Partition Deed No.1351/17/1 of S.R.O., Badiyadka). The petitioner and other executants of the said partition deed claimed that 5 executants thereto would constitute the definition of “family” as understood in the Explanation appended to Article 42 of the Schedule to the Kerala Stamp Act, 1959, and that the registration of the said partition deed would deserve lower stamp duty as per the provisions thereof. The 3rd respondent-SRO had taken the provisional view that the said executants will not constitute “family” as understood in the Explanation appended to under Article 42, more particularly because the 5th executant (Ramachandra Naik) is not a sibling of the other executants and is only a legal representative/son of the deceased sister, Chomu and in view of that aspect, the 3rd respondent had referred the matter to the 2nd respondent in terms of Sec.37 of the Kerala Stamp Act. The 2nd respondent in turn has decided the matter as per the impugned Ext.P-1 order dated 9.5.2017 under Sec.39 of the Kerala Stamp Act, wherein he has taken the view that the executants of the said partition deed will not constitute “family” as understood in the above provision and therefore, it does not deserve lower stamp duty as envisaged in Article 42(a) and that the higher stamp duty in terms of clause (b) of Article 42 is payable. Accordingly, it was directed by the 2nd respondent-District Registrar as per the impugned Ext.P-1 proceedings that the executants concerned will have to pay 6% stamp duty i.e,.Rs.1,03,830/- and Registration fee @ 2% coming to Rs.34,610/- and that the balance stamp duty payable is Rs.1,02,830/- and the balance registration fee payable is Rs.17,305/- and that penalty of Rs.300/- should also be paid. Thereafter, the 3rd respondent had issued Ext.P-2 notice dated 19.5.2017 directing the petitioner to remit the above said amounts as ordered in Ext.P-1. A