IMPORTANT POINTS
The amended provisions of Sec.2(fb) of the definition of family and clause.(a) of Art.42 of the schedule to the Act, which envisages partition among all or any of the members of the family and the legal heirs of the deceased family member, if any, etc. now effective from 1.4.2018 are applicable to the instant case as Ext.P-4 partition deed is executed on 13.8.2018-Amended provisions will permit partition deed between parties like the 1st petitioner & 2nd petitioner or between 1st petitioner, 2nd petitioner & R-4 or between the 1st petitioner & R-4, as the said parties are combinations or permutations of siblings, siblings & LR of their deceased sibling or executant & LR of deceased sister of the executant, as the case may be, which will come within the ambit of the amended clause (a) of Art.42.

Alexander Thomas, J.

1. The petitioners are aggrieved by the impugned action on the part of the 3rd respondent- Sub Registrar, SRO, Thiruvalla, in refusing to register Ext.P-4 presented by the petitioners as a partition deed, on the ground that the said deed cannot be construed as an instrument of partition as per Sec.2(k) of the Kerala Stamp Act, 1959 as the property covered by Ext.P-4 was already the subject matter of the partition in Ext.P-1 registered partition deed dated 30.07.2009 duly executed by the co-owners concerned. 2. The prayers in this Writ Petition (Civil)are as follows:

"(i) to issue a writ of certiorari and quash Exhibit P6 as highly illegal and arbitrary.

(ii) to issue a writ of mandamus directing the 3rd respondent herein to register Exhibit P4 partition deed within a time frame to fixed by this Hon'ble Court.

(iii) to issue a declaration that the Exhibit P4 partition deed in an instrument of partition whereby the undivided shares of the petitioners are partitioned since the 2nd petitioner has not executed or partitioned her share in the property as per Exhibit P1 partition deed. (iv) to declaration that Exhibit P4 partition deed is an instrument of partition as defined under Section 2(k) of the Kerala Stamp Act, 1959.

(v) to pass such other writ, order or direction which this Hon'ble court may deem fit and proper in the facts and circumstances of this case."

3. Heard Sri.S.Ranjit, learned counsel appearing for the petitioners, Smt.A.C.Vidhya, learned Government Pleader appearing for the official respondents 1 to 3 and Sri.K.S.Rockey, learned counsel appearing for the additional respondent No.4.

4. It is stated that one Sri.C.G.Chandy, the father of the petitioners had purchased an extent of 102 cents of property lying in old survey No.194/6/A (presently in re-survey No.183/1 in block No.7), in Kavumbhagom village in Thiruvalla Taluk, Pathanamthitta Revenue District as per sale deed No.3543/1963 of SRO, Thiruvalla. It is stated that Sri.C.G.Chandy had died intestate on 07.08.1978 and the said property had devolved on his legal heirs viz., his wife (Thankamma Chandy) and their five children (one son and four daughters), including the two petitioners herein. The five children of C.G.Chandy and Thankamma Chandy are 1.Mariamma Varghese, 2.Saley Kurian, 3.Sunu C.Chandy, 4.Laly Abraham (2nd petitioner herein) and 5.Biju C.Alex (1st petitioner). Sunu C.Chandy had died on 05.03.2009 and upon her death, her share of the property devolved upon her husband, Jose Eapen and two children (sons) viz., Tony Jose and Tittu Eapen Jose (R4 herein). In the year 2009, the 1st petitioner herein (Biju C.Alex)and along with Thankamma Chandy (mother) and two out of his 4 sisters, viz., Mariamma Varghese and Saley Kurian and brother-in-law, Jose Eapen (husband of Sunu C.Chandy who was by then deceased) had jointly executed Ext.P-1 partition deed No.1863/2009 dated 30.07.2009 of SRO, Thiruvalla, among themselves with regard to their respective shares, out of the above mentioned property of late C.G.Chandy, which stood undivided. At the time of execution of Ext.P-1 registered partition deed dated 30.07.2009, the 2nd petitioner (Laly Abraham) and the two children of late Sunu C.Chandy, viz., Tony Jose and Tittu Eapen Jose (R4), had not joined the execution of Ext.P-1 partition deed and hence they thus stood excluded from the said partition process. As per Ext.P-1 partition deed, all the sharers therein except the mother (Thankamma Chandy), had relinquished the respective undivided shares of the property in favour of the 1st petitioner herein. Though the mother’s share was divided and separated as re-scheduled to Ext.P-1, the same also stood subject to the undivided shares of the abovesaid three persons, who are excluded in Ext.P-1 partition deed. So, it is clear that the abovesaid three excluded persons (Laly Abraham-2nd petitio