IMPORTANT POINTS
Considerations of common lineage, devolution of property etc., are all irrelevant for this purpose and all that becomes relevant for the purpose of Article 42(1) of the Schedule to Act, 1959, is the relationship of the co-owners at the time of execution and registration of the partition deed. If the co-owners are several in number, then the benefit under this Article would flow only if each of such co-owner is related at least to one other through the specified category of relationships as is prescribed in the Explanation to Article 42 of the Schedule to Act, 1959. Anyhow, after the impugned judgment, Article 42 has been substituted by the Kerala Finance Act, 2018 (w.e.f. 01/04/2018),

JUDGMENT :

S. Manikumar, J.

Instant writ appeal has been filed by appellant/writ petitioner, being aggrieved by judgment dated 19.09.2019 passed in W.P.(C) No.21218 of 2019.

2. Short facts leading to the appeal are that,-appellant/writ petitioner is the son of Komukkutty. Komukkutty had children in two wives. The property sought to be partitioned is belonging to Komukkutty. When the appellant and his other siblings wanted to effect partition of the properties left behind by their father, the respondent/Sub Registrar, Tirur Taluk refused to register the partition deed presented by the appellant. Moreover, treating that the descendants through two wives cannot constitute a family, the Sub Registrar insisted payment of higher stamp duty. Being aggrieved, appellant/writ petitioner approached the writ court by filing W.P.(C) No.21218 of 2019. Writ court, by the impugned judgment, dismissed the writ petition holding that appellant is not entitled for concessional stamp duty. Relevant portion of the impugned judgment reads as under:

“2. Learned counsel for the petitioner, placing reliance upon the Full Bench decision of this Court in Abdul Muneer v. Sub Registrar [2018 (1) KLT 238 (F.B)], argued that if the co-owners are several in number and at least some among them related to a specified category, they are entitled to reduced stamp duty. Learned counsel referred to particularly the observation of the Full Bench in paragraph 25, which reads thus:

“25. ..... If the co-owners are several in number, then the benefit under this Article would flow only if each of such co-owner is related at least to one other through the specified category of relationships as is prescribed in the Explanation to Art.42”.

3. After referring to the Full Bench decision, this Court in W.P.(C) No.6485 of 2018, in similar set of facts, has held as follows:

“3. The Full Bench, in fact, after adverting to two Division Bench judgments earlier came to the opinion that all that becomes relevant for the purpose of Article 42(1) of the Act is a relationship of the co-owners at the time of execution and registration of the partition deed and if they are co-owners at least one of the others in the enumerated categories of relationship described in the explanation, they would become deserving for low stamp duty under sub clause(1) of the said Article.”

4. It is to be noted that all categories as referred in the family would stand in relation to each other as referred in the explanation must come within the fold of the family. Two branches of different family come together to effect partition of property inherited from a common lineage, that cannot be treated a partition within a family. Though the right of the property traceable to common lineage as far as the parties are concerned, they are distinct family as they are having separate lineage through two wives of late K.M.Muhammedkutty. That be the position, the petitioner cannot claim concessional stamp duty payable under sub clause (1) of Article 42. Therefore, the Registrar is justified in demanding higher stamp duty from the petitioner. The writ petition, therefore, is dismissed. No costs”.

In view of the judgment as above, I find the petitioner is not entitled for concessional stamp duty. Therefore, I hold that the Sub Registrar is justified in demanding higher stamp duty for partition deed.

This writ petition is dismissed.”

3. Being aggrieved by the above judgment, instant writ appeal is filed contending inter alia that, the writ court failed to consider second limb of Article 42(a) of the Schedule to Kerala Stamp Act, 1959 by which the benefit is given to the instrument of partition among the legal heirs of deceased family members as well; that as per Exhibit-P1 partition deed, the properties are partitioned among the children of deceased Komukkutty, the father of the appellant, and the properties are not set apart to any other persons. It is further contended that the second wife of deceased Komukkutty has joined the docume