Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 521

IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V.KUNHIKRISHNAN, J.
MOHANAN, S/O LATE VELAYUDHAN – Appellant
Versus
THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, KODALY – Respondent
WP(C) NO. 4568 OF 2021
Decided on : 12-07-2021

Advocates:
Advocate Appeared:
For the Appellant : T.N.MANOJ
For the Respondent: SMT.MABLE C.KURIAN

Point of law : That it is clear from the definition of a family provided in Sec.2(fb) of the Act that it would also take in wife, son, daughter, brother and sister when "the legal heirs of the deceased children” are there in the Explanation, and even then held that, the parties to that case will not come within the purview of Sl.No. 42(1) and they are not entitled to the lower stamp duty

Headnote:
Kerala Stamp Act – Sections 2, 31 – Deed of partition – Respondent refused to accept Ext.P2 partition deed stating that parties to deed of partition do not come within definition of word ‘family’ as defined under Sec.2(fb) of Kerala Stamp Act and therefore, stamp duty payable is not Rs.1,000/-. – Petitioner on behalf of other co-owners approached office of 3rd respondent in accordance with Sec.31 of Stamp Act, requesting to adjudicate proper stamp duty payable for deed of partition. – 3rd respondent relegated parties to appear before 2nd respondent for adjudication. – Ext.P4 is request made by petitioner before 2nd respondent. – 2nd respondent, after adjudication, passed Ext.P5 order in which, 2nd respondent also concluded that executants of Ext.P2 partition deed will not come within definition of Sec.2(fb) of Stamp Act and therefore, petitioner and other co-owners should pay stamp duty as per serial No.42(b) of Schedule attached to Kerala Stamp Act. – Aggrieved by Ext.P5, this writ petition is filed.
Finding of the court:
It is clear that executants of Ext. P2 partition deed are children of Kurumba and children of Velayudhan. If partition deed was between Kurumba and Thalary, Sl.No.42(a) may be applicable – Here is a case where children of Kurumba and grandchildren of Thalary are executants in Ext.P2. In such circumstances, point is covered by decision of Full Bench – Court is not in a position to accept contention of petitioner. – Partition is not between Kurumba and Thalary, who are children of Vallon and Kurumba – If that is case, benefit of Sl.No. 42(a) of Stamp Act is available. But, here is a case where executants in Ext.P2 are grandchildren of Vallon and Kurumba and great grandchildren of above couple – Pratheesh, Pratheeja and Vally are legal heirs of Velayudhan and Velayudhan is son of Thalary and Thalary is daughter of Vallon and Kurumba. Mohanan, Prasad, Sarada, Lalitha, Padmini and Rajitha are children of Kurumba and Kurumba is daughter of Vallon and Kurumba. – Court is not in a position to accept contention of petitioner – 2nd respondent is perfectly justified in issuing Ext.P5 order. – Court observed that it is clear from definition of a family provided in Sec.2(fb) of Act that it would also take in wife, son, daughter, brother and sister – But, facts in present writ petition are entirely different – They will not come within definition of family defined in Sec.2(fb) of Stamp Act, because executants are grandchildren and great grandchildren through Kurumba and Thalary – Stand taken by 2nd respondent in Ext.P5 is perfectly, justifiable – There is nothing to interfere with Ext.P5 order. –
Result : Writ Petition Dismissed

JUDGMENT :

The petitioner is one of the co-owners of the property held jointly by the legal heirs and successors in interest of late Sri.Vallon and his wife, Kurumba. The property originally belonged to Erannoor Mana. Vallon held the property as 'verum pattamdar' under Erannoor Mana (illom). The right, title, and interest of the landlords, namely Erannoor Mana (illom) was later assigned in favour of the legal heirs and successors in interest of the original 'pattamdhar', namely, Vallon by virtue of the purchase certificate issued by the Special Tahsildar, Thrissur dated 24.5.2013. Ext.P1 is the purchase certificate.

2. Vallon married Kurumba. Two children were born out of the said wedlock namely, Kurumba and Thalary. Kurumba got married to Puthenchira Velayudhan and Thalary got married to Koran. Kurumba and Velayudhan had six children, namely Mohanan, Prasad, Sarada, Lalitha, Padmini, and Rajitha. Thalary and Koran had one son namely, Velayudhan. Velayudhan married Vally. They had two children, namely, Pratheesh and Pratheeja.

3. Vallon and his wife Kurumba died intestate. Similarly, Kurumba, Velayudhan and Thalary died intestate leaving behind their wife, children, and grandchildren to succeed to the estate left behind by their great grandfather. Since the properties were held in common by the parties, who are the co-owners, they decided to effect partition of the extent covered by Ext.P1 purchase certificate. Accordingly, a deed of partition was prepared in a stamp paper, worth Rs.1,000/-as provided under Sl. No. 42(a) of the Schedule attached to the Kerala Stamp Act, 1959 which prescribes the payment of the stamp duty to the tune of Rs.1,000/-. According to the petitioner, the partition is among the members of the family and legal heirs of the deceased family members. Ext.P2 is the partition deed dated 19.1.2021. The petitioner in this writ petition is one of the parties in the above partition deed. The petitioner produced a family tree along with the writ petition as Ext.P3, which is extracted hereunder :

FAMILY TREE OF THE CO-OWNERS

Vallon & Kurumba

(2 children)

Kurumba (died)

(died) Thalary

Mohanan

Prasad

Sarada

Lalitha

Padmini

Rajitha

(6 children)

Velayudhan (son) (died)

Pratheesh (son)

Pratheeja (daughter)

Vally (wife)

4. When Ext.P2 partition deed was produced for registration, the 1st respondent refused to accept Ext.P2 partition deed stating that the parties to the deed of partition do not come within the definition of the word ‘family’ as defined under Sec.2(fb) of the Kerala Stamp Act and therefore, the stamp duty payable is not Rs.1,000/-. The petitioner on behalf of the other co-owners approached the office of the 3rd respondent in accordance with Sec.31 of the Stamp Act, requesting to adjudicate the proper stamp duty payable for the deed of partition. The 3rd respondent relegated the parties to appear before the 2nd respondent for adjudication. Ext.P4 is the request made by the petitioner before the 2nd respondent. The 2nd respondent, after adjudication, passed Ext.P5 order in which, the 2nd respondent also concluded that the executants of the Ext.P2 partition deed will not come within the definition of Sec.2(fb) of the Stamp Act and therefore, the petitioner and the other co-owners should pay the stamp duty as per serial No.42(b) of the Schedule attached to the Kerala Stamp Act. Aggrieved by Ext.P5, this writ petition is filed.

5. Heard counsel for the petitioner and the Government Pleader.

6. The counsel for the petitioner submitted that, in the light of serial No.42(a) of the Schedule to the Kerala Stamp Act r/w Sec. 2(fb) of the Stamp Act, the finding in Ext.P5 order is unsustainable. The counsel submitted that the words used in serial No.42(a) is members of the family and the legal heir

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			(2 children)
		Kurumba (died)				(died) Thalary
Mohanan	Prasad	Sarada	Lalitha	Padmini	Rajitha
		(6 children)
			Velayudhan (son) (died)
	Pratheesh (son)		Pratheeja (daughter)		Vally (wife)

2021 Supreme(Ker) 521

IN THE HIGH COURT OF KERALA AT ERNAKULAMP.V.KUNHIKRISHNAN, J.MOHANAN, S/O LATE VELAYUDHAN – AppellantVersusTHE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, KODALY – RespondentWP(C) NO. 4568 OF 2021Decided on : 12-07-2021

Cases Referred (2)

IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V.KUNHIKRISHNAN, J.
MOHANAN, S/O LATE VELAYUDHAN – Appellant
Versus
THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, KODALY – Respondent
WP(C) NO. 4568 OF 2021
Decided on : 12-07-2021