A person who obtains property via a gift deed becomes a co-owner and retains the right to partition, regardless of the method of acquisition, ensuring adherence to the defined legal status under the applicable Stamp Act.

JUDGMENT :

BASANT BALAJI, J.

1. The petitioner is a co-owner in respect of property in re-survey numbers.190/5-8 and 190/4-10 of Eranellur Village, Kunnamkulam Taluk in Thrissur district. The extent of property is 4.78 Ares, which originally belonged to the father of the petitioner one Bharathan and another person, by name Nasar, by virtue of registered sale deed bearing No.1862/2013 of Sub Registrar Office, Mundur. The petitioner’s father gifted his undivided one-half share in the subject property in favour of the petitioner by virtue of a registered gift deed bearing No.1997/1/2024 of the Sub Registrar Office, Mundur. The petitioner and the co-owner of the property wanted to partition the same by metes and bounds. Therefore, they executed Ext.P4 partition deed on stamp paper having a value of Rs.7,20,000/- on 04.10.2025. The total value of the property is shown as Rs.2,40,00,000/-.

2. In respect of item No.1 schedule property, market value has been calculated as Rs.1,20,00,000/- and the same is allotted to the petitioner and the item No.2 schedule property has been allotted in favour of the co-owner, and the market value is calculated as Rs.1,20,00,000/-. When the document was produced before the 3^rd respondent for registration, he refused to register the same on the ground that the right of the petitioner is a created co-ownership of the property and he is directed to pay 8% of the stamp duty of Rs.7,20,000/- and also 2% registration fees for the amount. The petitioner challenges the said intimation, Ext.P6 dated 6.10.2025, in this writ petition.

3. A statement is filed by the 3^rd respondent, wherein it is stated that while scrutinizing the document, it was found that there does not exist co-ownership in the said property for the reason that one of the joint owners subsequently transferred his right to his son by virtue of a Gift deed. For getting partition, the pre-existence of joint ownership is a basic requirement, but by a subsequent transaction one of the parties, namely Sri.Bharathan, had lost the same.

4. In the letter No.11763//E3/88/T.D. dated 09. 01. 1989 of the Commissioner & Secretary to the Government, Taxes Department informed the Registration Inspector General that a purchaser cannot claim the status of a co-owner of a property. Therefore, the nature of the transaction is akin to a sale deed, and stamp duty is to be levied as per Schedule Nos.21 and 22 of the Kerala Stamp Act, 1959 (the Act) and not under Schedule 42 of the Act. The petitioner obtained the property through a gift deed, and therefore, the share is independent and does not form part of the undivided share of the petitioner’s father. Therefore, the petitioner cannot be considered as a co-owner for the purpose of stamp duty under the Act. If the petitioner remits the proper stamp duty, the respondent shall register the document.

5. Heard the learned counsel for the petitioner as well as the respondent.

6. Section 2(k) of the Act defines instrument of partition as follows:

“Instrument of Partition” means any instrument whereby co-owners of any property divide or agree to divide such property in severally, 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;”

7. The petitioner obtained the property through a gift deed executed by the father of the petitioner. Upon execution of the gift deed and acceptance of the gift, the petitioner steps into the shoes of his father as a co-owner. Therefore, the undivided shares belong to the petitioner, who obtained his share through a gift is entitled for partition as a co-owner.

8. Thus, being a co-owner of the property of Bharathan, and in order to have sepa