A partition deed among family members is subject to lower stamp duty under the Kerala Stamp Act, and registration authorities cannot determine the title or rights of parties.

JUDGMENT

The petitioners 1 to 4 are the children of late Gouri and the petitioners 5 and 6 are the legal heirs of Malathi, the deceased daughter of Gouri. The property having an extent of 8.90 Ares situated in Re Survey No. 322/41 (Old Survey No. 532/41) of Kolazhi Village, Thrissur Taluk was purchased by Gouri along with her son Sri.Chandrahasan and daughter late Malathi as per Ext. P1 sale deed dated 3.10.1950. Sri. Chandrahasan, as per Ext. P2 Release deed dated 20.02.1990, had released his share in the above mentioned property in favour of Gouri. As per Ext. P3 registered Settlement deed dated 25.02.2000, Gouri had settled her 2/7^th share in the above mentioned property derived as per Ext. P1 sale deed and Ext. P2 release deed in favour of her daughters, Smt. Jayasree, the 1^st petitioner, Smt. Shyamala Devi, the 2^nd petitioner and Smt. Sreelatha, the 3^rd petitioner. In Ext. P3 Settlement deed, it is mentioned that the petitioners 1 to 3 and their brother Sri. Radhakrishnan, the 4^th petitioner, are having one share in the above mentioned property as per Hindu Succession Act, since they were born prior to 31.12.1970.

2.While so, the children of Gouri and legal heirs of Malathi, who are in joint possession of the aforesaid property intended to execute a partition deed amongst themselves and prepared Ext. P4 partition deed dated 26.12.2022 and presented the same for registration before the 4^th respondent Sub Registrar. The Sub Registrar objected to the registration of Ext.P4 partition deed for the reason that Sri. Radhakrishnan, one of the shares/parties to the partition deed, was not having competency to be a party to Ext. P4. As per Ext. P5 order, the Sub Registrar directed the 1^st petitioner to produce documents to show the competency of Sri. Radhakrishnan to be a party to Ext.P4 partition deed. The 1^st petitioner produced Ext.P3 document before the Sub Registrar to show that Sri. Radhakrishnan is the son of late Gouri and is a necessary party to Ext.P4 Partition deed. However, the Sub Registrar, by Ext. P6 order, held that the stamp duty for Ext. P4 Partition deed is 8% on the valuation of the property shown in the document and for that purpose, invoking Section 33 of the Kerala Stamp Act, 1959 , the document has to be forwarded to the 3^rd respondent, the District Registrar to determine the stamp duty as per Section 37(2) of Kerala Stamp Act and for the said process, the petitioner has to remit 2% registration charges of Rs. 49,20,000/-, the valuation of the property shown in the document, and directed to remit a sum of Rs. 62,700/- towards registration charges. The petitioners have filed this writ petition challenging Ext. P6 order passed by the Sub Registrar.

3. According to the petitioners, Ext. P4 partition deed which was presented for registration is a partition among the sharers, namely, the children of Gouri and legal heirs of Malathi and therefore, there is no question of charging 8% stamp duty on the same. The petitioners contend that, on a conjoint reading of Sections 2 (k), 2(fb) and Article 42 of the Kerala Stamp Act, Ext. P4 can only be treated as a partition deed between the legal heirs of late Gouri and that Sri. Radhakrishnan, being the son of late Gouri, is a necessary and proper party to Ext. P4 partition deed and therefore, the stamp duty payable on Ext. P4 is as per Article 42 of the Kerala Stamp Act and the stamp duty of Rs. 5,500/- [Rs. 35,70,000/-x 15/10,000] paid by the petitioners is correct. The petitioners also contend that Ext. P6 order does not give any reason as to why a stamp duty of 8% of the total valuation of the property ought to be charged as there is no provision of law which empowers the Sub Registrar or the District Registrar to levy the same. Accordingly, the petitioners pray to quash Ext. P6 order and seek