The court determined that errors in property descriptions can be rectified through a rectification deed, which does not invoke conveyance stamp duty if no new rights are being created.

The petitioners have approached this Court aggrieved by the direction issued by the respondent Sub-Registrar to remit stamp duty applicable to 'conveyance' in a release deed among siblings, where joint interest survives.

2. It is averred that the 1st petitioner along with other siblings are legal heirs of one Thayyil Hamza, executed Ext.P1 partition deed. In the schedule of the said property the nature of the right was referred to as ‘Kaivasha panayam’ (leasehold right). In fact, the predecessor of executants of Ext.P1 had obtained a Purchase Certificate with respect to the property covered as per Ext.P1 as per Purchase Certificate No.334 of 1973 of Land Tribunal, Mankada. However, the same was left unnoticed by the executants of Ext.P1 and only the leasehold right was partitioned among executants. Upon noticing the Purchase Certificate, the 1st petitioner executed a release deed in favour of petitioners 2, 3 and 4 as per Ext.P2 and petitioners 2 to 4 executed Ext.P3 release deed releasing undivided absolute title in favour of the 1st petitioner.

Both these documents were presented for registration and the registering authority has taken a stand that the nature of transaction as per Exts.P2 and P3 attracts stamp duty as if it is a conveyance under Article 22 of the Kerala Stamp Act . It is contended that even though a partition was effected based on leasehold right, a subsequent release of 'janmam’ title will not attract any stamp duty under the provisions of Article 48(a) of the Kerala Stamp Act .

3. A counter affidavit has been filed by the 2nd respondent in support of the stand taken in not registering Exts.P2 and P3, wherein paragraph10 reads as follows:

“10. Here in this document, a new right is created, ie, the right of Kaivasha panayam is changed as the right of Jenmam in this document. Therefore the ground cannot be considered merely as an excused ground for transfer release of nominal right. Since Kerala Stamp Act 1959 is a taxing statute, this document can only be considered as a partition deed for correcting the mistake of a materially altered past while determining the Stamp Duty.”

5. I have considered the rival contentions of both the parties. Essentially the mistake was crept in Ext.P1, which shows that what is being partitioned is the leasehold rights of the predecessor of the petitioners, where in fact the predecessor of the petitioners had obtained the Purchase Certificate with respect to the property covered by Ext.P1 as per Purchase Certificate No.334 of 1973 of Land Tribunal, Mankada. In view of the above said circumstance, I am of the view that it is for the petitioners to execute a rectification deed taking note of the fact that it was not the leasehold right which ought to have been partitioned, but the absolute title of 'janmam' rights obtained as per Purchase Certificate No.334 of 1973 of Land Tribunal, Mankada.

6. This Court in Jihas v. District Registrar [2012 (3) KLT 194] has held that even in case where a mistake in the flat number in the sale deed and even if there is an extinguishment of right and creation of right, that will not alter the nature of the rectification deed for all purposes including stamp duty and the same could be corrected in a rectification deed. This Court in Baburaj P. K. and others v. State of Kerala and others [2019 (2) KHC 628] held in paragraphs 8 and 9 as follows:

“ 8. The Stamp Act or the Registration Act does not define a rectification deed by assigning an exclusive meaning to it. The Registration Act provides a Table of fees under Section 78 of the Act. Table 1(s) under Section 78 refers a deed which can be treated as rectification deed and it states that the maximum fee leviable on such a deed at Rs.500/-. It gives sufficient indication as to, what is a rectification deed. It states that rectification deed does not create, transfer, limit, extend, extinguish or record any right. Therefore, wrong description which will not create, transfer or record any