JUDGMENT

S.MANIKUMAR, CJ Short facts leading to the interim order dated 20.04.2021 in W.P.

(C).No.9308/2021, impugned in this writ appeal, are as hereunder:-

“Whether a property right obtained by virtue of a Deed of Partnership can be released under Act 48(a) of schedule to the Stamp Act, to a single partner by the other partners, even if they are siblings, is the question to be decided in the writ petition. The petitioner has sought for registration of a Deed of Release in favour of him by his brothers, on which the District Registrar has demanded 8% of Stamp Duty as per Article 48(c) of the Stamp Act. The learned single judge have issued an interim order permitting the petitioner, the registration on payment of 0.2% of Stamp Duty under Article 48(a). The interim order is against the settled preposition of law and hence this writ appeal.”

2. Assailing the correctness of the impugned order, the appellant has raised the following grounds:-

“B. The learned single judge ought to have considered the prima facie issue involved in this matter as the status of the RELEASORS is that of partners and not as siblings of the petitioner. The learned Single Judge also should have considered the nature of transfer as there is a transfer of immovable property which always fall under the category which is chargeable under other provisions.

C. The learned single judge ought to have upheld the adjudication of the District Registrar as the same is properly done as per the residuary provisions under Article 48 of the schedule of the Stamp Act. In the present case the RELEASORS are persons not having individual titles but is entitled for a share only in the property owned by the firm.

D. The Division Bench of this Court in [2018(4) KHC

95] State of Kerala and others Vs. V.D.Vincent have specifically held that, the transfer of immovable property can be effected to the individual partners of the firm only by way of registration of a valid deed of conveyance. In this case the Hon'ble Division Bench was considering the rights of the partners of a dissolved firm. It is to be particularly noted that, in the present case the partnership is still existing and a dissolution has not taken place. Even otherwise there cannot be any individual ownership to the RELEASORS as claimed in the draft Release Deed.

E. The learned single judge ought to have considered the preposition laid down by this Hon'ble Court in Vinayakrishnan M.C. V Commissioner of Land Revenue, Thiruvananthapuram and others (2015(3) KHC 752). It was held that “immovable properties acquired and held in the name of partnership firm, which remained under Co- ownership of all partners, when released in favour of one of the partners, creates new rights the immovable property and a deed creating such rights would have to be registered compulsorily under Act 48(b) and to be stamped accordingly. The above preposition is squarely applicable in the present case, as hear also, the property is acquired in the name of the partnership firm and the proposed Deed of Release creates new rights on the immovable property.

F. The learned single judge ought to have seen that the issue with respect to payment of the stamp duty has been also considered by this Hon'ble Court in A.H.Phiroskhan V. Dr. A.H.Jabbara and others (2006 KHC 307:ILR 2006 (D.Ker 186:2006(1) KLT 38:2005 (3) KLJ 632) and it is held that, a document by which one of the partners who retires from the partnership, releases his right, is chargeable to stamp duty, chargeable to release as per Article 48(b) of Kerala Stamp Act 1959.”

3. Added further, Mr. Teck Chand, learned Senior Government Pleader submitted that, as per schedule to Article 48(b) of the Kerala Stamp Act, 1959, the respondent has to pay a sum of Rs. 1.76 crores, whereas, this Court directed registration of the release deed by directing payment of only 0.2% under the schedule to Section 48(a) of the Kerala Stamp Act, 1959, which amounts to Rs.21 lakhs only.

4. Though Mr. Teck Chand, learned Senior G