The court affirmed that a cancellation deed does not constitute a conveyance and should not incur additional stamp duty under the relevant provisions of the Kerala Stamp Act.

J U D G M E N T

The petitioner impugns Ext.P6 proceedings issued by the 3rd respondent - District Registrar, refusing to register Ext.P2 Deed citing the reason that it cannot be construed as an ordinary Cancellation Deed but only as a Deed of Conveyance, which consequently would attract higher stamp duty under Section 21 (1) of the Kerala Stamp Act, 1959 (hereinafter referred to as 'the Act' for short).

2. The petitioner explains that the property involved in this case was originally purchased by her and her brother - Sri.Somachandran Nambiar and that in the year 1990, even without her knowledge, her brother had executed Ext.P7 deed releasing his share in the property to her; and consequently that she became full owner of the same. She says that her brother died soon thereafter; and that it is without being aware of Ext.P7, that she executed Ext.P1 Partition Deed, dividing the property among herself and the legal heirs of Sri.Somachandran Nambiar. She asserts that when she came to be aware of existence of Ext.P7, she and the legal heirs of late Somachandran Nambiar executed Ext.P2 document to cancel Ext.P1 Partition Deed; but that this has now been objected and refused to be registered through Ext.P6, for the afore reason.

3. The petitioner thus, prays that Ext.P6 be set aside and the competent Authority be directed to register Ext.P2 Cancellation Deed, within a time frame to be fixed by this Court.

4. In response, the learned Senior Government Pleader -

Sri.Rajeev Jyothish George, submitted that, as is evident from Ext.P2, what has been sought to be done through Ext.P2 is to confer the entire rights over the property on the petitioner. He contended that petitioner, therefore, is attempting to evade stamp duty, by not registering it as a Conveyance Deed, but in choosing to cancel Ext.P1 Partition Deed, thus rendering her conduct illegal.

5. On the question of law, the learned Senior Government Pleader asserted that, whatever be the explanation given by the petitioner, since Ext.P2 seeks to transfer property in her favour, it can only be construed as a Conveyance Deed, attracting duty under Section 21 (1) of the Act. He, therefore, prayed that this writ petition be dismissed.

6. I have given a careful thought to the rival submissions as afore and have also examined the various materials available on record.

7. It is doubtless - being admitted - that the property in question was originally purchased by the petitioner and her brother -

late Somachandran Nambiar. The latter died subsequently, but before his death, he had executed Ext.P7 deed, releasing all his rights over the property in favour of the petitioner.

8. Luculently, therefore, on Ext.P7 having been executed and registered, the petitioner became the full owner of the property in question. Thereafter, either being not aware of this, or on account of an inadvertent omission, the petitioner chose to execute Ext.P1 Partition Deed, dividing the property among herself and the legal heirs of late Somachandran Nambiar. This document could never had been executed and could not have been registered by the competent Authority because, by then, the property had become vested in the petitioner exclusively. It is at that stage, in fact, that the Sub Registrar ought to have objected because, through the Partition Deed, what was done was to transfer the rights over the property to the legal heirs of late Somachandran Nambiar. However, pertinently, no such objection was raised and Ext.P1 Partition Deed was allowed to be registered.

9. Thereafter, on being aware of the faux pas committed, the petitioner presented Ext.P2 document to cancel Ext.P1, and this has now been objected through Ext.P6, alleging that, through this arrangment, a transfer of right is being attempted over the property.

10. Prima facie, I cannot find favour with Ext.P6 because Ext.P2 only seeks to cancel Ext.P1 Partition Deed. Ext.P1 was executed at a time when the property was admittedly in exclusive and full ownership of the