The definition of 'family' under personal law allows multiple wives to be legal heirs for purposes of partition and registration.

1. The petitioner is one of the legal heirs of one Moosakutty Haji. The petitioner has approached this court being aggrieved by the fact that a partition deed intended to be executed between legal heirs of late Moosakutty Haji is not being accepted for registration on the ground that two of the parties mentioned to the partition deed are stated to be wives of late Moosakutty Haji. It is submitted that when the Personal Law applicable to parties permits the late Moosakutty Haji to have more than one legally wedded wife, it is not proper on the part of the Sub Registrar to refuse registration on the ground referred to above.

2. The learned Government Pleader refers to the counter affidavit filed in this case and submits that the stand taken by the Sub Registrar appears to be correct in the light of the definition of 'family' defined in S.2 (fb) of the Kerala Stam Act, 1959 (the 1959 Act). "Family", in S.2 (fb) of the 1959 Act) means father, mother, grandfather, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grandchildren, brother and sister. Therefore, if more than one person is described as wife of the person whose estate is sought to be partitioned by the legal heirs, the document cannot be registered as a partition deed to which the stamp duty is payable would be the amount specified in Art.42 (a) to the Schedule to the 1959 Act.

3. The learned counsel for the petitioner would submit that the stand taken by the Sub Registrar and as projected by the learned Government Pleader may run countrary to the view taken by this court in Kunjithomman E.T. v. State of Kerala and others ; 2020 KHC 3660, where this court after considering a similar contention based on the definition of 'family' in S.2 (fb) 0fthe 1959 Act had taken the following view: -

"10. A person may hold property either as a legal heir or as an individual. If the person is not holding the property as a legal heir, mere family relationship with the person to whom right is being conveyed will not qualify him to claim the concessional rate. The term 'legal heir' is an assigned norm under law with a qualification attributable in the context of the succession to an estate. A legal heir has a distinct character in his personality independent of being a legal heir in relation to a property. That independent property with a legal heir will not be related to others based on the rule of cognation under law of inheritance.

11. The legal heir is defined in Black's Law Dictionary as follows:
"Persons entitled under laws of descent and distribution. Person to whom law would give decedent's property if decedent died intestate."

12. The dictionary meaning as above establishes the fact that 'legal heir' is an assigned norm under law in relation to an estate and therefore, estate of the deceased must be the subject matter of such instrument."

It is submitted that under Art.42 (a) of the Schedule to the 1959 Act, the lower rate of stamp duty is applicable where the partition is amongst of or any of the members of the family and the legal heirs of the deceased family member if any. It is submitted that going by the Personal Law applicable to the parties, two wives of the deceased Moosakutty Haji cannot by any stretch of imagination be described as other than legal heirs of late Moosakutty Haji and therefore the stand taken by the Sub Registrar cannot be accepted in law.