An instrument of partition qualifies for lower stamp duty under the Kerala Stamp Act if the executants are related within the defined family classifications.

JUDGMENT

The petitioners are aggrieved by the impugned action of the 4th respondent, Sub Registrar, Sub Registrar Office, Kodungalloor in impounding Ext.P2 partition deed presented by them for registration and referring the matter to the 3rd respondent, District Registrar (General) under Section 37(2) of the Kerala Stamp Act, 1959, for determination of the stamp duty payable for Ext.P1 deed. The petitioners also challenge Ext.P3 order dated 28.11.2017 passed by the 3rd respondent, District Registrar (General) under Section 39, whereby it has been ordered that the claim made by the petitioners for payment of lower stamp duty in Ext.P1 deed in terms of clause (a) of Article 42 of the Schedule of the Act, has been rejected, whereby it has been ordered the petitioners have to pay the stamp duty of Rs.1,10,420/- in terms of clause (b) of the above said Article 42 along with penalty of Rs.500/-, thus totaling to Rs.1,11,920/-.

2. The prayers in this writ petition are as follows:

“i) Call for the records leading to Ext.P3 order dated 28.11.2017 issued by the 3rd respondent and quash the same by issuing a writ of certiorari or

any other appropriate writ order or direction.

ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 3rd and 4th respondents to register Ext.P1 partition deed by accepting the stamp duty already paid for the

instrument.”

3. Heard Sri Harish R Menon, the learned counsel appearing for the petitioners and Smt.A C Vidhya, the learned Government Pleader appearing for the respondents.

4. According to the petitioners, in final decree proceedings in O.S No.80/79 on the file of the Sub Court, Irinjalakuda (which is suit for partition), initiated in pursuance to the preliminary decree passed in the said suit for partition, an item of property was kept together for petitioners (who are sisters) and their respective children. Based on the said final decree proceedings in O.S No. 80/79 on the file of the Sub Court, Irinjalakuda, the petitioners and the children had executed Ext.P1 partition deed on 19.07.2017 and presented the same for registration before the 4th respondent, Sub Registrar, Kodungallur, on the premise they are entitled for lower stamp duty in terms of clause (a) of Article 42 of the Schedule to the Kerala Stamp Act (for short “the Act”) in as much as Ext.P1 deed would satisfy the definition of instrument of partition within the meaning of Section 2(k) of the Kerala Stamp Act and further that the executants thereto which includes petitioners, who are sisters and their respective children would constitute a 'family' as defined in explanation appended to Article 42 of the Schedule to the Kerala Stamp Act. From the pleadings and materials on record, it is seen that the petitioners and their children had presented Ext.P1 partition deed before the 4th respondent, Sub Registrar for registration claiming the aforesaid benefits. It appears that the 4th respondent has taken a stand that since the subject matter of the partition deed is not on the basis of the partition of inherited properties, but on the basis of the decree rendered by the Civil Court, it will not come within the ambit of Section 2 (k) of the Act and thereupon he had impounded Ext.P1 document under Section 33 of the above Act and had referred the matter under Section 37 of the Act to the 3rd respondent, District Registrar (General) for determination of the actual stamp duty and the penalty payable thereon. The 3rd respondent, District Registrar (General) has now issued impugned Ext.P3 proceedings dated 28.11.2017, taking the stand that Ext.P1 partition deed will not come within the ambit of instrument of the partition under Section 2(k) of the Act, as understood in as much as what is sought to be partition is not the inherited property, but on the basis of the decree of the Civil Court. On this permise, the 3rd respondent, District Registrar has taken a stand that the petitioners and their children cannot get the benefi