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2012 DIGILAW 954 (KER)

Haleema Beevi v. District Registrar (General)

2012-10-19

T.R.RAMACHANDRAN NAIR

body2012
JUDGMENT T.R. Ramachandran Nair, J. 1. The true stamp duty payable on a partition deed claimed to be executed by the family members, is the issue raised in this writ petition. The executants are the petitioners herein. The first petitioner is the mother of late Shri Mohamed Asharaf and fourth petitioner is his widow. Petitioners 2 and 3 are the children of deceased Asharaf and the fourth petitioner. Thus, the first petitioner is the grant mother of petitioners 2 and 3. It is pointed out that the deceased died intestate and all the petitioners alone are the legal heirs. The copy of the partition deed is produced as Ext.P1. The said partition deed was registered by the Sub Registrar, but was impounded after collecting 2% of the market value of the property and on a representation by the petitioners, it was informed by the third respondent that only the fee prescribed under Schedule 42(i) is liable to be remitted for a partition deed. The petitioners claimed refund of the amount collected, by pointing out that only Rs.1,000/-be paid as stamp duty and the registration fee is only 1%. In reply, the District Registrar informed them by Ext.P5 that the executants of the partition deed will not come within the term 'family' under Article 42(i) and therefore the document can be treated only as one under Article 42(ii) for stamp duty. Therefore, a total amount of Rs.4,10,000/-will have to be remitted towards stamp duty and penalty. 2. Heard learned counsel for the petitioners and learned Government Pleader. 3. Learned counsel for the petitioners submitted that the deceased has left the petitioners as his legal heirs. All the executants will come within the definition of 'family' under Explanation to Schedule 42(i) of the Act. The "mother" and "father" are specifically included in the Explanation and therefore the first petitioner is covered by the main body of the Explanation and it is submitted that the plea raised by the respondents has no merit. 4. In the counter affidavit filed by the first respondent it is contended that going by the Explanation, 'family' means father, mother, husband, wife, son, daughter, grand children, brother, sister and legal heirs of deceased children and grand mother is not included therein. Therefore, Schedule 42 (i) is not attracted. Learned Government Pleader submitted that the view taken in Ext.P5 is therefore proper. 5. Therefore, Schedule 42 (i) is not attracted. Learned Government Pleader submitted that the view taken in Ext.P5 is therefore proper. 5. The definition of "instrument of partition" under Section 2(k) of the Kerala Stamp Act is the following: "(k) "Instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severality, and includes also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an arbitrator directing a partition." Schedule 42(i) and the Explanation as amended now, reads as follows: "(i) Where the partition is among all or some of the family members: "One rupee for every rupees 100 or part thereof of the fair value of the land and the value of all the properties of their separated share or shares or the value of all the share or shares of all properties, whichever is higher, subject to a maximum of Rupees 1000. Explanation: Family means father, mother, husband, wife, son, daughter, grand children, brother, sister and legal heirs of the deceased children, if any, as the case may be." Therefore, where the partition is among all or some of the family members who are covered by the Explanation, the maximum amount of Rs.1,000/-alone need be paid. 6. The only question is whether the first petitioner will be covered by the Explanation. The unamended Explanation was the following: "Family means husband, wife, children and the legal heirs of the deceased children if any, as the case may be." Father and mother were included along with grand children, brother and sister by an amendment by Act 16 of 2011. Previously, the term 'family' only included husband, wife, children and the legal heirs of the deceased children. Therefore, the amendment was specifically introduced to include father and mother also. Herein, the partition is of the property of the deceased, late Shri Mohammed Asharaf. If that be so, the members of his family will include his father and mother also apart from other members like wife and children. The objection now raised that the word 'grandmother' is not included in the Explanation, therefore cannot be sustained. Herein, the partition is of the property of the deceased, late Shri Mohammed Asharaf. If that be so, the members of his family will include his father and mother also apart from other members like wife and children. The objection now raised that the word 'grandmother' is not included in the Explanation, therefore cannot be sustained. Since the property sought to be partitioned is that of the son of the first petitioner, the first petitioner being the "mother", will be covered by the Explanation, otherwise the word 'mother' in the Explanation will not get any meaning. The introduction of the words 'father and mother' along with certain other relations by the amendment will lose its applicability if the contentions of the respondents are accepted. Of course, in the unamended Explanation the words 'father and mother' were not there. Therefore, the effect of the amendment will have to be borne in mind while interpreting the provision. 7. If that be so, the petitioners being the legal heirs of the deceased and are covered by the term 'family' in the Explanation, the stamp duty payable will be Rs.1,000/-as per Schedule 42(i) and Schedule 42(ii) will not be attracted to the facts of this case. 8. Accordingly, the writ petition is allowed. Ext.P5 will stand quashed. There will be a direction to the respondents to refund the additional 1% of the registration fee collected from the petitioners, within a period of two months from the date of receipt of a certified copy of this judgment. No costs.