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2018 DIGILAW 718 (KER)

Biju C. Alex v. State of Kerala

2018-09-07

ALEXANDER THOMAS

body2018
JUDGMENT : Alexander Thomas, J. 1. The petitioners are aggrieved by the impugned action on the part of the 3rd respondent- Sub Registrar, SRO, Thiruvalla, in refusing to register Ext.P-4 presented by the petitioners as a partition deed, on the ground that the said deed cannot be construed as an instrument of partition as per Sec.2(k) of the Kerala Stamp Act, 1959 as the property covered by Ext.P-4 was already the subject matter of the partition in Ext.P-1 registered partition deed dated 30.07.2009 duly executed by the co-owners concerned. 2. The prayers in this Writ Petition (Civil)are as follows: "(i) to issue a writ of certiorari and quash Exhibit P6 as highly illegal and arbitrary. (ii) to issue a writ of mandamus directing the 3rd respondent herein to register Exhibit P4 partition deed within a time frame to fixed by this Hon'ble Court. (iii) to issue a declaration that the Exhibit P4 partition deed in an instrument of partition whereby the undivided shares of the petitioners are partitioned since the 2nd petitioner has not executed or partitioned her share in the property as per Exhibit P1 partition deed. (iv) to declaration that Exhibit P4 partition deed is an instrument of partition as defined under Section 2(k) of the Kerala Stamp Act, 1959. (v) to pass such other writ, order or direction which this Hon'ble court may deem fit and proper in the facts and circumstances of this case." 3. Heard Sri.S.Ranjit, learned counsel appearing for the petitioners, Smt.A.C.Vidhya, learned Government Pleader appearing for the official respondents 1 to 3 and Sri.K.S.Rockey, learned counsel appearing for the additional respondent No.4. 4. It is stated that one Sri.C.G.Chandy, the father of the petitioners had purchased an extent of 102 cents of property lying in old survey No.194/6/A (presently in re-survey No.183/1 in block No.7), in Kavumbhagom village in Thiruvalla Taluk, Pathanamthitta Revenue District as per sale deed No.3543/1963 of SRO, Thiruvalla. It is stated that Sri.C.G.Chandy had died intestate on 07.08.1978 and the said property had devolved on his legal heirs viz., his wife (Thankamma Chandy) and their five children (one son and four daughters), including the two petitioners herein. The five children of C.G.Chandy and Thankamma Chandy are 1.Mariamma Varghese, 2.Saley Kurian, 3.Sunu C.Chandy, 4.Laly Abraham (2nd petitioner herein) and 5.Biju C.Alex (1st petitioner). The five children of C.G.Chandy and Thankamma Chandy are 1.Mariamma Varghese, 2.Saley Kurian, 3.Sunu C.Chandy, 4.Laly Abraham (2nd petitioner herein) and 5.Biju C.Alex (1st petitioner). Sunu C.Chandy had died on 05.03.2009 and upon her death, her share of the property devolved upon her husband, Jose Eapen and two children (sons) viz., Tony Jose and Tittu Eapen Jose (R4 herein). In the year 2009, the 1st petitioner herein (Biju C.Alex)and along with Thankamma Chandy (mother) and two out of his 4 sisters, viz., Mariamma Varghese and Saley Kurian and brother-in-law, Jose Eapen (husband of Sunu C.Chandy who was by then deceased) had jointly executed Ext.P-1 partition deed No.1863/2009 dated 30.07.2009 of SRO, Thiruvalla, among themselves with regard to their respective shares, out of the above mentioned property of late C.G.Chandy, which stood undivided. At the time of execution of Ext.P-1 registered partition deed dated 30.07.2009, the 2nd petitioner (Laly Abraham) and the two children of late Sunu C.Chandy, viz., Tony Jose and Tittu Eapen Jose (R4), had not joined the execution of Ext.P-1 partition deed and hence they thus stood excluded from the said partition process. As per Ext.P-1 partition deed, all the sharers therein except the mother (Thankamma Chandy), had relinquished the respective undivided shares of the property in favour of the 1st petitioner herein. Though the mother’s share was divided and separated as re-scheduled to Ext.P-1, the same also stood subject to the undivided shares of the abovesaid three persons, who are excluded in Ext.P-1 partition deed. So, it is clear that the abovesaid three excluded persons (Laly Abraham-2nd petitioner and the two children of late Sunu C.Chandy viz., Tony Jose and Tittu Eapen Jose (R4)), are concerned, the rights of the executants of Ext.P-1 partition deed stood subject to the undivided shares of the abovesaid excluded co-owners. So it is clear that the said three excluded co-owners are not bound by Ext.P-1 partition deed. It is also to be noted that the stand of the 3rd respondent that what is involved is the conveyance, is absolutely unsustainable in as much as there is no question of conveyance, in the facts of this case. Learned Government Pleader has submitted on the basis of instructions of R3 that the original executants of Ext.P-1 deed had not disclosed about the aforesaid excluded co-owners at the time of execution of Ext.P-1 deed. Learned Government Pleader has submitted on the basis of instructions of R3 that the original executants of Ext.P-1 deed had not disclosed about the aforesaid excluded co-owners at the time of execution of Ext.P-1 deed. That the original executants should have disclosed that aspect at the time of registration of Ext.P-1 and that in case such excluded co-owners like the 2nd petitioner was not in a position to take part in Ext.P-1 partition deed, there was a provision that the rest could be apportioned a part of the property according to their proportionate rights over the property or they could have included their names in the partition deed and later they could have executed and completed the deed by putting their signatures with date to get it re-registered, etc. That in view of the instructions of the Board of Revenue dated 17.04.1989, the present deed at Ext.P-4 is only to be treated as a conveyance falling under Art.21 of the Schedule as lower stamp duty for partition has already been availed for Ext.P-1, etc. 5. It is further averred that the abovesaid Tony Jose (who is the son of late Sunu C.Chandy born in her wedlock with the abovesaid Jose Eapen), had relinquished his abovesaid undivided share in the abovesaid property in favour of the 1st petitioner herein as per Ext.P-7 relinquishment deed dated 26.10.2009 of SRO, Thiruvalla. Later, the mother of the petitioners, viz., Thankamma Chandy during her lifetime had bequeathed her property (20 cents in re-survey No.183/1 which is 'B' Schedule of Ext.P-1 partition deed), in favour of the 1st petitioner herein by virtue of a registered Will bearing registration No.221/2009 of SRO, Thiruvalla. So by then, all the sharers, except the 2nd petitioner (Laly Abraham) and R4 (Tittu Jose, son of late Sunu C.Chandy), had relinquished their undivided shares in favour of the 1st petitioner herein and thereby the 1st petitioner had become the absolute owner of their respective undivided shares subject to the rights relating to the undivided rights of the 2nd petitioner and the 4th respondent. 6. It is further averred that the 2nd petitioner, who was one among the two remaining excluded co-owners had filed Ext.P-2 civil suit as O.S.No.289/2013 before the Munsiff’s Court, Thiruvalla, for partition of the property, wherein the other co-owners including the mother, R4 herein (who was arrayed as defendant No.7 therein) etc. 6. It is further averred that the 2nd petitioner, who was one among the two remaining excluded co-owners had filed Ext.P-2 civil suit as O.S.No.289/2013 before the Munsiff’s Court, Thiruvalla, for partition of the property, wherein the other co-owners including the mother, R4 herein (who was arrayed as defendant No.7 therein) etc. were arrayed as defendants therein and contention was raised in the said suit that the aforesaid Ext.P-1 partition deed No.1863/2009 does not bind the 2nd petitioner and for separately partitioning her undivided share. It was during the pendency of Ext.P-2 civil suit that Thankamma Chandy (the mother of the petitioner) had died. 7. Later, the parties to the above suit had opted to seek mediation settlement of their disputes. It is accordingly, averred that a settlement was arrived at before the Mediation Centre attached to the Civil Courts at Thiruvalla and had arrived at Ext.P-3 settlement dated 10.08.2018. As per Ext.P-2 settlement, it was mutually agreed and the 2nd petitioner’s share was fixed as 15 cents and that of the 4th respondent was fixed as 4.93 cents, in accordance with their entitlement in the entire property and they agreed to execute necessary documents separating their respective shares and to get the same registered. The terms and conditions of the settlement are clear from Ext.P-3 settlement certified by the Mediation Centre attached to the Civil Courts at Thiruvalla. 8. It is thus the case of the petitioners that it is in furtherance of Ext.P-3 mediation settlement agreement that the parties had prepared necessary Ext.P-4 partition deed, in continuation of Ext.P-1 partition deed. Therefore, it is clear that though Ext.P-2 partition deed is not binding on the two excluded co-owners, viz., the 2nd petitioner and R4, the same need not be ignored in toto while partitioning their respective shares. That this is especially so, when the parties, instead of litigating on merits, had chosen for Ext.P-3 settlement before the mediation centre. 9. It is the case of the petitioners that in obligation to Ext.P-3 agreement, the parties had decided firstly to execute a partition deed between the 1st and 2nd petitioners herein, so as to partition and separate the 2nd petitioner’s 15 cents agreed to in Ext.P-3, subject to the undivided share of R4 (Tittu Jose). On that basis that Ext.P-4 partition deed has been drawn up. On that basis that Ext.P-4 partition deed has been drawn up. It has been further agreed that after registration of Ext.P-4 partition deed, 4th respondent will execute a separate relinquishment deed in favour of the 2nd petitioner herein, thereby relinquishing his undivided shares in respect of the 15 cents of property partitioning in favour of the 2nd petitioner. It is thus pointed out that on execution of Ext.P-4 partition deed and the proposed relinquishment deed of R4, the abovesaid property having an extent of 15 cents referred to in Ext.P-3 and Ext.P-4, will thus become the absolute property of the 2nd petitioner. It is further pointed out by the petitioners that after the registration of Ext.P-4 partition deed as well as the abovesaid relinquishment deed of the 4th respondent, the remaining extent of property will become the joint property of the 1st petitioner and the 4th respondent alone. That further it is agreed that the 1st petitioner and the 4th respondent will execute another partition deed and separate 4.93 cents as the share of R4. That the parties have decided to execute and register documents in the aforesaid manner, so as to effectuate Ext.P-3 mediation agreement and at the same time to effectuate the rights of the two excluded co-owners. 10. The 4th respondent has also filed a separate affidavit dated 30.08.2018 fully concurring with the abovesaid factual averments of the two petitioners herein and paras 3 and 4 of the said affidavit dated 30.08.2018 of R4 read as follows: "3. It is respectfully submitted that in obligation to Exhibit P3 agreement, I along with the petitioners in the writ petition have decided to firstly execute a partition deed between the 1st and 2nd petitioners herein partitioning and separating the 2nd petitioner's 15 Cents subject to my undivided share. On registration of that document, I will execute a relinquishment deed in favour of the 2nd petitioner herein thereby relinquishing my undivided share in respect of the 15 Cents of property partitioned in favour the 2nd petitioner. On execution and registration of these two documents, the said property having an extent of 15 Cents will become the absolute property of the 2nd petitioner. At that point of time, the remaining extent of property will become the joint property of the 1st petitioner and myself. On execution and registration of these two documents, the said property having an extent of 15 Cents will become the absolute property of the 2nd petitioner. At that point of time, the remaining extent of property will become the joint property of the 1st petitioner and myself. Thereafter, I along with the 1st petitioner in the above writ petition will execute another partition deed partitioning and separating 4.93 Cents as my share. I along with the petitioners have decided to execute and register the documents in compliance of Exhibit P3 agreement in the above manner keeping in mind Exhibit P2 partition deed to which due weightage ought to be given and also to avail the benefit of exceptions under the Kerala Stamp Act. Any other mode of execution of documents will adversely affect the sequence of derivation of title in respect of the property as well as the validity of the documents already executed and registered. The drafts of necessary documents are already prepared and approved. Since the registration number of Exhibit P4 deed has to be entered therein, the same is not engrossed on a stamp paper. 4. It is respectfully submitted that as the 2nd petitioner and I (minor at that point of time) did not join the execution from Exhibit P1 partition deed, the execution and registration thereof can only be subject to our rights in the undivided property which is subject matter of the said partition deed. Therefore, any further document for dividing the shares in severalty regarding our undivided shares can only be done by way of execution of a partition deed alone. Therefore, Exhibit P6 issued by the Sub Registrar, Thiruvalla is per se illegal and arbitrary. If Exhibit P6 is allowed to stand then the 3rd respondent may in all probability same repeat the same illegal stand regarding partition of my share also. Exhibit P3 agreement is a result of amicable settlement in Exhibit P2 suit in which I am the 7th defendant and I am also a party to Exhibit P3 agreement. Exhibit P4 partition deed has to be first registered and the same will facilitate the execution of documents between me and the petitioners in the manner stated in the memorandum of writ petition and the averments contained therein are true and correct. I have no objection for the allowing of writ petition." 11. Exhibit P4 partition deed has to be first registered and the same will facilitate the execution of documents between me and the petitioners in the manner stated in the memorandum of writ petition and the averments contained therein are true and correct. I have no objection for the allowing of writ petition." 11. It is by the impugned Ext.P-6 memo that the 3rd respondent-SRO has refused to register Ext.P-4 as a partition deed and had returned the said document to the petitioners stating that as the properties in question have already been partitioned by Ext.P-1 partition deed dated 30.07.2009, the document presently presented by the petitioners as Ext.P-4 dated 13.08.2018, will not come within the definition of “partition instrument” as per Sec.2(k) of the Kerala Stamp Act, 1959. Further that as the properties in question have already been partitioned as per Ext.P-1, the transaction as per Ext.P-4 would amount to conveyance of the property and that the petitioners will have to pay applicable stamp duty for conveyance and not for deed of partition. The impugned Ext.P-6 memo dated 13.08.2018 reads as follows: xxx xxx xx 12. Sec.2(k) of the Kerala Stamp Act reads as follows: “2.Definitions.- In this Act, unless the context otherwise requires,- ............. ............... (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;” 13. Further the State Legislature has amended the provisions of the Kerala Stamp Act, 1959, by introducing definition of “family” as per Sec. 2(fb) and by amending Art.42 of the Schedule of the said Act dealing with partition, which are brought into force w.e.f. 1.4.2018, by the Finance Act, 2018. The said section 2(fb) reads as follows: “2. Definitions.- In this Act, unless the context otherwise requires,- (a) ........................ ......................... (fb) "family" means father, mother, grandfather, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grandchildren, brother and sister;” 14. The said section 2(fb) reads as follows: “2. Definitions.- In this Act, unless the context otherwise requires,- (a) ........................ ......................... (fb) "family" means father, mother, grandfather, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grandchildren, brother and sister;” 14. Art.42 of the Schedule to the Act as it stands amended w.e.f. 1.4.2018, provides as follows: “(a) Where the partition is among all or any of the members of the family and legal heirs of the deceased family member, if any Fifteen rupees for every rupees 10,000 or part thereof of the fair value of the separated share or shares of land and the value of other properties in such separated share or shares set forth in the instrument or of the value of all the properties of the separated share or shares as set forth in the instrument, whichever is higher, subject to a minimum of rupees 1000. (b) in any other case Six rupees for every rupees 100 or part thereof of the amount of the value or fair value of the separated share or shares of the property, whichever is higher.” (emphasis supplied) 15. Smt.A.C.Vidhya, learned Government Pleader has made submissions defending the stand, as reflected in the impugned Ext.P-6 memo as well as on the basis of the written instructions, as aforestated. In the instant case, the 3rd respondent has issued the impugned Ext.P-6 memo, the legality of which is to be adjudged herein. Further, most of the related documents like registered Will, previous partition deed etc. are already registered with the 3rd respondent-SRO Thiruvalla. The other excluded co-owner, who is the 4th respondent has also filed a separate affidavit concurring with the course of action taken by the two petitioners in pursuance of the mediation settlement. 16. Having regard to the facts of this case, this Court is of the view that the abovesaid objections raised in Ext.P-6 by the 3rd respondent are not tenable. The 3rd respondent has acted on the premise as if the partition of the property of the deceased father of the petitioners has already been duly effected and effectuated consequent to the execution of registration of Ext.P-1 partition deed dated 30.07.2009. The 3rd respondent has acted on the premise as if the partition of the property of the deceased father of the petitioners has already been duly effected and effectuated consequent to the execution of registration of Ext.P-1 partition deed dated 30.07.2009. A bare consideration of the abovesaid aspects would clearly reveal that all the co-owners concerned are not parties to Ext.P-1 partition deed and that therefore, the said partition deed cannot bind the excluded co-owners (who in the instant case are the 2nd petitioner and the 4th respondent). The 2nd petitioner could have taken the option of litigating her civil suits on merits or by compromise and could have secured a decree from the civil court in that regard for partitioning the property and consequent to such final decree proceedings, it could have been registered only by payment of the applicable stamp duty as prescribed for partition transaction. Instead of opting that course of securing a decree on merits or by compromise, it appears that the parties who are members of the family concerned have decided that they should amicably settle their disputes through mediation, so that there is also expeditious conclusion and quietus to the whole disputes. So instead of proceeding with the option of securing a decree from the civil court, and securing a final decree proceeding for its registration etc., the parties certainly have the right and option to seek mediation settlement and therefore the course of action adopted by the petitioners as stated herein above cannot be said to be improper or impermissible. True that Ext.P-1 partition deed has not disclosed about the excluded co-owners. So Ext.P-1 partition deed will not bind the excluded co-owners. Therefore, the rights of the executants of Ext.P-1 partition deed will be subject to the rights of the excluded co-owners. Therefore, the contention of the 3rd respondent that there is no property left for partition as partition process itself was legally effectuated and finalised or that non-disclosure about excluded co-owners in Ext.P-1 by its executants will take away the rights of the excluded co-owners to seek partition, etc. is a flawed understanding of the scenario by R3. Therefore, the contention of the 3rd respondent that there is no property left for partition as partition process itself was legally effectuated and finalised or that non-disclosure about excluded co-owners in Ext.P-1 by its executants will take away the rights of the excluded co-owners to seek partition, etc. is a flawed understanding of the scenario by R3. The other remaining excluded co- owner viz., the 4th respondent has also filed a separate affidavit as stated herein above, fully concurring with the aforesaid action now being taken by the two petitioners in pursuance of Ext.P-3 settlement deed duly arrived at the mediation settlement facilitated by the Mediation Centre attached to the civil courts at Thiruvalla. In the light of these aspects, this Court is constrained to hold that the impugned stand of the 3rd respondent in Ext.P-6 is illegal and ultra vires. Non-disclosure about excluded co-owners in Ext.P-1 will not take away their rights to seek partition and cannot result in denying lower stamp duty in such subsequent partition on the ground that it can be treated only as conveyance. Reliance placed on the Board of Revenue's instructions dated 17.04.1989 can be of no avail to justify the impugned action in this case. If the 2nd petitioner had secured a final decree in the suit for partition, then the same would have been registered only on payment of lower stamp duty for partition. So the contention of R3 that stamp duty is payable for conveyance in this case is absolutely untenable. The amended provisions of Sec.2(fb) of the definition of family and clause.(a) of Art.42 of the schedule to the Act, which envisages partition among all or any of the members of the family and the legal heirs of the deceased family member, if any, etc. now effective from 1.4.2018 are applicable to the instant case as Ext.P-4 partition deed is executed on 13.8.2018. So those amended provisions will permit partition deed between parties like the 1st petitioner & 2nd petitioner or between 1st petitioner, 2nd petitioner & R-4 or between the 1st petitioner & R-4, as the said parties are combinations or permutations of siblings, siblings & LR of their deceased sibling or executant & LR of deceased sister of the executant, as the case may be, which will come within the ambit of the amended clause (a) of Art.42. So Ext.P-4 deed between the two petitioners, who are siblings (brother & sister) and the proposed deed between the 1st petitioner & R-4, will come within partition deed as envisaged in the amended clause (a) of Art.42. So the course of action proposed as per the settlement arrived at by the parties, in the instant case, will not otherwise entail any loss of revenue for the State. If such deeds had been executed before 1.4.2018, then the legal position would have been different, in view of the unamended provisions in Art.42 and the definition of “family” contained in the then Explanation thereto, which was the subject matter of consideration by the Full Bench of this Court in the reference order dated 16.10.2017 in the case Abdul Muneer v. Sub Registrar, reported in 2018 (1) KLT 238 (FB) 17. In that view of the matter, Ext.P-6 will stand set aside. The only grounds on which the 3rd respondent could have refused to entertain Ext.P-4 as a partition deed would be either on the ground that the property is not partible or that the executants are not co-owners. The 3rd respondent has only placed reliance on the first ground, which this Court has already held to be illegal and ultra vires. It is beyond any dispute that the two petitioners herein who are siblings and the children of late C.G.Chandy, are certainly co- owners as far as the abovesaid property of their father is concerned. 18. Accordingly, it is ordered that the petitioners will present Ext.P-4 partition deed before the 3rd respondent-Sub Registrar, SRO, Thiruvalla, for registration, upon which the said officer will register the said deed as an instrument of partition, if it is otherwise in order, subject to payment of the applicable stamp duty and registration fee. In that regard it is submitted by the petitioners' counsel that Ext.P-4 has already been executed with the requisite stamps and that the prescribed registration fee has already been remitted by Ext.P-5. It is for R-3 (SRO) to verify those aspects. In the process of presenting the original of Ext.P-4 partition deed, the petitioners may also produce a certified copy of this judgment before R-3 SRO, for information and compliance. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.