Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE TUESDAY, THE 02ND DAY OF JUNE 2020 / 12TH JYAISHTA, 1942 PETITIONER: VASU (DIED) AGED 77 YEARS S/O.LATE PANATTIL KRISHNAN, MAPRANAM, MADAYIKONAM P.O., IRINJALAKUDA, TRICHUR DISTRICT. ADDL.P2 SANTHA, AGED 69 YEARS, W/O LATE VASU, MAPRANAM, MADAYIKONAM P.O., IRINJALAKUDA, TRICHUR DISTRICT. (LRS OF 1ST PETITIONER IS IMPLEADED AS THE ADDL.2ND PETITIONER AS PER ORDER DATED 27.03.2013 IN I.A.NO.4681/13) BY ADV. SRI.JESWIN P.VARGHESE RESPONDENT: 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REGISTRATION, SECRETARIAT, TRIVANDRUM- 695 001. 2 THE DISTRICT REGISTRAR (GENERAL) COLLECTORATE, AYYANTHOLE, TRICHUR, PIN-680003. 3 THE SUB REGISTRAR SUB REGISTRAR'S OFFICE, IRINJALAKUDA, TRICHUR-686 502. BY GOVERNMENT PLEADER ADV. SRI.M R DHANIL GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 2nd day of June 2020 This writ petition was originally filed by Sri. Vasu who died pending writ petition. Thereafter, his legal heir was impleaded as additional 2nd petitioner namely Santha, the widow of Vasu.
2. The matter is related to levy of stamp duty for a partition
deed. Late Vasu along with 48 others had executed a partition deed on 03.11.2011 for partition of the property belonged to Kunjunni Krishnan. The parties to the deed are the grandchildren and children of deceased grandchildren.
3. The partition deed was executed in a stamp paper, on a
concessional rate which is applicable to 'family'. Pointing that great- grandchildren could not come within the ambit of family, instrument was impounded. Challenging this order, the petitioner approached this Court.
4. As seen from the Article 42 of Schedule of Kerala Stamp Act, 1959, stamp duty payable on instrument executed between members of family is on a concessional rate. In all other cases, levy is on a higher rate.
5. The definition of the family at the time of the execution of the deed was as follows:-
“Family means father, mother, husband, wife, son, daughter, grandchildren, brother, sister and the legal heirs of the deceased children if any, as the case may be.” This was with effect from 19.07.2011 as per the Act 16/2011. Thereafter, this definition underwent substitution more than one occasion. The question is whether great-grandchildren could come within the meaning of family or not.
6. The reason for impounding the instrument was on the
ground that there was no reference to great-grandchildren of the deceased in the definition of family. This was on an erroneous assumption that various permutation and combination will have to be worked in relation with a deceased person. No where in the definition of family, it was stipulated that such permutation and combination have to be reckoned in relation with the person to whom the property originally belonged, eventhough, subject of the partition is the property belonged to such person. The idea and object of explanation is to give concession to family members for execution of the partition deed , if they remain relation, connecting them to subject of partition deed. Therefore, what is to be considered as only a relation between
parties as referred as a family under the explanation in connection with subject of the deed. If the children of the deceased family member also included in such a partition deed, the relationship need not be stretched too far by relating them the original property owner who is the great- grandfather. What is to be considered as only interse relationship between the parties to such a deed. Thus, if they form part of a group of family by standing into a relation as defined in the explanation, they would be entitled for the benefit.
7. The parties to the partition deed are within the family.
They are the grandchildren and legal heirs of deceased children of late Kunjunni Krishnan. Legal heir of the deceased children would include in its fold all such persons treated as great-grandchildren. In such circumstances, the petitioner is entitled for concessional rate of stamp duty applicable. Accordingly, the impugned order is set aside. The document shall be released to the petitioner without any delay. Ordered accordingly. The writ petition is allowed. No costs. Sd/- A.MUHAMED MUSTAQUE JUDGE
SAS/02/06/2020 APPENDIX EXHIBIT P1 A TRUE COPY OF THE PARTITION DEED EXECUTED BY THE PETITIONER AND 48 OTHERS DATED 03.11.2011 EXHIBIT P2 A TRUE COPY OF RECEIPT ISSUED BY 3RD RESPONDENT FOR RS.1,19,736/- DATED 03.11.2011 EXHIBIT P3 A TRUE COPY OF ORDER NO.INS3-5295/2011 ISSUED BY THE 2ND RESPONDENT DATED 21.12.2011 EXHIBIT P4 A TRUE COPY OF THE GENEALOGY OF THE FAMILY
OF DECEASED KUNJUNNI KRISHNAN, WHO IS THE TITLE HOLDER OF THE PROPERTY DESCRIBED IN EXT.P1 PARTITION DEED. RESPONDENTS' EXHIBITS NIL //TRUE COPY// P.A. TO JUDGE