Dismissed

The State of Kerala v. Jose

Kerala HC5 Jul 2013WA/975/2013

Case brief

AI extract

What is this about?

In a writ appeal challenging a single judge's order on stamp duty, the High Court of Kerala held that a partition between a living brother and the legal heir of a deceased brother qualifies as a family partition under the Kerala Stamp Act, upholding the benefit of lesser stamp duty.

What did the court decide?

The appeal is dismissed upholding the judgment of the learned Single Judge with no costs.

The State of Kerala Vs Jose — Property and Title | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR &

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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FRIDAY, THE 5TH DAY OF JULY 2013/14TH ASHADHA, 1935

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W.A.No.975 of 2013

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AGAINST THE JUDGMENT IN W.P.(C).No.29308/2012-K DATED 20-05-2013 OF HIGH COURT OF KERALA.

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APPELLANTS/ RESPONDENTS IN THE WRIT PETITION:-

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THE STATE OF KERALA, REPRESENTED BY SECRETARY, REGISTRATION DEPARTMENT, SECRETARAIT, TRIVANDRUM.

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THE DISTRICT REGISTRAR, KOTTAYAM - 686 001.

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BY GOVERNMENT PLEADER SRI.P.I.DAVIS.

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RESPONDENT/ PETITIONER IN THE WRIT PETITION:-

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JOSE, S/O.THOMAS, RESIDING AT MEALUKUNNEL HOUSE, PARAMBAIM, KOTTAYAM - 686 613.

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BY SRI.S.ANANTHAKRISHNAN.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

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vku/

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Manjula Chellur, C.J. & K.Vinod Chandran, J.

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W.A.No.975 of 2013

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Dated this, the 5^th day of July, 2013

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JUDGMENT

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K.Vinod Chandran,.J.

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The definition of “family” given in the Explanation to Serial No.42 of the Schedule to the Kerala Stamp Act, 1959 (hereinafter referred to as “the Stamp Act”) as amended by Finance Act, 2011, is again brought up for consideration in the above Writ Appeal filed by the State. Infact this Court had, in an earlier judgment reported in State of Kerala and others v. Manuel [2013 (1) KHC 765 (DB) = 2013 (1) KLT 825], clearly found that the amendment to the definition of “family” would take in any permutation and combination of persons mentioned therein and they would be entitled to have a partition claiming the benefit of lesser stamp duty as is provided in Serial No.42(i) of the Schedule to the Stamp Act.

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The brief facts to be noticed in the present case is that one Thomas and Varkey were the joint owners of a property having an extent of 2.27 acres comprised in Survey No.810/3 of

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WA.No.975/2013

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Kaduthuruthy Village in Kottayam District. It was purchased in their names by their father by virtue of Exhibit P1 sale deed dated 25.03.1964 and since then, they had been jointly enjoying the property. Thomas died, leaving his share of the property to his only son by a bequest. Varkey and the respondent/writ petitioner, being the legal heir of the deceased Thomas, decided to partition the property by metes and bounds and Exhibit P4 document was executed on 09.11.2012. The State's contention is that the said transaction is covered by the decision reported in District

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Registrar v. Bahuleyan [2013 (1) KLT 831] .

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The only similarity we can discern in Bahuleyan's

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case ( supra ) and the instant case is that both involved a bequest; but the facts are clearly distinguishable and infact the above cited decision was distinguished in Manuel's case ( supra ). Here two brothers were owning the property jointly. If both were alive and partition by metes and bounds were effected, then it would definitely be within Serial No.42, i.e., a partition between family members. When one brother dies and his legal heir stands in the shoes of the deceased, can it be said that a partition effected between a legal heir of a brother and his uncle would take it out of the definition of family partition? We are of the definite opinion that

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WA.No.975/2013

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it will not. We noticed in Manuel's case ( supra ) that it cannot be gainsaid that only if a father and mother are alive the children could be considered as having the status of sons and daughters and otherwise they would only be brothers and sisters. Any permutation and combination referred to in the judgment of Manuel's case ( supra ) would take in a brother and a legal heir of a deceased brother. If a partition can be effected between a person and the legal heir of the deceased children of a deceased brother (brothers and legal heirs of children), then it would be absurd to say that it cannot be executed between a person and the legal heir of his deceased brother.

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We do not find any merit in the appeal. We uphold the judgment of the learned Single Judge and dismiss the appeal, however, with no costs.

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Sd/Manjula Chellur, Chief Justice

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Sd/K.Vinod Chandran, Judge.

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vku/

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( true copy )

The State of Kerala v. Jose

Case brief

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The State of Kerala v. Jose

Case brief

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