Allowed

Parameswaran v. the District Registrar

Kerala HC15 Jan 2019WP(C)/497/2019

Case brief

AI extract

What is this about?

The Court held that a subsequent partition deed is not illegal although a prior partition deed existed. It observed that a co-owner named but not signing the first deed was not bound, and since no revenue loss occurred, the demand for additional fees was set aside.

What did the court decide?

The impugned decision of the District Registrar ordering payment of further stamp duty and registration fee is set aside.

Parameswaran Vs the District Registrar — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940

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WP(C).No. 497 of 2019

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PETITIONER:

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PARAMESWARAN AGED 80 YEARS S/O KUNJIKRISHNAN, PALLIKARA HOUSE, THALAPPILLY TALUK, KATTAKAMBAL P.O., THRISSUR-680 544.

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BY ADVS. SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS SRI.A.J.RIYAS SRI.G.BAIJURAJ

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RESPONDENTS:

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THE DISTRICT REGISTRAR REGISTRATION DEPARTMENT, CHEMBUKAVU, THRISSUR-20.

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SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 497 of 2019

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(CR)

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ALEXANDER THOMAS, J.

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===========================

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W.P(C)No.497 of 2019

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=========================== Dated this the 15^th day of January, 2019

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JUDGMENT

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The prayers in the above Writ Petition (Civil) are as follows:

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“I. Issue a Writ pf Certiorari or any other appropriate Writ, Order or Direction to quash Exhibit-P3;

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II. Declare that the action of the respondent in issuing Exhibit-P3 notice on wrong assumption; without any authority of law and hence liable to be declared as invalid;

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and

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III. to issue such other Writ, order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of this case.”

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The petitioner and his three brothers viz., Vasu,

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Velayudhan and Pushpakaran @ Appu are the legal heirs/legal representatives of their deceased father. After the death of the father, the petitioner (Parameswaran) and his brothers, Vasu, Velayudhan and Pushpakaran @ Appu, who are said four legal representatives of the deceased predecessor, have been shown as executants in Ext.P-2 deed of partition, which was drawn up for

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partitioning the property of the deceased father. Respective shares have also been duly allotted to all the four legal representatives, who are formally named as executants in Ext.P-2 partition deed. All the co-sharers, except the abovesaid Pushpakaran @ Appu have duly signed and executed Ext.P-2 deed. Ext.P-2 partition deed was registered as document No.119/1992 on 20.01.1992 before the SRO, Akkikkavu. The abovesaid Pushpakaran @ Appu had thereafter never formally signed and executed Ext.P-2 deed. But he is shown as one of the co-sharers and his share of property has also been duly allotted thereunder.

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Later, the abovesaid Vasu had died and it is stated that his legal representatives are Shajan, Sheeja, Shila and Sarada. It is stated that when Sri.Pushpakaran @ Appu had requested that his share is to be duly allotted, so as to register such document, as such right could be claimed by him only on the basis of a registered deed to which he is an executant and signatory, etc. It is stated that thereupon the petitioner and his other brothers as well as the legal representatives of the deceased brother Vasu were advised to execute yet another partition deed. Accordingly, the petitioner

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(Parameswaran), Velayudhan, Pushpakaran @ Appu (who is not a signatory of Ext.P-2 partition deed) and the abovesaid Shajan, Sheeja, Shila and Sarada, who are the legal representatives of the deceased Vasu, had executed Ext.P-1 partition deed dated 01.06.2017 and the same was registered as deed No.1094/2017 before the SRO, Akkikkavu, whereby the respective shares have been allotted to the deed of the abovesaid executants of Ext.P-1 registered partition deed dated 01.06.2017. It is not in serious dispute that the entire stamp duty (as referred to in Ext.P-5) and registration fee has been duly paid for Ext.P-2 partition deed No.119/1992, in respect of the shares of all the co-owners mentioned therein, including the non-executant co-owner Sri.Pushpakaran. So also, it is not under serious dispute that the entire stamp duty and registration fee for the execution of Ext.P-1 partition deed No.1094/2017 dated 01.06.2017 has also been paid and registration fee has been paid thereon @1% of the fair value of the entire subject property is concerned in that partition deed and it is not restricted to the individual share of the nonexecutant/excluded co-owner Sri.Pushpakaran. However, the

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petitioner and the other executants of Ext.P-1 deed have omitted to mention therein about the execution and registration of the previous deed as per Ext.P-2 deed No.119/1992 of SRO, Akkikkavu.

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Later, the respondent-District Registrar has issued the impugned Ext.P-3 proceedings dated 12.11.2018 ordering therein that the executants of Ext.P-1 deed dated 01.06.2017 have not disclosed about the execution and registration of the previous deed as per Ext.P-2 and that execution of a subsequent partition deed, as per Ext.P-1 dated 01.06.2017 as between the co-owners, who have already executed and registered previously Ext.P-2 partition deed, is illegal and improper and further that the petitioner should pay further amount of stamp duty coming to Rs.1000/- and registration fee coming to Rs.51,020/-, along with interest thereon @18% p.a. from 01.06.2017 (date of execution of Ext.P-1 deed), etc. and in the event of the non-payment of the said demanded amounts, revenue recovery proceedings will be set in motion, etc. It is this proceedings at Ext.P-3 dated 12.11.2018 issued by the respondent-District Registrar, that is under challenge in this Writ Petition.

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Going by the admitted facts and pleadings in this case all the co-owners had been formally shown as executants in Ext.P-2 partition deed No.119/1992 and shares of all the co-owners have also been duly allotted to them as per Ext.P-2. However, one of the co-owners viz. Sri.Pushpakaran had not formally signed and executed Ext.P-2 deed. Dealing with a similar scenario, this Court has already rendered judgment dated 09.01.2019 in W.P(C)No.41002/2018. Sec.24 of the Registration Act, 1908, which deals with documents executed by several persons at different times, clearly stipulates and mandates that where there are several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution. Thereby in such a case, a person like Pushpakaran, who has not signed Ext.P-2 partition deed can avail the benefit of Sec.24 and can approach the Sub-Registrar concerned, in whose custody the original deed is kept, so as to permit him to formally execute and sign the said partition deed, wherein he is already shown as an executant and then to seek its re-registration, within an outer time limit of four

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months of such last execution. It has also been held in the said judgment dated 09.01.2019 in W.P(C)No.41002/2018 that in such case, in view of the mandatory provisions contained in Sec.2(b) and Sec.17 of the Kerala Stamp Act, 1959, the chargeability of a deed like Ext.P-2 partition deed for payment of the requisite stamp duty is to be determined with reference to the date of the first execution of the document, where there are more than one executant. Hence it was held that if the stamp duty has been duly paid at the first execution of a document like Ext.P-2, which is covered by Sec.24 of the Registration Act, then no further stamp duty is payable. However, it has also been held in the said judgment in W.P(C)No.41002/2018 that in such case, the executant who seeks re-registration of the deed under Sec.24 of the Registration Act, will have to pay registration fee as prescribed under Secs.80 & 78 of the Registration Act, 1908. That in a case for partition as in the instant one, then it was held therein that the applicable registration fee would be @1% of the notified fair value of the property which is specifically allotted to such new executant and not the entirety of the property, which was the subject matter of the original partition.

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So in the instant case, the petitioner and the other legal representatives of the deceased predecessor, could have easily sought the benefit of Sec.24 of the Registration Act, 1908 and the non-executant of Ext.P-2 deed, Shri.Pushpakaran could have availed the benefit of Sec.24 and in such a scenario, no stamp duty was payable and registration fee was payable only @1% of the notified fair value in respect of the property allotted to such new executant. For reasons which are best known to the petitioner, this course of action was not availed by him presumably on account of the advice received by him and on the other hand, he has chosen an unnecessary route of registering a new partition deed as per Ext.P-1, wherein all the legal representatives of the deceased predecessor are executants and their respective shares have also been shown therein. In this process, there cannot be any doubt that no loss of revenue has been caused by the action of the petitioner and the other executants, as they have paid stamp duty and registration fee for the execution of Ext.P-1 deed and registration fee has been paid thereon @1% of the fair value of the entire subject properties concerned in that partition deed.

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Therefore, in this process, the respondent-State authority have only gained financially and no loss of revenue whatsoever has been caused to the State.

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Then the next issue is as to whether such a course of action is available to executants like the petitioner to altogether ignore the previous partition deed as per Ext.P-2, so as to execute a new partition deed as per Ext.P-1. Similar issue has been considered by this Court in Ext.P-4 judgment dated 07.09.2018 in W.P(C)No.28128/2018, in the case between Biju C.Alex and another v. State of Kerala and others reported in 2018(4) KHC 820 = 2018(4)KLT SN.54 (case No.62)= 2018(4) KLJ 435.

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In the said case, two of the co-owners were totally excluded from the partition deed, that was executed earlier between the other executants, whereby even the names of the excluded co-owners were not mentioned in the deed and no share whatsoever has been allotted to such excluded co-owners and the entire property was sought to be partitioned among the other coowners. Later, one of the excluded co-owners had filed a civil suit

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before the Civil Court concerned seeking partition of the

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property on the premise that already executed partition deed will not bind the excluded co-owners. During the process of litigation, the parties had arrived at a settlement through the mediation centre attached to the Civil Court concerned and based on the terms and conditions of the mediation settlement deed, it was decided that allotments made to some of the co-owners may not be disturbed and allotments made to the other co-owners as per the previous deed should be disturbed so as to accommodate the claims of the excluded co-owners and thereafter, a partition deed was sought to be drawn up as between the co-owners whose allotted shares thus sought to be disturbed. The Sub Registrar took up the objection that such a second partition deed cannot be understood as an instrument of partition under Section 2(k) on the premise that the property has already been partitioned due to the execution of registration of the first partition deed irrespective as to the effect of exclusion of some of the co-owners thereto. This Court clearly held in the said judgment that the said objection of the respondent Sub Registrar therein is legally untenable and that since some of the co-owners have been excluded from the said

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partition deed, then such partition deed cannot bind the excluded co-owners and the partition process cannot be said to be finalized and effectuated in the manner known to law merely on account of the execution of registration of a previous partition deed among some of the co-owners after excluding some others etc. It will be profitable to refer to the relevant portions of paragraph 16 of the judgment, which read as follows:

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"Having regard to the facts of this case, this court is of the view that the above said objections raised in Exhibit-P6 by the 3^rd respondent are not tenable. The 3^rd 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 and registration of Exhibit-P1 partition deed dated 30/07/2009. A bare consideration of the above said aspects would clearly reveal that all the coowners concerned are not parties to Exhibit-P1 partition deed and that therefore, the said partition deed cannot bind the excluded co-owners........ Therefore true that Exhibit-P1 partition deed has not disclosed about the excluded co-owners. So the Exhibit-P1 partition deed will not bind the excluded co-owners...... Therefore the contention of the 3^rd respondent that there is no property left for partition as partition process itself was legally effectuated and finalized or that the non disclosure about excluded co-owners in Exhibit-P1 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 3^rd respondent... In the light of these aspects, this Court is constrained to hold that the impugned stand of the 3^rd respondent in Exhibit-P6 is illegal and ultra vires. Non disclosure about excluded co-owners in

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Exhibit-P1 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."

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Hence, in view of the said legal position, it is only to be

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held that Ext.P2 partition deed No.119/92 cannot bind the excluded co-owner Sri. Pushpakaran. Unlike the case in Ext.P4 judgment, the instant one where the so called excluded co-owner has been specifically named as one of the executants/co-sharers in Ext.P2 deed and his share has also been duly allotted thereunder. However, he has not formally signed and executed Ext.P2 partition deed. Therefore, so long as he has signed and executed Ext.P2 partition deed, the same cannot bind him. In a case like the instant one the parties more particularly Sri. Pushpakaran had two options. One was the easy option of availing the benefit of Section 24 which would have been even financially more beneficial to the parties like the petitioner and the other co-sharers. Merely because Sri. Pushpakaran has not chosen to avail the benefit of Section 24 of the Registration Act, it cannot be said that further partition is not permissible in law. For instance, certainly in cases where one of the co-owners/co-sharers could be

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named as co-sharer and allottee in the deed of partition drawn up by the other co-owners and the share of such person may also be allotted in the partition deed. But due to non-availability he may not sign and execute the document. So also, there could be many of case, where such an excluded person can take up the stand that he is not agreeable to the formula of actual partitioning of the properties and allotments made by the other co-owners. Therefore, in such a case he cannot be compelled to seek the benefit of Section 24. Section 24 is, therefore, certainly optional and it is for the so called excluded co-owner to choose whether he should avail that benefit. Therefore, in a case where such an excluded co-owner takes the stand that he is not agreeable to the modalities of allotments made in the previous deed, then the only other option that may be open to such a co-sharer would be to file a civil suit seeking partitioning of the property. Such a common law remedy of suit for partition is certainly available to such a litigant on the fundamental premise that the previous partition deed will not bind him. Since the partition deed has been drawn up by the other co-owners without the volition and consent of the

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excluded person, he can certainly contend that the mere fact that a formal deed of partition has been executed and registered will not finalise and effectuate the process of partitioning of the property in the manner known to law. Therefore, certainly, the Civil Court has jurisdiction to entertain the suit for partition in respect of such a plea of such an excluded co-owner and decide the matter in accordance with law. So the point to be appreciated is that such a mere process of drawing up a formal partition deed within some of the co-owners will not amount to finalization and effectuation of the process of partition between all the co-owners in the manner known to law. Since that is the elementary legal position, then certainly the parties, can re-work out the modalities for sharing the property and may draw up a fresh process of partition which may be either through the court process or on the basis of their volition. It cannot be said that such a process can be done only through the litigative mechanism and where the parties/family members come together and decide that it is not proper for them to litigate and that they should burry their differences and should voluntarily execute a deed for allotting share to all to the satisfaction of the

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excluded co-owners, then such a process is certainly available in law. Therefore, it cannot be said that execution and registration of Ext.P1 deed is in any manner illegal or improper. But, certainly, in the facts of this case, which was rather not wise for the petitioner and the other legal heirs of the deceased predecessor to go for this arduous process of executing and registering a new deed as per Ext.P1 and the more sensible and economically better option for them would have been for the non-executant co-owner Sri.Pushpakaran to execute Ext.P-2 original partition deed and then seek its re-registration in terms of Section 24 as aforestated and in which contingency the financial burden casts on them is also much more low compared to the present course of action. Certainly there is one aspect of the matter in as much as the parties have not mentioned and disclosed about the execution of Ext.P2 deed No.119/1992 in Ext.P1 deed No.1094/2017. Such nondisclosure would certainly have been very crucial and serious, if which had the effect of causing loss of revenue to the State. In the instant case, as aforestated, there is no question of loss revenue to the State and therefore, the non-disclosure is not really very

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material. Therefore, the stand taken by the respondent District Registrar in the impugned Ext.P3 is illegal.

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Accordingly, the impugned decision of the respondent

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District Registrar in Ext.P3 proceedings dated 12.11.2018 will stand set aside .

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With these observations and directions, the above Writ Petition (civil) will stand disposed of.

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Sd/- ALEXANDER THOMAS, JUDGE

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vgd/acd/19.01.19

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY NO.1094/20	OF 17 OF	THE SAL AKKIKAV	E DEED B U SUB REGI	EARING STRY.
EXHIBIT P2	CERTIFIED 20.1.1992 AKKIKKAVU	COPY BEA SUB R	OF THE RING EGISTRY.	DOCUMENT NO.119/92	DATED OF
EXHIBIT P3	TRUE COY 12.11.2018 ISSUED BY	OF BEAR THE R	THE ING NO. ESPONDEN	NOTICE INS 4-186 T.	DATED 8/2018
EXHIBIT P4	TRUE COP 7.9.2018 I	Y OF N WPC	THE 28128/2	JUDGMENT 018.	DATED
EXHIBIT P5	TRUE COP 12.6.2017.	Y O	F THE	ORDER	DATED

Parameswaran v. the District Registrar

Case brief

What is this about?

What did the court decide?

Parameswaran v. the District Registrar

Case brief

What is this about?

What did the court decide?

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