Allowed

State of Kerala v. Kunjumalu Pattathiar

Kerala HC18 Jan 2021WA/96/2021

Case brief

AI extract

What is this about?

This judgment allows writ appeals filed by a group of individuals against a Sub Registrar's order demanding conveyance stamp duty for a cancellation deed. The Court held that the Registrar lacks jurisdiction to adjudicate on stamp duty disputes or the validity of the deed, which must be referred to the Collector under Section 31 of the Kerala Stamp Act, 1959.

What did the court decide?

Appeals allowed; Impugned order quashed; Direction to refer deed to Collector for adjudication of stamp duty; Collector to decide within three weeks.

State of Kerala Vs Kunjumalu Pattathiar — Cheque Dishonour | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

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WA.No.1656 OF 2020

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AGAINST THE JUDGMENT DATED 24.02.2020 IN WP(C) 4302/2020(K) OF HIGH COURT OF KERALA

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APPELLANT/PETITIONERS:

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1 KUNJUMALU PATTATHIAR, AGED 70 YEARS W/O. LATE KUNJU EZHUTHACHAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

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2 BABY, AGED 55 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

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3 KUTTAN,

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AGED 54 YEARS

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S/O. LATE KUNJU EZHUTHACHAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

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4 KRISHNANKUTTY, AGED 51 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

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5 MOHANAN, AGED 46 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

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6 RAJALAKSHMI, AGED 42 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD678 592.

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: 2:

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W.A. Nos. 1656/2020 &

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96/2021

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7 SATHI C.R., AGED 44 YEARS W/O. LATE MANIKANDAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

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8 RESHMI K.A, D/O. LATE MANIKANTAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

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9 SREENANDU, D/O. LATE MANIKANTAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

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BY ADV. SRI.CIBI THOMAS

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1.

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2 THE DISTRICT REGISTRAR, DEPARTMENT OF REGISTRATION, PALAKKAD-678 001.

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3 THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, PARALI, PALAKKAD DISTRICT-678 612.

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4 THE VILLAGE OFFICER, MUNDOOR VILLAGE OFFICE, PALAKKAD-678 592.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.01.2021, ALONG WITH WA.96/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. Nos. 1656/2020 & 96/2021

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: 3 :

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

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WA.No.96 OF 2021

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AGAINST THE JUDGMENT DATED 24.02.2020 IN WP(C) 4302/2020(K) OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS IN W.P.(C):

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 THE DISTRICT REGISTRAR, DEPARTMENT OF REGISTRATION, PALAKKAD-678 001

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3 THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, PARALI, PALAKKAD DISTRICT-678 612

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4 THE VILLAGE OFFICER, MUNDOOR VILLAGE OFFICE, PALAKKAD-678 592

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BY SRI. ARAVINDAKUMAR BABU, SR. GOVERNMENT PLEADER

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RESPONDENTS/PETITIONERS IN W.P.(C):

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1 KUNJUMALU PATTATHIAR AGED 70 YEARS

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W/O. LATE KUNJU EZHUTHACHAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

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2 BABY,

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AGED 55 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

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W.A. Nos. 1656/2020 & 96/2021

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: 4 :

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3 KUTTAN, AGED 54 YEARS

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S/O. LATE KUNJU EZHUTHACHAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

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4 KRISHNANKUTTY, AGED 51 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUNDANUR, PALAKKAD-678 592

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5 MOHANAN, AGED 46 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

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6 RAJALAKSHMI, AGED 42 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

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7 SATHI C.R, AGED 44 YEARS W/O. LATE MANIKANDAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

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8 RESHMI. K.A, D/O.LATE MANIKANDAN, KIZHAKKETHIL HOUSE,MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

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9 SREENANDU, D/O.LATE MANIKANTAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

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SRI.CIBI THOMAS FOR RESPONDENTS

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.01.2021, ALONG WITH WA.1656/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. Nos. 1656/2020 & 96/2021

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: 5 :

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Dated this the 18^th day of January, 2021.

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JUDGMENT

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SHAJI P. CHALY, J.

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The writ appeals are filed by the writ petitioners and the respondents in the writ petition challenging the judgment of the learned single Judge dated 24.02.2020 in W.P.(C) No. 4302 of 2020. The reliefs sought for in the writ petition was mainly for quashing Ext. P6 order dated 11.12.2019, which read thus:

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Issue a writ of certiorari calling for the records leading to Ext. P6 and quash the original of the same.

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Issue a writ of mandamus or any appropriate writ, order or direction directing the respondents to take steps to register Ext. P4 cancellation deed expeditiously.

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To declare that the stamp duty payable for executing a registration deed is only Rs.500/- as provided under Article 15 of Kerala Stamp Act.

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The learned single Judge, after taking into account the facts and circumstances and the law involved, has entered into the following observations, findings and conclusions:

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The partition deed involves severance of interest in the property. If there is a mistake on facts, this deed become void or voidable at the option of the executants. Appreciation of these facts can be done only by a civil court. The Registering Authority cannot appreciate and declare that a partition deed can be cancelled. As far

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W.A. Nos. 1656/2020 & 96/2021

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: 6 :

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as the Registrar is concerned competency of the parties alone need to be considered. When there is a partition deed executed by the parties concerned, the Registrar has to assume that there is a severance of interest. Whether the parties have acted upon the partition deed or not is a matter of appreciation of evidence. That cannot be done by the Registrar. If the Sub Registrar allows cancellation deed to be registered, it pre-suppose that the partition deed was not acted upon. That is not within the power of the Registrar.

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If the cancellation deed is allowed to be registered it would result a serious repercussion on the rights and interest of the parties. That is the reason, law contemplates an adjudication by the civil court to declare it is void or voidable by invoking under Section 31(1) of the Specific Relief Act, 1963. Section 31 (1)reads thus:-

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“Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order to be delivered up and cancelled.”

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A proper remedy in such circumstances is to approach civil court to declare the cancellation deed is void or voidable and thereafter, forward the same to the Registering Authority to register as a follow up such procedure, contemplated under Section 31 (2) of the Specific Relief Act.

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The demand made in Ext.P6 is unsustainable. It no way would attract fees applicable for conveyance. The question is whether a cancellation deed can be registered or not without order of the civil court. Instead of answering the same, an attempt is being made to impound on the documents and levy charges applicable for

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W.A. Nos. 1656/2020 & 96/2021

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: 7 :

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conveyance. Therefore, the demand made in Ext.P6 is set aside.

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In view of the fact that all the parties have agreed to cancel the deed, the civil court shall dispose the civil suit expeditiously as possible, in the event such suit is filed by the petitioners, within a period of six months.”

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It is, thus, challenging the legality and correctness of the said judgment, rival parties have preferred these appeals.

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The paramount contention advanced by the writ petitioners/appellants is that there is no bar for cancelling the document on the basis of the consensus arrived at between the parties to the document. Further, according to the writ petitioners, even the respondents do not have such a case and their only dispute is regarding the quantum of stamp duty payable. That apart, it was submitted that Ext. P4 cancellation deed was presented when the Village Officer, Mundoor Village, Palakkad, issued Ext. P2 communication dated 24.08.2019 when application was filed for allotment of thandaper account, that the re-survey number and the thandaper of the property are shown incorrectly, and further that the extent of property in possession of parties is seen more than what is shown in the schedule. It was, therefore, stated that the thandaper account will be allotted on production of the partition deed after curing the defects. Therefore, the sum and substance of the contention of the writ petitioners was that there is no other

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W.A. Nos. 1656/2020 & 96/2021

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: 8 :

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alternative than to cancel the partition deed in order to rectify the mistakes so as to have a quietus to the whole issue.

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On the other hand, the appeal is preferred by the Government basically contending as to whether the objection raised by the Sub Registrar in Ext. P6 impugned order is justified, in view of Section 31 of the Kerala Stamp Act, 1959 ('Act, 1959' for short).

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We have heard the learned counsel for the writ petitioners Sri. Cibi Thomas and the learned Senior Government Pleader Sri. Aravindakumar Babu for the appellants/respondents, and perused the pleadings and materials on record.

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In our view, a detailed and elaborate discussion of the question raised by the parties in the appeal is not required, since the appellants have virtually agreed that Ext. P6 impugned order passed by the Sub Registrar and as extracted above is not in terms of Section 31 of the Act, 1959. For convenience, Sections 31 and 32 of Act, 1959 are extracted hereunder:

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Adjudication as to proper Stamp : (1) When any instrument, whether executed or not and whether previously stamped or not is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty, if any, with which it is chargeable, and pays a fee of fifty rupees the Collector shall determine the duty, if any, with which, in his judgment, the instrument is chargeable.

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W.A. Nos. 1656/2020 & 96/2021

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: 9 :

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(2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application, until such abstract and evidence have been furnished accordingly:

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Provided that --

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(a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding except in any enquiry as to the duty with which the instrument to which it relates is chargeable; and

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(b) every person by whom any such evidence is furnished shall, on payment of the full duty with which the instrument to which it relates, is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid.

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Certificate by Collector : (1) When an instrument brought to the Collector under Section 31, is in his opinion, one of a description chargeable with duty, and

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(a) the Collector determines that it already fully stamped, or

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(b) the duty determined by the Collector under Section 31, or such a sum as, with duty already paid in respect of the instrument, is equal to the duty so determined, has been paid, the Collector shall certify by endorsement on such instrument that the full duty (stating the amount) with which it is chargeable has been paid.

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W.A. Nos. 1656/2020 & 96/2021

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: 10 :

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(2) When such instrument is, in his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable.

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(3) Any instrument upon which an endorsement has been made under this section shall be deemed to be duly stamped or not chargeable with duty as the case may be; and, if chargeable with duty, shall be receivable in evidence or otherwise, and may be acted upon and registered as if it has been originally duly stamped. Provided that nothing in this section shall authorize the Collector to endorse:

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(a) any instrument executed or first executed in India and brought to him after the expiration of one month from the date of its execution, or first execution, as the case may be;

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(b) any instrument executed or first executed out of India and brought to him after the expiration of three months after it has been first received in the State; or

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(c) any instrument chargeable with the duty of [twenty paise] or less than [twenty paise] when brought to him, after the execution thereof on paper not duly stamped.”

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On an analysis of Section 31 of Act, 1959, it is clear that if and when there is a dispute with respect to the stamp to be affixed on a document, it is to be necessarily brought to the notice of the Collector in contemplation of the said provision and the Collector alone is vested with powers to determine the duty, if any, with which

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the instrument is chargeable. Reading together the provisions of Sections 31 and 32, it is clear that Ext.P6 order passed by the Sub

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W.A. Nos. 1656/2020 & : 11 : 96/2021

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Registrar cannot be sustained under law.

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In that view of the matter, the appeals are allowed by quashing Ext.P6 and there will be a direction to the Sub Registrar, Office of the Sub Registrar, Parali, Palakkad District to refer Ext.P4 deed of cancellation submitted by the writ petitioners to the Collector for adjudication of the stamp duty in accordance with the provisions of the Act, 1959 at the earliest, and at any rate, within a week from the date of production of a copy of this judgment, and the Collector functioning under Section 31 of the Act, 1959 is directed to take a decision within three weeks thereafter.

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Needless to say, the appeals are allowed to that extent and

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the parties will be guided by the decision taken by the Collector as directed above.

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sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/- SHAJI P. CHALY, JUDGE.

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State of Kerala v. Kunjumalu Pattathiar

Case brief

What is this about?

What did the court decide?

State of Kerala v. Kunjumalu Pattathiar

Case brief

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What did the court decide?

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