Allowed

Kuttan, v. State of Kerala

Kerala HC15 Nov 2022WP(C)/3604/2022

Case brief

AI extract

What is this about?

The Court allowed a writ petition where petitioners challenged a demand for stamp duty on a cancellation deed executed regarding a partition deed. Relying on precedents, the Court held Article 15 of the Kerala Stamp Act Schedule applies instead of Article 22 (conveyance). The registrar's order was quashed and they were directed to register the deed on payment of duty under Article 15.

What did the court decide?

Exhibit P9 order quashed; direction to 3rd respondent to register cancellation deed on payment of stamp duty under Article 15.

Kuttan, Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2022)

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W.P.(C)No.3604/2022

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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 T.R.RAVI

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TUESDAY, THE 15^TH DAY OF NOVEMBER 2022/24TH KARTHIKA, 1944

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WP(C) NO. 3604 OF 2022

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PETITIONERS:

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1 KUTTAN, AGED 55 YEARS S/O. LATE KUNJU EZHUTHACHAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

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2 BABY, AGED 56 YEARS D/O. LATE KUNJU EZHUTHACHAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD 678 592.

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3 KRISHNANKUTTY, AGED 52 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD 678 592.

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4 MOHANAN, AGED 47 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD 678 592.

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5 RAJALAKSHMI, AGED 48 YEARS KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD 678 592.

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6 SATHI C.R, AGED 45 YEARS W/O. LATE MANIKANDAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

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

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8 SREENANDU, D/O. LATE MANIKANTAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD 678 592. BY ADVS. SRI CIBI THOMAS SRI G.PRATHAP CHANDRA

W.P.(C)No.3604/2022

RESPONDENTS:

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

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2 THE DISTRICT COLLECTOR, PALAKKAD, CIVIL STATION, PALAKKAD, PIN 678 001.

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3 THE DISTRICT REGISTRAR, DEPARTMENT OF REGISTRATION, PALAKKAD 678 001.

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

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5 THE VILLAGE OFFICER, MUNDOOR VILLAGE OFFICE, PALAKKAD-678 592. BY SMT.DEEPA V., GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.6.2022, THE COURT ON 15.11.2022 DELIVERED THE

FOLLOWING:

W.P.(C)No.3604/2022

T.R. RAVI, J.

W.P.(C)No.3604 of 2022

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Dated this the 15 th day of November, 2022

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JUDGMENT

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The petitioners are children and grandchildren of late Kunju Ezhuthachan and Kunju Malu Pattathiar. Ext. P1 partition deed had been executed on 2.2.1999, when the above-said grandparents/parents were alive, and registered

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as Document No.379 of 1999 of SRO Parli. Sri Kunju Ezhuthachan died later. Since there were several errors in the document relating to survey number, extent of the property etc., the petitioners along with Smt.Kunju Malu Pattathiar had submitted a cancellation deed before the 4^th respondent, a true copy of which has been produced as Ext.P3. The 4^th respondent by Ext.P4 informed the petitioners that they have to pay a sum of ₹1,39,050/- along with the document. According to the petitioners, Article 15 of the schedule to Kerala Stamp Act (hereinafter referred to as the Act) provides for a fee of ₹500 for a cancellation deed and hence the demand was not legally justified. W.P.(C)No.4302 of 2020 had been filed by the petitioners. A learned Single Judge found

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W.P.(C)No.3604/2022

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the demand to be unsustainable, but was of the opinion that the earlier document has to be declared void by a civil court. The petitioners preferred Writ Appeal No.1656 of 2020 and a Division Bench of this Court allowed the appeal and directed the Sub Registrar to refer the cancellation deed submitted by the writ petitioners to the Collector for adjudication of Stamp duty in accordance with provisions of the Act. Thereafter by Ext.P7 the 3^rd respondent ordered that a sum of ₹5,56,200/is to be paid towards stamp duty. The petitioners approached this Court by filing W.P.(C)No.15488 of 2021. This Court set aside the order Ext.P7 and directed the 3^rd respondent to reconsider the matter after hearing the petitioners and after adverting to the precedents cited by the petitioners. Thereafter, by Exhibit P9 order, the 3^rd respondent has once again rejected the contentions of the petitioners and directed payment of ₹5,56,000/- towards the stamp duty. The finding of the 3^rd respondent is that the document has the effect of converting the property which had already been divided into a co-ownership property and hence amounts to conveyance.

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Heard the counsel for the petitioner and the Government Pleader on behalf of the State.

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W.P.(C)No.3604/2022

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In the decision in Cleetus & Anr. vs. Sub

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Registrar & Anr. reported in [ILR 2012 (2) Kerala 177] , a learned Single judge had held that the stamp duty payable for cancellation deed is as prescribed in Article 15 of the Act and not the one prescribed in Article 22 for deeds of conveyance. In the said case, this Court had considered the case of a deed executed for cancellation of a settlement deed earlier executed. In Puthukudikuniyil Aysha vs. State of Kerala and others (WP(C)No.21853 of 2018 ), another Single judge had occasion to consider the case of a cancellation deed executed with regard to a partition deed. After considering the legal provisions and the decision in Cleetus (supra ), the learned judge held that Article 15 of the schedule of the Act will apply in the case of a cancellation deed. This Court noticed the definition of the word “conveyance” which specifically said that it includes conveyance on sale and every instrument by which property, whether movable or immovable is transferred intervivos and which is not otherwise specifically provided for by the schedule and held that as far as a cancellation deed is concerned, there is a specific provision which governs it. I do

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W.P.(C)No.3604/2022

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not find any reason to take a different view than the one taken in Cleetus (supra) and Aysha (supra ). The petitioners are entitled to succeed in this writ petition.

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The writ petition is allowed. Ext.P9 is quashed. There will be a direction to the 3^rd respondent to take steps to register Exhibit P3 cancellation deed, as and when tendered, on payment of stamp duty as provided under Article 15 of the Kerala Stamp Act, if the document is otherwise in order.

Sd/-

T.R. RAVI

JUDGE

dsn

W.P.(C)No.3604/2022

APPENDIX OF WP(C) 3604/2022

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PETITIONER EXHIBITS

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Exhibit	P1 TRUE COPY OF THE PARTITION DEED NO. 379/1999 OF SRO, PARALI DATED 2.2.1999.
Exhibit	P2 TRUE COPY OF THE COMMUNICATION DATED 24.8.2019 ISSUED BY THE 5TH RESPONDENT.
Exhibit	P3 TRUE COPY OF THE CANCELLATION DEED SUBMITTED BY THE PETITIONERS.
Exhibit	P4 TRUE COPY OF THE COMMUNICATION DATED 11.12.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS.
Exhibit	P5 TRUE COPY OF THE JUDGMENT DATED 24.02.2020 IN W.P.C. NO. 4302/2020
Exhibit	P6 TRUE COPY OF THE COMMON JUDGMENT IN W.A. NO. 1656/2020 AND W.A. 96/2021.
Exhibit	P7 TRUE COPY OF THE ORDER DATED 10.02.2021 PASSED BY THE 2ND RESPONDENT.
Exhibit	P8 TRUE COPY OF THE JUDGMENT DATED 11.10.2021 IN W.P.C NO. 15488 OF 2021.
Exhibit	P9 TRUE COPY OF ORDER NO. G1-614/2021 DATED 09.11.2021 PASSED BY THE 3RD RESPONDENT.
Exhibit	P10 TRUE COPY OF DECISION IN PUTHUKUDIKUNIYIL AYSHA VS. STATE OF KERALA AND OTHERS (MANU/KE/1596/2018)

Kuttan, v. State of Kerala

Case brief

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Kuttan, v. State of Kerala

Case brief

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