Allowed

Anupa K.V. v. the District Registrar (General)

Kerala HC13 Dec 2023WP(C)/13160/2022

Case brief

AI extract

What is this about?

The Supreme Court allowed two writ petitions challenging orders demanding additional stamp duty on a partition deed. The court set aside the orders due to lack of notice to all parties and directed the District Registrar to re-examine the matter considering the Full Bench judgment Abdul Muneer regarding family definitions.

What did the court decide?

Writ petitions allowed. Impugned order dated 08.08.2013 (Ext. P6) set aside. Demand notice consequentially quashed. 1st Respondent directed to reconsider issue with notice to all executants.

Anupa K.V. Vs the District Registrar (General) — Property and Title | Kerala HC (2023)

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WP(C) Nos.30664/14 & 13160/22

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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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WEDNESDAY, THE 13^TH DAY OF DECEMBER 2023/22ND AGRAHAYANA, 1945 WP(C) NO. 30664 OF 2014

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PETITIONER:

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DR.VINOD KESAVAN AGED 62 YEARS KATTUPARAMBIL HOUSE, VELIYANNOOR.P.O., TRICHUR DISTRICT-680021, (NOW RESIDING AT 127, 7465, MULBERY PLAZE, BURNABY, B.C., V3N5A1, CANADA) REPRESENTED BY THE POWER OF ATTORNEY HOLDER DR.GEORGE PETER. BY ADVS. SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.THOMAS GEORGE SRI.TONY GEORGE KANNANTHANAM

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RESPONDENTS:

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1 THE DISTRICT REGISTRAR AYYANTHOLE, THRISSUR-680004. 2 THE SUB REGISTRAR AYYANTHOLE, THRISSUR-680004. 3 THE DEPUTY TAHSILDAR R.R THRISSUR. BY ADVS. SRI BIMAL K.NATH, SR.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3.8.2022 ALONG WITH WP(C).13160/2022, THE COURT ON 13.12.2023, DELIVERED THE FOLLOWING:

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WP(C) Nos.30664/14 & 13160/22

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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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WEDNESDAY, THE 13^TH DAY OF DECEMBER 2023/22ND AGRAHAYANA, 1945 WP(C) NO. 13160 OF 2022

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PETITIONER/S:

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ANUPA K.V. AGED 38 YEARS W/O SARATH, VINOD HOUSE, MAHATHMA LANE, VELIYANNUR P.O. THRISSUR DISTRICT BY ADVS. C.D.DILEEP SHYLAJA VARGHESE

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RESPONDENTS:

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1 THE DISTRICT REGISTRAR (GENERAL), OFFICE OF THE DISTRICT REGISTRAR, G6H9+JJX, CHEMBUKKAV, THIRSSUR, THRISSUR DISTRICT, PIN-680 020 2 THE SUB REGISTRAR (GENERAL), THRISSUR, G6H9+JJX, CHEMBUKKAV, THRISSUR DISTRICT, PIN680 020 3 DEPUTY TAHASILDAR (RR), TOWN HALL, PALACE RD, OPP, THRISSUR, CHEMBUKKAV, THRISSUR DISTRICT, PIN-680 020 4 VILLAGE OFFICER, THRISSUR, THRISSUR VILLAGE, THRISSUR DISTRICT, PIN-680 020

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SRI. TONY GEORGE KANNANTHANAM. SR. SRI. BIMAL K. NATH, SR.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3.8.2022, ALONG WITH WP(C).30664/2014, THE COURT ON 13.12.2023 DELIVERED THE FOLLOWING:

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WP(C) Nos.30664/14 & 13160/22

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T.R.RAVI.J

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---------------------------------------WP(C) Nos.30664 of 2014

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13160 of 2022

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---------------------------------------Dated this the 13^th day of December, 2023

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JUDGMENT

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W.P.(C)No.30664/2014

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This writ petition is filed challenging an order issued by the District Registrar directing the petitioner to remit an additional amount of Rs.62 lakhs as stamp duty. The above direction is issued on the premise that the document involved is not a partition deed but a conveyance deed. The reason for treating the document as a conveyance deed is that the husband of the deceased sister is also a party to the partition deed, and the said person cannot be treated as coming under the definition of 'family' for the purpose of lower stamp duty.

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The petitioner’s parents expired long back. He had two sisters and no brothers. 59 cents of property with a residential house belonged to the petitioner and his two sisters. Out of the

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WP(C) Nos.30664/14 & 13160/22

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total extent, 4 cents of the property was set apart for the petitioner, and another 4 cents was set apart for one of the sisters, but, the entire property was lying together and had not been separa ted by metes and bounds. One of the sisters, Smt.Veena passed away. Dispute arose between the petitioner, his other sister Geetha, and the legal heirs of deceased Veena. A partition suit was filed as O.S.No.329/2012 before the Sub Court, Thrissur. Pending the suit, there was mediation, and the matter was settled amicably. Ext.P1 dated 18.07.2013 is the judgment in the suit. Based on the settlement arrived at, a partition deed had been executed on 07.06.2013 (prior to Ext.P1 judgment). The document was presented for registration. A copy of the document has been produced as Ext.P2. The document was executed on a stamp paper worth Rs.1000/-. Since the parties treated it as a family partition, the maximum registration fee payable on such documents was Rs.25,000/-. However, the Sub Registrar insisted on paymen t of ad valorem reg istration fee. In the above circumstances, Rs.9,14,172/- was paid towards the registration fee, which is evidenced by Ext.P3. In Ext.P2 partition deed, the legal heirs of the deceased sister, who were parties to the suit, were also executants. The Registrar was of the opinion that the husband of

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WP(C) Nos.30664/14 & 13160/22

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the sister was not a member of the family, and hence, the document cannot be treated as a partition deed but only as a conveyance. The Registrar, however, tentatively agreed to register the document subject to adjudication by the Collector (District Registrar) regarding the stamp duty payable. Ext.P4 dated 07.06.2013 is the reference letter issued by the Sub Registrar to the District Registrar. It is stated in the reference letter that since the husband of the deceased sister is not a member of the family, the stamp duty payable should be levied at 6%, and there is a deficit of Rs.27,42,530/-.

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The petitioner had gone back to Canada. His elder sister Smt.Geetha was permanently settled in Madras, and she left to Madras. Since Smt.Geetha was older, her name was shown as the first party to the document, and the address was shown as the ‘tharavad’ address at Thrissur, where nobody was staying. The petitioner submits that notice for hearing was sent by the District Registrar to the said address, addressing Smt. Geetha and as nobody was residing in the address, the notice was returned. Ext.P5 is the copy of the notice, which is in the same lines as Ext.P4. On 08.08.2013, the District Registrar passed Ext.P6 order

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WP(C) Nos.30664/14 & 13160/22

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directing the parties to pay the deficit of Rs.62,66,688/-. Ext.P6 again is addressed to Smt.Geetha M. The petitioner and the other parties to the document were unaware of all this, according to the petitioner. The petitioner submits that Smt.Anupa V., the daughter of deceased sister Veena, had gone to the Village Office, and she was told that there was a demand notice against her and the other parties to the partition deed. She accepted the said notice, a copy of which is produced as Ext.P7. The petitioner submits that Smt.Anupa had informed the petitioner about the notice, and on the petitioner’s instruction, Smt.Anupa had collected all the details. It is in the above circumstances that this writ petition has been filed.

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The main contention raised by the Senior Counsel appearing for the petitioner is that the parties were not afforded a reasonable opportunity of hearing. It is submitted that notice was issued only to one of the parties and that too to an address where nobody was residing. It is further submitted that even after the notice was returned, no steps were taken to put the other parties on notice about the proposed action. It is contended that the order now issued is even against the reference made by the Sub

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WP(C) Nos.30664/14 & 13160/22

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Registrar under Section 45B(1).

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WP(C) No.13160 of 2022

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This writ petition is filed by the daughter of deceased Smt.Veena, who was the sister of the petitioner in WP(C)No.30664 of 2014. The prayer in the writ petition is for quashing Ext.P7 order, which is the order under challenge in WP(C)No.30664 of 2014, and Ext.P8 demand made under the Revenue Recovery Act for the amounts found due in Ext.P7. Here again, the main contention taken is that there was no hearing of the parties before the issuance of the order impugned. WP(C)No.30664 of 2014 is treated as the main case, and reference to the documents is as they are produced in the said writ petition.

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The 1^st respondent has filed a counter affidavit. The counter affidavit seeks to justify the order on the grounds that the husband of the d eceased sister cannot be treated as a member of the family. Article 42 of the Kerala Stamp Act has been defined to mean father, mother, grandfather, grandmother, husband, wife, son, daughter, grandchildren, brother, sister, and legal heirs of the deceased children, if any, as the case may be. It is hence submitted that the explanation does not take in the husband of a

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WP(C) Nos.30664/14 & 13160/22

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deceased sister. It is hence, submitted that the executants do not have co-ownership over the entire property. It is also stated that the document takes in 4 cents belonging to Smt. Veena and 4 cents belonging to Sri.Vinod Kesavan, which are their absolute properties and cannot be treated as co-ownership properties.

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Heard Sri Kurian George Kannamthanam, Senior

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Advocate, as instructed by Sri Tony George Kannamthanam, on behalf of the petitioner in WP(C)No.30664 of 2014, Sri C.D.Dileep, on behalf of the petitioner in WP(C)No.13160 of 2022 and Sri Bimal K.Nath, Government Pleader on behalf of the respondents.

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The primary contention of the counsel for the petitioner is that orders were issued without notice to the parties. The counter affidavit does not seriously dispute the above fact that notice had not been issued to the petitioner and the legal representatives of Smt.Geetha. Another contention that is taken is that the law regarding the inclusion of the husband as a member of the family was not clear at the time of execution of the documents. It is submitted that the issue obtained finality by the judgment of a Full Bench of this Court in Abdul Muneer & Anr.

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WP(C) Nos.30664/14 & 13160/22

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V. Sub Registrar, Tirur & Ors. [2018 (1) KLT 238] . In the above judgment, this Court spec ifically held that only persons who are specifically named in Article 32 can be treated as family. The Court held that even the children of deceased family members cannot be treated as family as per the definition given since nieces and nephews have not been included in the definition. The Senior Counsel points out that even though the law was laid down, the Court specifically held that the judgment would not apply to cases where the documents had already been registered prior to the judgment. It is submitted that the document in this case was registered in 2013 itself, and as such, the judgment cannot be applied in the case of the petitioner. Another aspect pointed out is that the partition suit had been filed in 2012, before the execution of the partition deed and after the demise of Smt.Veena. The legal representatives of Smt.Veena were parties to the suit. It is submitted that on the death of Smt.Veena, the legal r epresentatives become co-owners of the property, and the mere fact that there has not been a partition by metes and bounds w ill not take away their right of co-ownership. It is hence submitted that the contention of the respondents that the husband is not a co-owner is not legally correct. The contention that the husband

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WP(C) Nos.30664/14 & 13160/22

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does not come within the definition of 'family' as obtained at the time of execution of the document may be correct, but the fact remains that the document is executed between co-owners. The total extent of the property that is sought to be partitioned is an extent of about 59 cents. Ext.P6 order dated 08.8.2013 specifically says that the properties were joint properties of the petitioner and her sisters as per document No.732 of 1916. The order also says that notice has returned stating ‘not known’. Merely because the husband and the children of the deceased sister do not come within the meaning of the word 'family' as per Article 42 of the Kerala Stamp Act, that would not mean that they are not le gal representatives of deceased sister Veena who are entitled to inherit the right of Smt.Veena. An explanation in an Article of the Stamp Act cannot take away the right of a legal representative to be a co-owner of the property left behind by the deceased. The above aspect has not even been considered in Ext.P6.

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In the above circumstances, the petitioners are entitled to succeed in these writ petitions. The writ petitions are allowed. Ext.P6 dated 08.08.2013 (Ext.P7 in WP(C)No.13160/2022) is set aside. Consequently, Exts.P7 demand notice (Ext.P8 in

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WP(C) Nos.30664/14 & 13160/22

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WP(C)No.13160/2022) is also quashed. The 1^st respondent is directed to re-consider the issue with notice to the executants of Ext.P2 partition deed dated 07.06.2013 and dispose of the same

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with due regard to the judgment of the Full Bench reported in

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Abdul Muneer (supra) and the observations made above.

Sd/-

T.R.RAVI

JUDGE

sn/dsn

WP(C) Nos.30664/14 & 13160/22

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APPENDIX OF WP(C) 30664/2014

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PETITIONER EXHIBITS Exhibit P1 COPY OF THE JUDGMENT DATED 18.7.2013 IN O.S.NO.329/2012 OF THE 1ST ADDITIONAL SUB COURT, THRISSUR. Exhibit P2 COPY OF THE PARTITION DEED EXECUTED ON 7.6.2013. Exhibit P3 COPY OF THE RECEIPT DATED 7.6.2013 FOR RS.9,14,812/-. Exhibit P4 COPY OF THE LETTER DATED 7.6.2013 ISSUED BY THE SUB REGISTRAR TO THE DISTRICT REGISTRAR. Exhibit P5 COPY OF THE NOTICE DATED 17.6.2013 FROM THE DISTRICT REGISTRAR. Exhibit P6 COPY OF THE ORDER DATED 8.8.2013 PASSED BY THE DISTRICT REGISTRAR. Exhibit P7 COPY OF THE DEMAND PRIOR TO ATTACHMENT OF LAND ISSUED BY THE 3RD RESPONDENT.

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WP(C) Nos.30664/14 & 13160/22

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APPENDIX OF WP(C) 13160/2022

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PETITIONER EXHIBITS

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Exhibit P1	A TRUE COPY OF THE JUDGMENT IN OS NO 329/2012 DATED 18.7.2013 OF THE 1ST ADDITIONAL SUB COURT THRISSUR
Exhibit P2	A TRUE COPY OF THE SETTLEMENT AGREEMENT DATED 19.2.2013 WITH DECREE IN OS NO 329/2012 DATED 18.7.2013
Exhibit P3	A TRUE COPY OF THE PARTITION DEED ON 7.6.2013 PRESENTED BEFORE THE REGISTRATION AUTHORITIES
Exhibit P4	A TRUE COPY OF THE RECEIPT SHOWING PAYMENT OF RS 9,14172/- DATE 7.6.2013
Exhibit P5	A TRUE COPY OF THE COMMUNICATION OF THE SUB REGISTRAR TO THE DISTRICT REGISTRAR DATED 7.6.2013
Exhibit P6	A TRUE COPY OF THE NOTICE NO I.S.S.3-335/2013 DATED 17.6.2013 ISSUED BY THE DISTRICT REGISTRAR TO SMT GEETHA
Exhibit P7	A TRUE COPY OF THE ORDER NO INS-3335/2013 DATED 8.8.2013 PASSED BY THE DISTRICT REGISTRAR
Exhibit P8	A TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 3RD RESPONDENT
Exhibit P9	TRUE COPY OF THE JUDGMENT DATED 03/02/2017 IN O.S 777/2016 OF THE II ADDITIONAL MUNSIFF COURT, THRISSUR

Anupa K.V. v. the District Registrar (General)

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Anupa K.V. v. the District Registrar (General)

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