DISTRICT REGISTRAR Vs. BAHULEYAN

JUDGEMENT

(1.) State has come up in this appeal aggrieved by the judgment of learned Single Judge. Respondents-writ petitioners claim to be joint owners of a property measuring 2 acres 84 2/3 cents of land in re-survey No. 373 of Thalikkulam Village. It is not in dispute, the property originally belonged to Smt. Lakshmi, who executed a Will, a registered document as per Exhibit P1. As per her last will and testament, the property should devolve upon her grandson Bahuleyan and one late Kumaran, another son. According to the writ petitioners before the learned Single Judge, by virtue of serial number 42 of the Finance Act, 2011, whereby certain amendments came to be made as serial number 42(i) and the Explanation thereto would cover all the writ petitioners by expanding the definition of 'family'. According to the writ petitioners, what is required is, partition should be among all or some of the family members. Therefore, Explanation of the word 'family' will include grandchildren and legal heirs of present petitioners. First petitioner Bahuleyan is the grand son of late Laxshmi and petitioners 2, 3 and 4 were the legal heirs of deceased son Kumaran, therefore, petitioners 3 and 4 will also be her grandchildren. This was seriously contested by the State contending that the definition or explanation of the word 'family' would include only father, mother, husband, wife, son and daughter, if any, as the case may be. Therefore, property at Exhibit P2 partition deed originally belonged to the first petitioner and Kumaran, who is the uncle of the first petitioner by virtue of a Will. Hence, it cannot be considered as a single family. Exhibit P2 partition deed was between first petitioner and the legal heirs of deceased Kumaran, who is the son of late Laxshmi.

(2.) As a matter of fact, the writ petitioners approached learned Single Judge aggrieved by issuance of Exhibit P4 by the Sub Registrar, Sub Registrar's Office, Vadanappally, Thrissur District contending that there is no justification in issuing Exhibit P4, as there is no application of mind by the second respondent in understanding explanation of the word 'family'. According to the petitioners, all the petitioners belonged to the family of late Laxshmi, therefore, they decided to partition the property among them as per Exhibit P2 dated 19.5.2012 and submitted the same for registration, which came to be rejected by the second respondent without application of mind. According to the petitioners, the stand of second respondent that stamp duty payable on Exhibit P2 should be computed in terms of serial number 42(ii) of the Schedule of Kerala Stamp Act, 1959 is totally incorrect and the stamp duty has to be paid only as per serial number 42(i), hence, they sought for quashing of Exhibit P4 and further sought for a direction to second respondent and others to register partition deed by computing stamp duty payable in terms of serial number 42(i) as per Exhibit P3. They also claim that they are liable to pay only maximum stamp duty of Rs. 1,000/-.

(3.) Learned Single Judge, after referring to two judgments of this Court reported in Baburaj v. District Registrar,2011 3 KerLT 835 and Lakshmi v. District Registrar General, 2011 4 KerLT 959 , ultimately opined, the partition is between two co-owners, grandson of late Laxshmi and legal heirs of her another son, therefore, they all come under the definition of 'family' for the purpose of Explanation. Learned Single Judge further opined that the Explanation shows that family is sought to be denoted on the basis of relationship of parties concerned and not the factum of their residence under one roof. Accordingly, the Writ Petition was allowed. Aggrieved by the same, the State is before us raising several grounds attacking the judgment of learned Single Judge.