JOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) Whether the petitioner does come within the purview of the term 'family' as given in the 'Explanation' to Serial No. 42(i) of the Schedule to the Kerala Stamp Act, 1959, to have the benefits flowing there from, by satisfying only the maximum stamp duty of Rs. 1000/- for registering the 'partition deed' among the members concerned, is the issue involved herein. The father of the petitioner (by name Thomas) and his brother (by name Varkey) were the joint owners of the property having an extent of 2.27 acres comprised in Sy. No. 810/3 of Kaduthuruthy Village in Kottayam district. The said property was purchased in their names by their father by virtue of Ext. P1 sale deed dated 25.3.1964 of the SRO, Kaduthuruthy. Ever since the execution of the said deed, they were enjoying the property with joint possession, also remitting the tax, as borne by Ext. P2.

(2.) While so, the father of the petitioner executed Ext. P3 Will, whereby his undivided right over the property was bequeathed in favour of the petitioner, as Item No. 3 of A-Schedule in Ext. P3 Will. Subsequently, the father of the petitioner bid farewell to this world and the Will became alive, virtually making him the owner of half of the undivided interest over the total property covered by Ext. P1. For better enjoyment of the above said property, the petitioner and his paternal uncle by name Varkey sought to effect partition of the property by metes and bounds and it was accordingly, that Ext. P4 document was executed on 9.11.2012. But when the said document was taken up for registration, it was refused to be registered by the registering officer, finally taking the proceedings to be dealt with by the second respondent, who considered the same and passed Ext. P5 order dated 28.11.2012 declining the relief, holding that the Stamp Duty had to be paid at higher rates as provided under Serial No. 42(ii) of the Schedule as the executants do not come within the definition of the term 'Family" to have the benefit of lesser stamp duty under Serial No. 42(i) of the Schedule. This in turn is under challenge in this Writ Petition.

(3.) Mr. S. Ananthakrishnan, learned Counsel for the petitioner submits that the very idea and understanding of the second respondent as to the purpose of the enactment and the definition of the term 'Family' as it now stands after the amendment (which gives a wider definition) is quite wrong and misconceived. It is also stated that the issue is clearly covered by the judgment rendered by this Court in Bahuleyan and others v. District Registrar, Thrissur & Anr.,2012 4 KLT 356 and that the petitioner is entitled to have the benefit of lesser stamp duty as provided under Serial No. 42(i) of the Schedule to the Kerala Stamp Act.