ALEYAMMA JOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) The 2nd petitioner is the son of the 1st petitioner, and the 3rd petitioner is a Private Limited Company incorporated under the Companies Act, 1956. Petitioners 1 and 2 had purchased immovable properties measuring 2.85 Ares each comprised in Sy.No.242/3 in Elamkulam Village of Kanayannur Taluk as per Sale Deed Nos.3073/1999 and 3074/1999 registered at the Sub Registrar's Office, Ernakulam. As per Ext.P1 Sale Deed No.3123/2016 of SRO, Ernakulam, petitioners 1 and 2 sold 20% of the undivided fractional share in the property to the 3rd petitioner for a total consideration of Rs.49,50,000.00. The petitioners thereafter decided to develop the entire land by constructing a multi-storeyed residential apartment complex with 15 units. The complex was named 'Dream Flower Ibiza-2'. The construction of the building was completed on 2/2/2018. The occupancy certificate was issued on 19/3/2018 by the Local Authority. The petitioners together sold 10 apartments out of the 15 units, along with the undivided fractional share in the property and undivided interest in the common areas and facilities. After effecting the sale, 4 units and a room, bearing Nos.C103, C203, D304, F402, and Door No.65/1210-A, respectively, remained unsold along with 5/15 fractional undivided share in the property and proportionate undivided share in the common areas and the facilities. The petitioners decided to divide the balance units and undivided share in the land and common areas by executing a partition deed. Ext.P2 partition deed dtd. 10/11/2021 was drawn up whereby 4/15 of the undivided fractional share in the property along with four apartments shown as B schedule in the document was to be set apart to petitioners 1 and 2 jointly, and the room with the balance 1/15 undivided proportionate share in the property and the common areas shown as Schedule A was to be set apart to the share of the 3rd petitioner. When the petitioners submitted the document for registration after remitting the necessary registration fee online and obtaining the token for registration along with acknowledgment, the 3rd respondent was reluctant to register the document and returned the same along with Ext.P4 letter directing the petitioners to re-submit the same after curing the defects pointed out. Three reasons have been stated for returning the documents. The first reason is that petitioners 1 and 2 are not in joint possession of the properties, as they had obtained their properties having 2.85 Ares each by virtue of separate documents. The second reason is that the 3rd petitioner had purchased 20% of the undivided share out of the above properties from the petitioners 1 and 2 herein. The third reason is that the Land Revenue Commissioner, in his order dtd. 12/6/2021, has ordered that when a small share is purchased as an undivided share, and thereafter partition is effected by way of partition deed, the same cannot be treated as an instrument of partition as defined in Sec. 2(k) of the Kerala Stamp Act, 1959 and the document is liable for stamp duty of 8% under Sl. No.22 of the Schedule appended. According to the petitioners, since A Schedule alone is sought to be separated from the entire property remaining unsold, stamp duty needs to be paid only on the separated share alone, and hence, a valuation certificate with respect to A Schedule alone is required. It is also submitted that since petitioners 1 to 3 had joint ownership, it is necessarily a partition deed, and the mere reason that properties were originally obtained by petitioners 1 and 2 by separate sale deeds will not in any manner change the factum of joint ownership as between petitioners 1 and 3 and petitioners 2 and 3.

(2.) The 3rd respondent has filed a counter affidavit producing Exts.R3(a) and R3(b) sale deeds by which petitioners 1 and 2 obtained the property. Respondents have also produced, as Ext.R3(c), the judgment of a Division Bench of this Court in W.A.No.2181 of 2019. The said judgment is relied on to submit that any right over a property in which the parties have no common right and co-ownership, can only be transferred by means of a deed of conveyance.

(3.) A reading of Ext.R3(c) would show that the Court was concerned with a document seeking to partition properties that were already the subject matter of an earlier document, and the Court specifically found that in the earlier document of partition, property scheduled as A alone is kept in common and a subsequent document for partition can only be with regard to the said property which was kept in common and cannot include any other property. The court on facts found that in the schedule, which has been included in the subsequent partition deed, properties other than the properties that were kept in common were also included. It is in the above circumstances that the Court said that it cannot be treated as a partition deed. In the case on hand, the facts are a little different. Admittedly, the properties were purchased separately by the 1st and 2nd petitioners. The 3rd petitioner became a joint holder of the properties of petitioners 1 and 2. There is a co-ownership between petitioners 1 and 3 and petitioners 2 and 3. It cannot, hence, be said that there is no co-ownership existing at all in the case of the five units that are left after the sale of the 10 units. The co-owners are free to accept any share, and there is no law that says that a particular co-owner should not be allotted something more than the share while effecting a partition. A reading of the document of partition would show that it is the 3rd petitioner's share that is being separated from that of petitioners 1 and 2, and it is not a division between petitioners 1 and 2. Sec. 2(k) defines an 'Instrument of Partition' to mean any instrument whereby co-owners of any property divide or agree to divide such property in severalty. In such circumstances, the objection raised by the respondents that, as between co-owners, there should be an instrument of conveyance cannot be legally justified. One cannot sell to oneself. It can also be seen from Ext.P2 document that what is sought to be divided are the buildings along with the fractional share in the undivided property, and there is no partition of the land between petitioners 1 and 2 to justify the objection that there is no commonality of interest between petitioners 1 and 2, which requires to be partitioned. The reasoning in Ext.P4 cannot be legally justified so long as there is a pre-existing right between petitioners 1 and 3 and petitioners 2 and 3. The respondents are not entitled to reject registration of Ext.P2. The objection based on the order of the Land Revenue Commissioner also does not apply since it is not a case where a small undivided share in the land is purchased, and partition of the land is sought to be effected. In the case on hand, after purchasing the undivided share in the land, construction has been carried out by the petitioners jointly, and it is the constructed apartments that were sold by them jointly before the petitioners decided to partition whatever is not sold.