K.K. JANU Vs. THE SUB REGISTRAR

JUDGEMENT

(1.) Petitioner along with seven others executed Ext.P1 partition deed in respect of the property held by her father, Govindan. According to the petitioner, on the death of Govindan and his wife Panchali, the mother of the petitioner, the property covered by the document devolved on the parties to the document by virtue of the provisions of a registered will executed by deceased Govindan. The parties to the document are the petitioner, her children, the daughter of the deceased sister of the petitioner and her children. The document recites the aforesaid devolution of property on the executants. Since the document was executed among the family members, stamp duty was paid for the document under Article 42(i) of the Schedule to the Kerala Stamp Act ('the Act', for short). The Sub Registrar entertained a doubt as to the correctness of the stamp duty paid on the document and consequently, impounded the document, invoking his powers under Section 33(1) of the Act. Thereupon, the document was forwarded to the second respondent, the District Registrar. The District Registrar, in exercise of his powers under Section 39 of the Act, issued Ext.P2 order directing the petitioner to pay stamp duty on the document under Article 42 (ii) of the Schedule to the Act. In addition, as per Ext.P2 order, the District Registrar has imposed a fine of Rs.15,000/- on the petitioner. Ext.P2 order is under challenge in this writ petition.

(2.) It is stated in Ext.P2 order that the executants of the document do not come within the definition of 'family' contained in Article 42 of the Schedule to the Act. The stand of the second respondent, as discernible from Ext.P2, is that the grandchildren and the great grandchildren of deceased Govindan, do not come within the definition of 'family'. Section 2(k) of the Act defines "instrument of partition" as follows :

(3.) In the instant case, the second respondent has no case that the parties to Ext.P1 partition are not co-owners of the property sought to be partitioned. The objection is only that the great grandchildren of the owner of the property are parties to the document and they do not come within the definition of 'family'. As indicated above, the definition being only an inclusive definition, merely for the reason that the great grand children of the original owner of the property are also parties to the document, it cannot be contended that the document would not come within the scope of Article 42(i) of the Schedule. In so far as the parties to the document are co-owners and they are the successors in interest of the owner of the property partitioned as per the document, the document would certainly come within the scope of Article 42(i) of the Schedule. Since the petitioner has paid stamp duty on the document, as provided for under Article 42(i) of the Schedule, Ext.P2 order is illegal and liable to be quashed.