LILLY JOHN AUGUSTINE Vs. BOARD OF REVENUE

JUDGEMENT

(1.) Heard learned Government Pleader also.

(2.) The question for consideration in this original petition is whether Ext. P5 document conferring on the second party therein the right of passage through the private road owned by the first party therein is a conveyance as defined in the Kerala Stamp Act, 1959. The facts of the case may be briefly stated as follows:

(3.) Ext. P5 is a document under which Shri. P.C.Chacko, Smt.Chinnamma Chacko and Shri. Roy Chacko formed the first party and the petitioner herein was the second party. The first party under Ext. P5 is the owner of a private road having 17 links width and 410 links length running from the bypass road and leading to the property situated on the western side of the main road in Sy.Nos.125/B and 125/13A in Edappally South village. The first party is the owner of the said private road by virtue of registered document No.158/159 and 1041 of 1981 and 2445 of 1985 of S.R.O., Edappally. Ext. P5 document was executed between the first party and the petitioner who figures as second party therein as already noticed since the petitioner intended to purchase building No. 48/497 B situated Sy. No. 125/13A belonging to Roy Chacko, son of the first named person of the first party in Ext. P5. On a perusal of Ext. P5 produced along with C.M.P. No. 2006/95, it is seen that as consideration for the first party permitting the petitioner to have road access to building No. 48/497 B the petitioner has paid to the first party a sum of Rs. 25,000 and in consideration thereof, it is agreed by the first party that the petitioner will have the right of passage through this private road at all times and for all matters including carrying of vehicles, laying pipes, running electric line, phones, etc. and the first party cannot on any account obstruct the petitioner in this regard. Ext. P5 also mentions that pucca document evidencing conveyance will be registered later. This was so arranged because at the time when Ext. P5 was entered into, all the owners of the pathway were not available for signature. The pathway really belonged to 5 people of whom 4 alone signed in the agreement, the other coowner of the pathway being out of station could not join in the agreement. In Ext. P5 the parties further agreed that the property in question will be used only as a pathway. Ext. P5 was executed as a memorandum of agreement on a stamp paper worth Rs. 15/- under Art.5 of the Schedule to the Kerala Stamp Act (for short the Act. Treating the document Ext. P5 as a conveyance and stamp paper on which the agreement is written insufficient for the purpose, the third respondent, Sub Registrar, refused registration for the document and impounded the same under S.44 of the Act. The third respondent thereafter forwarded the document to the second respondent, namely, District Registrar (General), Ernakulam who is designated as Collector for the purpose of the Act. The second respondent forwarded the document with a report to the Inspector General of Registration who in turn forwarded a copy of Ext. P5 document with his report for the decision of the Board of Revenue under S.54(2) of the Act. The Board of Revenue as per Ext. P4, agreed with the views of the Inspector General of Registration and held that the impounded document No. P2/87 of S.R.O., Edappally is a 'conveyance'. Based on Ext. P4, the District Registrar (General), Ernakulam as per Ext. P1 has taken a decision that the deficit stamp duty for the impounded document Ext. P5 is a sum of Rs. 3,110/-. He has accordingly issued instructions for the recovery of the said sum from the petitioner and if the amount is not paid, revenue recovery steps will be taken for recovering the said amount. Ext. P1 was followed by Ext. P2 notice wherein it is stated that unless the amount of Rs. 3,110/- as directed to be paid as per Ext. P1 is not paid within 15 days of Ext. P2 notice, revenue recovery proceedings for recovery of the said sum will be taken without further notice. The challenge in the original petition is directed against Exts. P1, P2 and P4.