PUTHUKUDIKUNIYIL AYSHA Vs. STATE OF KERALA AND OTHERS

JUDGEMENT

(1.) The grievance of the petitioner is that though she had executed Ext.P-2 cancellation deed dated 13.3.2018, for cancelling Ext.P-1 partition deed No. 1184/17 of SRO, Panoor, on the ground that the property so partitioned by Ext.P-1 could not be enjoyed by the parties by putting up a residential building on account of the peculiar physical shape, respondents 3 and 4 are demanding stamp duty for Ext.P-2 cancellation deed as if it is a conveyance deed. It is stated that after the death of petitioner's husband, his property had devolved upon her and her 8 children as per Ext.P-1 partition deed dated 25.9.2017. That due to the improper shape of the property, the petitioner and other allottees of the partition deed could not effectively put up construction of the building and therefore they decided to cancel Ext.P-1 partition deed and register a fresh partition deed pursuant to cancellation of Ext.P-2 deed. When Ext.P-2 cancellation deed was presented before the 4th respondent, the said officer demanded stamp duty as if it is a conveyance deed. Thereafter the 4th respondent had forwarded Ext.P-2 cancellation deed to the 3rd respondent-District Registrar (General), Kannur, under Section 37(2) of the Kerala Stamp Act and the 3rd respondent in turn had issued the impugned Ext.P-5 order dated 9.5.2018 by which it has been ordered that Ext.P-2 cancellation deed could be registered only to be treating it as a conveyance deed under Article 21(i) of the Schedule to the Kerala Stamp Act, which attracts duty @ 8% and that in addition thereto the petitioner should also pay penalty of Rs. 2,000/-, etc. It is this order at Ext.P-5 that is under challenge in this Writ Petition. The prayers in this Writ Petition (Civil) are as follows:

(2.) Heard Sri.C.P.Peethambaran, learned counsel for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents.

(3.) Sri.C.P.Peethambaran, learned counsel for the petitioner would submit that the matter in issue is no longer res integra and fully covered in favour of the petitioner and against the official respondents on account of the dictum laid down by this Court in the judgment in Cleetus and anr. v. Sub Registrar and anr ., reported in 2012 (2) ILR Ker 177, wherein this Court has held that the stamp duty applicable for registration of a cancellation deed is the one prescribed in Article 15 of the Schedule to the Kerala Stamp Act, which deals with cancellation of documents, and the stamp duty payable is Rs. 250/- which has been later enhanced to Rs. 500/-. Learned counsel for the petitioner would submit that identical objection like the one was raised in the above said reported case and the said objection was overruled by this Court. Apart from the said submission, learned Senior Government Pleader appearing for the official respondents would submit that in case the petitioner has any grievance as against the impugned Ext.P-5 order issued by the 3rd respondent-District Registrar (General) under Section 37(2) of the Act, then the petitioner is conferred with an efficacious statutory remedy by way of an appeal under Section 44(2) of the said Act.