High Court Kerala High Court

Thresiamma George vs The State Of Kerala on 7 July, 2010

Kerala High Court
Thresiamma George vs The State Of Kerala on 7 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 20190 of 2010(W)


1. THRESIAMMA GEORGE, W/O.LATE A.J.GEORGE,
                      ...  Petitioner
2. JOSEPH GEORGE, S/O.LATE A.J.GEORGE,
3. ALICE MATHEW, W/O.MATHEW,
4. GEORGE GEORGE, S/O.LATE A.J.GEORGE,

                        Vs



1. THE STATE OF KERALA,
                       ...       Respondent

2. DISTRICT REGISTRAR (GENERAL),

3. SUB REGISTRAR,

4. SHOBHA KUNJAPPAN, W/O.KUNJAPPAN,

                For Petitioner  :SRI.MANUEL KACHIRAMATTAM

                For Respondent  : No Appearance

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :07/07/2010

 O R D E R
                             S. Siri Jagan, J.
                =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
                       W.P(C) No. 20190 of 2010
                =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=
                 Dated this, the 7th day of July, 2010.

                            J U D G M E N T

Petitioners are legal heirs of late A. J. George who instituted

O.S.No. 143/1996 before the Sub Court, Pala against the 4th

respondent herein. The suit was one for specific performance of a

contract for sale in respect of certain properties or in the alternative

for realisation of damages. The suit was ultimately decreed and the

plaintiff was directed to deposit Rs. 1,09,000/- towards the

consideration of the sale within two weeks. The defendant, who is the

4th respondent herein, was directed to execute the sale deed in

favour of the plaintiff within one month from the date of receipt of

the notice of deposit. The plaintiff remitted the amount of Rs.

1,09,000/- on 14-7-1997. But the 4th respondent filed A.S.No. 81/1998

before this Court against Ext. P1 decree. When the same came up for

hearing on 11-2-2010, the parties settled the matter between

themselves. The parties agreed that half of the properties shall be

sold to the petitioners herein. Accordingly, for the proportionate sale

consideration, a sale deed was executed by the 4th respondent in

favour of the petitioners. The petitioners presented the same before

the 3rd respondent for registration. But, the 3rd respondent returned

the same as per Ext. P4 stating that the presenter has refused to remit

the prescribed registration fee. Against Ext. P4, the petitioners

preferred an appeal before the 2nd respondent. The 2nd respondent

dismissed the appeal by observing that the petitioners are to remit the

registration fee on the basis of the fair value fixed by the Government

for the property as per the amended provisions of the Kerala Stamp

Act. It is under the above circumstances, the petitioners have filed

this writ petition seeking the following reliefs:

“(i) Call for the records relating to the issuance of Ext. P4

W.P.C. No. 20190/2010 -: 2 :-

proceedings and Ext. P6 order by the 3rd and 2nd respondents and
quash the same by issuing a writ of certiorari or other appropriate
writ or order.

(ii) Issue a writ of mandamus or any other appropriate writ,
order or direction directing the 3rd respondent to register Ext. P3
sale deed by levying stamp duty and fix registration fees on the
basis of actual sale consideration made by the petitioners as per
Ext. P2 judgment.”

2. The petitioners’ contention is that the amendment is not

applicable to the sale proceedings because the O.S was decreed as

early as in 1997 at which time, the amendment of the Stamp Act

directing payment of stamp duty and registration fee on the fair value

had not been brought into force. Further, according to the learned

counsel for the petitioners, stamp duty is payable only on the actual

consideration payable for the same, which, in this case, is as per the

compromise decree of this Court in A.S.No. 81/1998.

3. On the other hand, the learned Government Pleader would

contend that the stamp duty payable on an instrument is as on the

date of execution of the instrument and not as on a day prior to the

same. He further submits that as on the date of execution of the sale

deed, the amendment had already been brought into force. He points

out that as per Article 22 of the Schedule to the Kerala Stamp Act,

stamp duty payable on a conveyance is the stamp duty at the rate

stipulated therein on the fair value of the land or the amount or

value of the consideration for such conveyance, whichever is higher.

Therefore, according to the learned Government Pleader, the

petitioner is liable to pay stamp duty as also registration fee on the

fair value fixed for the land. The learned Government Pleader submits

that for this purpose, fair value has already been fixed by the

Government, which is higher than the consideration. Therefore, the

petitioners are bound to pay the stamp duty on the sale deed in

question at the appropriate rate on the fair value of the land, is his

contention.

W.P.C. No. 20190/2010 -: 3 :-

4. I have considered the rival contentions in detail.

5. The amended Article 22 of Schedule I to the Stamp Act reads

thus:

“22. Conveyance as defined by
S. 2(d), not being a transfer
charged or exempted under
No. 55 of immovable property
situated,-

(i) within the Municipalities/ Eight rupees for every rupee
Township/Cantonments 100 or part thereof of the fair
other than Corporation value of the land or the amount
or value of the consideration for
such conveyance, whichever is
higher.”

(underlining supplied)

As is clear therefrom, the stamp duty is to be calculated on the fair

value of the land or the amount or value of the consideration for such

conveyance, whichever is higher. The petitioners could not dispute

the fact that fair value has been fixed for this purpose. It is an

admitted fact that consideration shown in the sale deed is less than

the fair value so fixed. That being so, going by the provisions of the

Kerala Stamp Act, the petitioners are liable to pay stamp duty on the

fair value fixed for the land and not the consideration included in the

sale deed. That being so, the petitioners are liable to pay stamp duty

on the fair value.

Therefore, there is no merit in the writ petition and accordingly

the same is dismissed.

Sd/- S. Siri Jagan, Judge.

Tds/

[TRUE COPY]

P.S TO JUDGE.