IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36144 of 2010(P)
1. C.I.JOHNSON, AGED 48 YEARS,
... Petitioner
2. C.I.VINCENT, AGED 46 YEARS,
3. JAMUNA, AGED 39 YEARS,
Vs
1. SUB REGISTRAR,
... Respondent
2. DISTRICT REGISTRAR (GENERAL),
3. LAND REVENUE COMMISSIONER,
For Petitioner :SRI.P.SANTHOSH (PODUVAL)
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :01/02/2011
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 36144 OF 2010
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Dated this the 1st day of February, 2011
J U D G M E N T
First petitioner is the brother of the second petitioner and
the second petitioner is the husband of the third petitioner.
2. Ext.P1 is a sale deed whereby the first and third
petitioners have purchased 2 cents of land in Sy.No.1765/1 and 8
cents of land in Sy.No.1765/2, Poonkunnam Village. Ext.P2 is
another sale deed whereby the first and second petitioners,
brothers purchased 9.840 cents of land in Sy.No.27/1 of
Koorkkancherry Village.
3. Ext.P3 is styled as a partition deed to which petitioners
1 to 3 are parties. By this document, 10 cents of land covered by
Ext.P1 document referred to above and owned by petitioners 1
and 3 has been allotted to the share of the first petitioner and
9.840 cents of land covered by Ext.P2 title deed and owned by
petitioners 1 and 3 is allotted to the share of the second and third
petitioners, the husband and wife. When the document was
presented for registration, 1st respondent raised an objection that
stamp duty payable should be under Article 22 of the Kerala
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Stamp Act. The document was impounded and was sent to the
2nd respondent for adjudication under Section 37(2) of the Kerala
Stamp Act.
4. By Ext.P4 order, 2nd respondent held that the document
has to be treated as a release deed and stamp duty under Article
48 of the Stamp Act is payable. Against Ext.P4 order, petitioners
filed an appeal to the 3rd respondent invoking his appellate
powers under Section 54 of the Kerala Stamp Act. By Ext.P5
order, 3rd respondent held that the document consists of two
release deeds and stamp duty is payable under Article 48. It is
challenging Exts.P4 and P5 orders and praying that Ext.P3 shall
be registered as a partition deed, the writ petition has been filed.
5. The contention raised by the learned counsel for the
petitioners is that, on presentation of the original of Ext.P3, the 1st
respondent should have gone by the recitals contained in Ext.P3
itself and treating the parties to the document as co owners,
should have registered the document as a partition deed. This
contention of the learned counsel for the petitioners is sought to
substantiated by referring to the judgments in Venkatappa v.
Musal (AIR 1934 Madras 204), West Punjab Government v.
WPC No. 36144/10
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Gain Chand {AIR (36) 1949 Lahore 126}, N.Venkalah v.
J.V.Venkamma (AIR 1958 A.P. 457).
6. However, learned Government Pleader relied on
Section 2(k) of the Kerala Stamp Act and contended that a deed
of partition can be executed only if the parties thereto are actual
co owners. It is contended that in this case, there is no co
ownership and the properties were separate and distinct, and
therefore, there could not have been a partition among the
parties to the document.
7. Section 2(k) of the Kerala Stamp Act defines the
instrument of partition as follows:-
(k) “instrument of partition” means any instrument
whereby co-owners of any property divide or agree to
divide such property in severality, and includes also a final
order for effecting a partition passed by any Revenue
Authority or any Civil Court and an award by an arbitrator
directing a partition;
8. From the aforesaid statutory provision, it is clear that,
to be an instrument of partition, a document should be executed
by co-owners and by that document, the co ownership property
must be divided or agreed to be divided in severality. In this case,
the property which is claimed to be partitioned by Ext.P3 are
those covered by Exts.P1 and P2 sale deeds. Ext.P1 is the sale
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deed obtained by the petitioners 1 and 2 whereby they have
purchased 10 cents of property described in the schedule to the
document. Similarly, Ext.P2 is yet another document of sale
whereby petitioners 1 and 2 have purchased property mentioned
therein. Though it was possible for petitioners 1 and 3 to have
partitioned the property covered by Ext.P1 among themselves
and petitioners 1 and 2 to have partitioned the property covered
by Ext.P2 among themselves, these two properties could not have
been partitioned among the petitioners 1 to 3. In that process,
properties belonging to petitioners 1 and 3 could not have been
given to the first petitioner or the property belonging to
petitioners 1 and 2 could not have been given to petitioners 2 and
3. In that view of the matter, it cannot be said that Ext.P3 answers
the definition of “instrument of partition” as defined in the Kerala
Stamp Act.
9. In so far as the judgments relied on by the learned
counsel for the petitioners are concerned, those judgments were
rendered in the context of the provisions contained in the Stamp
Act, 1899. A close reading of the judgments show that all the
parties to the partition deeds which are referred to in the
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judgments had interest in the properties partitioned, unlike in this
case, where there is no mutuality of interest over the property
concerned. Therefore, I am not persuaded to think that the
principles laid down in those cases can be of any assistance while
interpreting Ext.P3 document and that too in the context of
Section 2(k) of the Stamp Act.
10. Learned counsel for the petitioners further contended
that it was the second petitioner, who raised funds on behalf of
the 3rd petitioner for the property covered by Ext.P1, and
therefore, the second petitioner should have been treated as a co
owner. In my view, when a document is presented for registration
before the Registrar, he will have to go by the recitals in the
document only, and if so appreciated, the 2nd petitioner cannot be
held to have any interest in the property covered by Ext.P1.
Therefore, that contention of the learned counsel for the
petitioners also does not merit acceptance.
In that view, I do not find any merit in the writ petition. Writ
petition is dismissed.
ANTONY DOMINIC, JUDGE
Rp