IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 996 of 2010(O)
1. PADMAKUMARY, AGED 52 YEARS,
... Petitioner
2. SUGANDH, AGED 20 YEARS,
Vs
1. LEKSHMIKUTTY AMMA, PUTHEN VEEDU,
... Respondent
For Petitioner :SRI.J.JAYAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :18/01/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
----------------------------------------
W.P.(C).No.996 OF 2010
--------------------------------
Dated this the 18th day of January 2010
----------------------------------------------------------
JUDGMENT
The writ petition is filed seeking the following reliefs.
i) Set aside Ext.P2 order passed by the Sub Judge’s
Court, Attingal.
ii) Direct the court below to refund the Stamp Duty
remitted by the petitioners in their 2/3 share within the time
limit fixed by this Hon’ble Court, in the light of Article 42 of
Kerala Stamp Act.
Iii) Grant such other relief that this Hon’ble Court deem
fit and proper in the circumstances of the case.
2. Challenge raised in the writ petition is against Ext.P2
order passed by the learned Sub Judge dismissing an
application moved by the petitioners for refund of the court
fee, which, according to them, was paid by mistake in
respect of the share alloted to them under a compromise
decree passed in a suit for partition. The parties entered
into a compromise by which petitioners were provided 2/3 of
the plaint property and the defendant 1/3 share in that
property. Previously compromise petition filed by the
parties as indicated above was refused to be accepted by
W.P.(C).No. 996 OF 2010 Page numbers
the court holding that the parties have to file a fresh suit to
give effect to that compromise. Final decree application was
dismissed by the court taking note of the compromise
agreement produced by the parties. That order was
challenged before this court and vide Ext.P1 judgment.
Setting aside the order the court below it was directed to
reexamine the matter afresh and dispose of the final decree
proceedings passing appropriate orders on the compromise
petition produced by the parties. Pursuant thereto, it is
submitted by the learned counsel for the petitioner, the
court below has passed an ‘order’ but not a judgment
accepting the terms of the compromise incorporating them
final decree. No direction was also given in the order as to
what should be the stamp fee to be paid by the respective
sharers/plaintiffs and defendant in the suit. The learned
counsel for the petitioners handed over to me a copy of the
order dated 21/08/2009 passed by the court disposing the
final decree proceedings. Clearly the court has overlooked
the provisions of law which mandate for the passing of a
final judgment closing the final decree proceedings. It is
W.P.(C).No. 996 OF 2010 Page numbers
also seen that the court has given a go by to Rule 236 of the
Civil Rules of Practice which mandates that in a final
judgment in a partition suit, direction should be given by the
court as to the deposit of the amount required for purchase
of the nonjudicial stamp paper to engross the final decree in
proportion to the value of their shares stipulating that in the
event of default by one or the other party, it may be a
charge on the property alloted to the party who tenders the
entire amount due for purchasing the stamp paper.
However, as the challenge canvassed in the present writ
petition is confined to the declining of the request made by
the petitioners for refund of the amount tendered by them
towards purchase of the stamp paper in respect of their 2/3
share, I need not pass any direction with respect to the
order passed by the court disposing of the final decree
proceedings. It will be open to the petitioners to file a
review petition before the court below bringing to its notice
the relevant provisions of law mandating the passing of a
final judgment complying with the rules. If any such
application is filed, the court below shall consider it taking
W.P.(C).No. 996 OF 2010 Page numbers
note of the observations made above and dispose it in
accordance with law. Petitioners contend that in a partition
suit, after a decree is passed, they need only pay the
requisite amount for the lesser share alloted in the decree
and not in respect of the major share alloted to any of the
sharers. The case so canvassed by the petitioners has to be
accepted in the light of Article 42 of the Kerala Stamp Act.
In the present case, petitioners have been alloted 2/3 share
under the compromise entered by the parties, which had
been accepted by the court, 2/3 share, and the respondent,
1/3 share. Stamp fee for the lesser share ie, 1/3 share alone
need be paid for engrossing the final decree as
contemplated under Rule 236 of the Civil Rules of Practice.
It is noticed that the petitioner, relying on the above rule,
has sought for refund of the entire amount which was
tendered by them for purchasing the stamp paper. That
cannot be. Petitioners are also bound to pay 2/3 of the
amount due in respect of the stamp fee payable on the 1/3
share alloted to the defendant. In “A.L.Sivaraman and
others v The State of Kerala”(AIR 1993 KERALA 17) this court
W.P.(C).No. 996 OF 2010 Page numbers
has held that the parties to the partition deed have to meet
the expenses for purchasing the stamp paper in proportion
to their respective shares in the whole property partitioned.
Petitioners had contended that they are not liable to pay the
amount due from them in respect of the lesser share though
it has been alloted in favour of the respondent. The
petitioners are also liable to pay the required amount in
respect of the stamp papers purchased for engrossing the
final decree. The order passed by the learned Sub Judge
challenged in the writ petition is set aside and he is directed
to take note of the observations made above and pass
appropriate orders. If the court finds that any excess
amount was paid by the petitioners over and above the sum
which has to be paid by them, appropriate orders are to be
passed enabling them to claim refund. Subject to the above
observations, writ petition is disposed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
vdv P.A TO JUDGE