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