IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 27TH DAY OF MAY 2022 / 6TH JYAISHTA, 1944
WP(C) NO. 2136 OF 2022
PETITIONERS:
1 MUHAMED IQUBAL, AGED 51 YEARS, S/O.HASSAN, POOCHENGAL
HOUSE, CHERIYAMUNDAM, THALAKKADATHOOR P.O,
TIRUR,MALAPPURAM- 676103
2 RAHMATHULLA POOCHENGAL, AGED 43 YEARS, S/O. HASSAN,
POOCHENGAL HOUSE, THALAKKADATHOOR P.O, TIRUR,
MALAPPURAM- 676103.
THROUGH HIS POWER OF ATTORNEY HOLDER
SRI.MUHAMEDIQUBAL, S/O. HASSAN, AGED 51 YEARS,
POOCHENGAL HOUSE, CHERIYAMUNDAM, THALAKKADATHOOR P.O,
TIRUR, MALAPPURAM- 676103.
3 POOCHENGAL SHARAFUDDEEN, AGED 47 YEARS
S/O. HASSAN, POOCHENGAL HOUSE,
THALAKKADATHOOR P.O, TIRUR, MALAPPURAM- 676103.
THROUGH HIS POWER OF ATTORNEY HOLDER
SRI.MUHAMED IQUBAL, S/O. HASSAN, AGED 51 YEARS,
POOCHENGAL HOUSE, CHERIYAMUNDAM, THALAKKADATHOOR P.O,
TIRUR, MALAPPURAM- 676103
ENOCH DAVID SIMON JOEL
S.SREEDEV
RONY JOSE
LEO LUKOSE
SUZANNE KURIAN
CIMIL CHERIAN KOTTALIL
RESPONDENTS:
1 DISTRICT REGISTRAR GENERAL, DISTRICT REGISTRAR
OFFICE, MALAPPURAM- 676505.
2 SUB REGISTRAR, SUB REGISTRAR OFFICE, TIRUR,
MALAPPURAM- 676101
SMT MABLE C KURIAN SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 2136 OF 2022
2
JUDGMENT
The petitioners, who are stated to be brothers, allege that when they presented a partition deed among themselves with respect to the property involved in this case, it has been refused to be accepted by the Sub Registrar, saying that it is deficient in stamp duty and that they are not entitled to the benefits under Section 42(a) of the Schedule to the Kerala Stamp Act (for short 'Schedule to the Act').
2. Sri.S.Sreedev, learned counsel for the petitioners, explained his clients' case saying that the property was purchased by them jointly and held in common. He submitted that in such circumstances that they executed a partition deed, so as to divide the property by metes and bounds and that since they are brothers, the declarations of this Court in Abdul Muneer v Sub Registrar [2018 (1) KLT 238 (F.B)] would fully apply, thus making the benefits under Section Section 42(a) of Schedule to the Act eligible to them. He contended that, therefore, the stand of the second respondent
- Sub Registrar, that they must pay ad valorem stamp duty is without basis.
3. The learned Senior Government Pleader, however, WP(C) NO. 2136 OF 2022 3 very interestingly, submitted that the real issue with respect to the partition deed is not as regards the relationship of the petitioners, but because it has shown that the petitioners hold "Janmam" right over the property in question, while their predecessor-in-interest only held "Kanam" rights over it. She asserted that, therefore, the second respondent was justified in refusing to register the Partition Deed, unless it had been properly amended.
4. When I evaluate the afore submissions, it is without doubt that the real issue of this case is not with respect to the stamp duty payable on the partition deed, but with respect to the "Janmam" rights over it.
5. Though the Sub Registrar would be justified in refusing to register the partition deed for the reason stated afore by the learned Senior Government Pleader, he ought to have informed the petitioners appropriately in this regard, rather have refused to act upon their request.
6. That said, as far as the stamp duty is concerned, it is without doubt that going by Abdul Muneer (supra), the petitioners, who are stated to be brothers, are prima facie entitled to the benefits under Section 42(a) of Schedule to the Act.
WP(C) NO. 2136 OF 2022 4 Resultantly, I allow this writ petition and direct the second respondent to take up the application of the petitioners for registration of partition deed and to complete proceedings thereon, after affording them an opportunity of being heard, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.
Needless to say, if there is any defect noticed by the Sub Registrar with respect to the nature of property or its tenure, the same shall be intimated to the petitioners, who will, subject to their available remedies, accede to the same, so as to enable its registration in terms of law.
Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 2136 OF 2022 5 APPENDIX OF WP(C) 2136/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF SALE DEED NO. 4318/2005 DATED 23.12.2005 OF TIRUR SRO Exhibit P2 TRUE COPY OF THE PURCHASE CERTIFICATE BEARING NO. 59/2006 DATED 28.01.2006 ISSUED BY THE LAND TRIBUNAL, MALAPPURAM Exhibit P3 A TRUE COPY OF THE PARTITION DEED DATED 01.12.2021 EXECUTED AMONGST THE PETITIONERS.