Kerala High Court

Kunjumalu Pattathiar vs State Of Kerala on 18 January, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                   &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

        MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                          WA.No.1656 OF 2020

  AGAINST THE JUDGMENT DATED 24.02.2020 IN WP(C) 4302/2020(K) OF HIGH
                          COURT OF KERALA


APPELLANT/PETITIONERS:

       1      KUNJUMALU PATTATHIAR,
              AGED 70 YEARS
              W/O. LATE KUNJU EZHUTHACHAN, KIZHAKKETHIL HOUSE,
              MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

       2      BABY,
              AGED 55 YEARS
              KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR,
               PALAKKAD-678 592.

       3      KUTTAN,
              AGED 54 YEARS
              S/O. LATE KUNJU EZHUTHACHAN, KIZHAKKETHIL HOUSE,
              MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592.

       4      KRISHNANKUTTY,
              AGED 51 YEARS
              KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR,
              PALAKKAD-678 592.

       5      MOHANAN,
              AGED 46 YEARS
              KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR,
              PALAKKAD-678 592.

       6      RAJALAKSHMI,
              AGED 42 YEARS
              KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR, PALAKKAD-
              678 592.
 W.A. Nos. 1656/2020 &               : 2:
96/2021

       7       SATHI C.R.,
               AGED 44 YEARS
               W/O. LATE MANIKANDAN, KIZHAKKETHIL HOUSE, MUNDOOR
               VILLAGE, PUDANUR, PALAKKAD-678 592.

       8       RESHMI K.A,
               D/O. LATE MANIKANTAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE,
               PUDANUR, PALAKKAD-678 592.

       9       SREENANDU,
               D/O. LATE MANIKANTAN, KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE,
               PUDANUR, PALAKKAD-678 592.

               BY ADV. SRI.CIBI THOMAS

RESPONDENTS/RESPONDENTS:

       1       STATE OF KERALA
               REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,
               SECRETARIAT, THIRUVANANTHAPURAM-1.

       2       THE DISTRICT REGISTRAR,
               DEPARTMENT OF REGISTRATION, PALAKKAD-678 001.

       3       THE SUB REGISTRAR,
               OFFICE OF THE SUB REGISTRAR, PARALI,
               PALAKKAD DISTRICT-678 612.

       4       THE VILLAGE OFFICER,
               MUNDOOR VILLAGE OFFICE, PALAKKAD-678 592.


      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.01.2021, ALONG
      WITH WA.96/2021, THE COURT ON THE SAME DAY DELIVERED THE
      FOLLOWING:
 W.A. Nos. 1656/2020 &                :3:
96/2021


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                     &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

       MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                            WA.No.96 OF 2021

 AGAINST THE JUDGMENT DATED 24.02.2020 IN WP(C) 4302/2020(K) OF HIGH
                         COURT OF KERALA


APPELLANTS/RESPONDENTS IN W.P.(C):

       1       STATE OF KERALA
               REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,
               SECRETARIAT, THIRUVANANTHAPURAM-695 001

       2       THE DISTRICT REGISTRAR,
               DEPARTMENT OF REGISTRATION, PALAKKAD-678 001

       3       THE SUB REGISTRAR,
               OFFICE OF THE SUB REGISTRAR, PARALI,
               PALAKKAD DISTRICT-678 612

       4       THE VILLAGE OFFICER,
               MUNDOOR VILLAGE OFFICE, PALAKKAD-678 592

               BY SRI. ARAVINDAKUMAR BABU, SR. GOVERNMENT PLEADER

RESPONDENTS/PETITIONERS IN W.P.(C):

       1       KUNJUMALU PATTATHIAR
               AGED 70 YEARS
               W/O. LATE KUNJU EZHUTHACHAN, KIZHAKKETHIL HOUSE,
               MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

       2       BABY,
               AGED 55 YEARS
               KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR,
               PALAKKAD-678 592
 W.A. Nos. 1656/2020 &              :4:
96/2021

       3       KUTTAN,
               AGED 54 YEARS
               S/O. LATE KUNJU EZHUTHACHAN, KIZHAKKETHIL HOUSE,
               MUNDOOR VILLAGE, PUDANUR, PALAKKAD-678 592

       4       KRISHNANKUTTY,
               AGED 51 YEARS
               KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUNDANUR,
               PALAKKAD-678 592

       5       MOHANAN,
               AGED 46 YEARS
               KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR,
               PALAKKAD-678 592

       6       RAJALAKSHMI,
               AGED 42 YEARS
               KIZHAKKETHIL HOUSE, MUNDOOR VILLAGE, PUDANUR,
               PALAKKAD-678 592

       7       SATHI C.R,
               AGED 44 YEARS
               W/O. LATE MANIKANDAN, KIZHAKKETHIL HOUSE, MUNDOOR
               VILLAGE, PUDANUR, PALAKKAD-678 592

       8       RESHMI. K.A,
               D/O.LATE MANIKANDAN, KIZHAKKETHIL HOUSE,MUNDOOR
               VILLAGE, PUDANUR, PALAKKAD-678 592

       9       SREENANDU,
               D/O.LATE MANIKANTAN, KIZHAKKETHIL HOUSE, MUNDOOR
               VILLAGE, PUDANUR, PALAKKAD-678 592


               SRI.CIBI THOMAS FOR RESPONDENTS

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.01.2021,
      ALONG WITH WA.1656/2020, THE COURT ON THE SAME DAY DELIVERED
      THE FOLLOWING:
 W.A. Nos. 1656/2020 &                   :5:
96/2021



              Dated this the 18th day of January, 2021.

                              JUDGMENT

SHAJI P. CHALY, J.

The writ appeals are filed by the writ petitioners and the

respondents in the writ petition challenging the judgment of the

learned single Judge dated 24.02.2020 in W.P.(C) No. 4302 of 2020.

The reliefs sought for in the writ petition was mainly for quashing

Ext. P6 order dated 11.12.2019, which read thus:

1. Issue a writ of certiorari calling for the records leading to Ext. P6 and quash the original of the same.

2. Issue a writ of mandamus or any appropriate writ, order or direction directing the respondents to take steps to register Ext. P4 cancellation deed expeditiously.

3. To declare that the stamp duty payable for executing a registration deed is only Rs.500/- as provided under Article 15 of Kerala Stamp Act.

2. The learned single Judge, after taking into account the facts and

circumstances and the law involved, has entered into the following

observations, findings and conclusions:

4. The partition deed involves severance of interest in the property.

If there is a mistake on facts, this deed become void or voidable at the option of the executants. Appreciation of these facts can be done only by a civil court. The Registering Authority cannot appreciate and declare that a partition deed can be cancelled. As far

96/2021

as the Registrar is concerned competency of the parties alone need to be considered. When there is a partition deed executed by the parties concerned, the Registrar has to assume that there is a severance of interest. Whether the parties have acted upon the partition deed or not is a matter of appreciation of evidence. That cannot be done by the Registrar. If the Sub Registrar allows cancellation deed to be registered, it pre-suppose that the partition deed was not acted upon. That is not within the power of the Registrar.

5. If the cancellation deed is allowed to be registered it would result a serious repercussion on the rights and interest of the parties. That is the reason, law contemplates an adjudication by the civil court to declare it is void or voidable by invoking under Section 31(1) of the Specific Relief Act, 1963. Section 31 (1)reads thus:- "Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order to be delivered up and cancelled."

6. A proper remedy in such circumstances is to approach civil court

to declare the cancellation deed is void or voidable and thereafter,

forward the same to the Registering Authority to register as a follow

up such procedure, contemplated under Section 31 (2) of the

Specific Relief Act.

7. The demand made in Ext.P6 is unsustainable. It no way

would attract fees applicable for conveyance. The question is

whether a cancellation deed can be registered or not without order

of the civil court. Instead of answering the same, an attempt is being

made to impound on the documents and levy charges applicable for

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conveyance. Therefore, the demand made in Ext.P6 is set aside.

8. In view of the fact that all the parties have agreed to cancel

the deed, the civil court shall dispose the civil suit expeditiously as

possible, in the event such suit is filed by the petitioners, within a

period of six months."

It is, thus, challenging the legality and correctness of the said

judgment, rival parties have preferred these appeals.

3. The paramount contention advanced by the writ

petitioners/appellants is that there is no bar for cancelling the

document on the basis of the consensus arrived at between the

parties to the document. Further, according to the writ petitioners,

even the respondents do not have such a case and their only

dispute is regarding the quantum of stamp duty payable. That apart,

it was submitted that Ext. P4 cancellation deed was presented when

the Village Officer, Mundoor Village, Palakkad, issued Ext. P2

communication dated 24.08.2019 when application was filed for

allotment of thandaper account, that the re-survey number and the

thandaper of the property are shown incorrectly, and further that

the extent of property in possession of parties is seen more than

what is shown in the schedule. It was, therefore, stated that the

thandaper account will be allotted on production of the partition

deed after curing the defects. Therefore, the sum and substance of

the contention of the writ petitioners was that there is no other

96/2021

alternative than to cancel the partition deed in order to rectify the

mistakes so as to have a quietus to the whole issue.

4. On the other hand, the appeal is preferred by the

Government basically contending as to whether the objection raised

by the Sub Registrar in Ext. P6 impugned order is justified, in view

of Section 31 of the Kerala Stamp Act, 1959 ('Act, 1959' for short).

5. We have heard the learned counsel for the writ petitioners

Sri. Cibi Thomas and the learned Senior Government Pleader Sri.

Aravindakumar Babu for the appellants/respondents, and perused

the pleadings and materials on record.

6. In our view, a detailed and elaborate discussion of the

question raised by the parties in the appeal is not required, since

the appellants have virtually agreed that Ext. P6 impugned order

passed by the Sub Registrar and as extracted above is not in terms

of Section 31 of the Act, 1959. For convenience, Sections 31 and

32 of Act, 1959 are extracted hereunder:

31. Adjudication as to proper Stamp: (1) When any instrument, whether executed or not and whether previously stamped or not is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty, if any, with which it is chargeable, and pays a fee of fifty rupees the Collector shall determine the duty, if any, with which, in his judgment, the instrument is chargeable.

96/2021

(2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application, until such abstract and evidence have been furnished accordingly: Provided that --

(a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding except in any enquiry as to the duty with which the instrument to which it relates is chargeable; and

(b) every person by whom any such evidence is furnished shall, on payment of the full duty with which the instrument to which it relates, is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid.

32. Certificate by Collector: (1) When an instrument brought to the Collector under Section 31, is in his opinion, one of a description chargeable with duty, and

(a) the Collector determines that it already fully stamped, or

(b) the duty determined by the Collector under Section 31, or such a sum as, with duty already paid in respect of the instrument, is equal to the duty so determined, has been paid, the Collector shall certify by endorsement on such instrument that the full duty (stating the amount) with which it is chargeable has been paid.

96/2021

(2) When such instrument is, in his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable.

(3) Any instrument upon which an endorsement has been made under this section shall be deemed to be duly stamped or not chargeable with duty as the case may be; and, if chargeable with duty, shall be receivable in evidence or otherwise, and may be acted upon and registered as if it has been originally duly stamped. Provided that nothing in this section shall authorize the Collector to endorse:

(a) any instrument executed or first executed in India and brought to him after the expiration of one month from the date of its execution, or first execution, as the case may be;

(b) any instrument executed or first executed out of India and brought to him after the expiration of three months after it has been first received in the State; or

(c) any instrument chargeable with the duty of [twenty paise] or less than [twenty paise] when brought to him, after the execution thereof on paper not duly stamped."

7. On an analysis of Section 31 of Act, 1959, it is clear that if

and when there is a dispute with respect to the stamp to be affixed

on a document, it is to be necessarily brought to the notice of the

Collector in contemplation of the said provision and the Collector

alone is vested with powers to determine the duty, if any, with which

the instrument is chargeable. Reading together the provisions of

Sections 31 and 32, it is clear that Ext.P6 order passed by the Sub

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Registrar cannot be sustained under law.

8. In that view of the matter, the appeals are allowed by

quashing Ext.P6 and there will be a direction to the Sub Registrar,

Office of the Sub Registrar, Parali, Palakkad District to refer Ext.P4