Muhamed Iqubal vs District Registrar General
2022 Latest Caselaw 5720 Ker

               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

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

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

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.