R Ravindranathan Nair vs The Sub Registrar, Edapally
2023 Latest Caselaw 8812 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     MONDAY, THE 14TH DAY OF AUGUST 2023 / 23RD SRAVANA, 1945
                        WP(C) NO. 20714 OF 2023
PETITIONER/S:

    1     R RAVINDRANATHAN NAIR, AGED 78 YEARS
          SON OF TR NARAYANAN NAIR, RESIDING AT NRRA 10 B,
          KAUSTHUBHAM, NETTAYIKODATHU 2ND CROSS ROAD,
          PALARIVATTOM, KOCHI, PIN - 682025
    2     R GEETHA LAKSHMI, AGED 69 YEARS
          WIFE OF R RAVINDRANATHAN NAIR, RESIDING AT NRRA 10 B,
          KAUSTHUBHAM, NETTAYIKODATHU 2ND CROSS ROAD,
          PALARIVATTOM, KOCHI, PIN - 682025
          BY ADVS.
          SNEHA M.S.
          G.HARIHARAN
          PRAVEEN.H.
          K.S.SMITHA
          AMAL DEV D
          T.T.SHANIBA


RESPONDENT/S:

    1     THE SUB REGISTRAR, 28P2+4PJ, RAILWAY STATION ROAD,
          NEARBY EDAPALLY RAILWAY STATION, PONEKKARA, EDAPALLY,
          ERNAKULAM,KERALA, PIN - 682024
    2     KISHORE GOPALAKRISHNA PILLAI, AGED 51 YEARS
          SON OF R GOPALAKRISHNA PILLAI, RESIDING AT KISHOREY,
           BM ROAD, EDAPALLY, ERNAKULAM DISTRICT, PIN - 682024
          BY ADV ADVOCATE GENERAL OFFICE KERALA




          SMT.DEEPA V.(G.P)
          SRI. T.N. MANOJ, FOR 2ND RESPONDENT


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 20714 OF 2023           2



                                 JUDGMENT

Petitioners are the parents of one Smitha R. Nair, who

expired on 31.03.2022. The 2 nd respondent is the son-in-law of

the petitioners. There were some disputes between the

petitioners and the 2nd respondent and O.S. No.1121 of 2022 was

filed before the Munsiff's Court, Ernakulam, by the petitioners.

In that suit, a mediated settlement was arrived at between the

parties. Ext.P1 is the mediation agreement. One of the terms of

Ext.P1 is that plaint B schedule property (which was absolutely

owned and possessed by the deceased Smitha R. Nair) will be

gifted/settled in favour of the petitioners. The petitioners have

approached this Court, being aggrieved by the fact that the 1 st

respondent is taking the stand that the deed proposed to be

executed by the 2nd respondent in favour of the petitioners cannot

attract the lower rate of stamp duty payable on a gift deed

executed between the family members [under Article 31(a) of the

Schedule to the Kerala Stamp Act] or a settlement deed between

family members under Article 51A(a) of the said Schedule .

2. Learned counsel appearing for the petitioners, with

reference to Article 31(a) and Article 51A(a) of the Schedule to

the Kerala Stamp Act, would submit that where the

gift/settlement is between members of the family and/or legal

heirs of the deceased family member, the lower rate of duty (duty

is the same whether it is a gift deed or a settlement deed) would

apply. It is submitted that going by the provisions of the Hindu

Succession Act, the husband is a legal heir of his deceased wife

and the parents of late Smith R. Nair are also members of her

family. Therefore, it is submitted that when the 2 nd respondent

executes a deed (whether that be a gift deed or a settlement

deed) in favour of the parents of deceased Smitha R. Nair and in

respect of the property which exclusively belonged to late Smitha

R. Nair, the said document would attract only the lower rate of

duty.

3. Learned Government Pleader would submit that, an

almost identical question was considered by a Full Bench of this

Court in Abdul Muneer and Another V. Sub Registrar, Tirur

and Others [2018 (1) KHC 207] , where in Paragraph No.24,

this Court held as follows:-

''24. The conclusion of the Division Bench as above, we regrettably say, do not appear to be in proper perspective of the specific provisions of Article 42 and its Explanation. When the Explanation specifies a family for the purpose of Article 42(1) to mean father, mother, grandfather, grandmother, husband, wife, son, daughter, grandchildren, brother, sister and the legal heirs of deceased children, then only those co- owners of a property who are related to one another in one of the specific and enumerated relationships, at the time of execution of the partition deed, would obtain the benefit of a lower stamp duty

under Article 42(1) of the Schedule to the Act. To illustrate, take the case of two brothers. Since brothers fall into the categories of relationships in the Explanation, a partition between them would attract a lower stamp duty under Article 42(1). However, this position will get altered when one of the brothers die and his son/daughter inherits the share. The son/daughter of the deceased brother stand in the relationship of nephew/niece with the surviving brother of their father. The relationship of uncle, nephew/niece are not included in the enumerated relationships in the Explanation. Hence a deed of partition between them would not obtain the benefit under Article 42(1). For further illustration, take the case of a father and two sons. A partition deed among them would certainly be eligible to the benefit of lower stamp duty under Article 42(1).

Now, assume that one of the sons die and that his son inherits his share. When this happens, the family consists of a grandfather, son and a grandson. The relationship of a grandson with the son is that of the uncle and nephew and a partition solely between them would take the deed out of the reach of Article 42(1). However, since he is a grandchild in his relationship with the grandfather and since the other two are father and son in their relationship, a partition among three of them would be within the precincts of Article 42(1) should the grandfather die leaving the other two, such benefit would again terminate, since the surviving members are positioned to each other as uncle and nephew.''

4. Learned counsel appearing for the 2 nd respondent

would support the contentions taken by the learned counsel

appearing for the petitioners.

5. Learned counsel appearing for the petitioners, in

reply, would refer to the judgment of this Court in

Kunjithomman E.T. V. State of Kerala and Others [2020

KHC 3660], to contend that after noticing the Full Bench

judgment and the amendments made to the Schedule to the

Kerala Stamp Act, this Court took the view that the amendment

to the Stamp Act bringing in the legal heirs of a deceased family

member also within the definition of 'family' for the purposes of

determining the eligibility to the lower rate of stamp duty would

make a considerable difference to the law laid down by the Full

Bench in Abdul Muneer (supra) as those amendments were

after the judgment of the Full Bench. It is pointed out that the

judgment of the Full Bench was on 16.10.2017 while the

amendments in question were incorporated by the Kerala

Finance Act, 2018, which came into force with effect from

01.04.2018. It is also submitted that since the 1 st respondent has

also taken an objection that since there are some money

transactions, which are noted in Ext.P1 mediation settlement,

the document cannot be registered as a gift deed and petitioners

and the 2nd respondent are willing to register the document as a

settlement deed.

6. Having heard the learned counsel appearing for the

petitioners and the learned Government Pleader appearing for

the 1st respondent and the learned counsel appearing for the 2 nd

respondent, I am of the view that the petitioners are entitled to

succeed. The term 'Family' is defined in Section 2(fb) of the

Kerala Stamp Act, 1959 as under:-

''Family'' means father, mother, grandfather, grandmother, husband, wife, son, adopted son, daughter, adopted daughter, grandchildren, brother and sister.''

The petitioners are clearly persons, who fall within the definition

of family vis- a- vis, the deceased Smitha R. Nair. Article 51A(a)

of the Schedule to the Kerala Stamp Act reads as under:-

''51. Settlement - A. instrument of (including a deed of dower).

(a) Where the settlement is in favour of any of the members of family and /or legal heirs of the deceased family member.''

Going by the provisions of the Hindu Succession Act, the 2 nd

respondent is a legal heir of the deceased Smitha R. Nair, being

her husband. Therefore, any document, that may be executed

between the 2nd respondent and the petitioners would be a

document between the legal heirs of a deceased family member

and other family members.

Therefore, this writ petition is allowed and the 1 st

respondent is directed to register the document, that may be

presented by the 2nd respondent in respect of the property

belonging to the deceased Smitha R. Nair in favour of petitioners

1 and 2 as a settlement deed subject to compliance with usual

formalities. The stamp duty on the said deed would be payable

terms of Article 51A(a) of the Schedule to the Kerala Stamp Act.

Sd/-

ajt                                                       GOPINATH P., JUDGE




                      APPENDIX OF WP(C) 20714/2023

PETITIONER EXHIBITS
Exhibit P1              A TRUE COPY OF THE SETTLEMENT AGREEMENT DATED
                        NIL ENTERED INTO BETWEEN THE PARTIES TO OS

1121/2022 PENDING BEFORE THE MUNSIFF COURT, ERNAKULAM Exhibit P2 A TRUE COPY OF THE BASIC TAX RECEIPT DATED 12/06/2023 EVIDENCING THE INHERITANCE TRANSFER EFFECTED IN FAVOUR OF THE 2ND RESPONDENT WITH RESPECT TO THE PROPERTY ORIGINALLY OWNED BY THE PREDECEASED DAUGHTER OF THE PETITIONERS Exhibit P3 A TRUE COPY OF THE DRAFT GIFT DEED DATED NIL EXECUTED BY THE 2ND RESPONDENT IN FAVOR OF THE PETITIONERS