Biyyakkutty Hajumma vs The State Of Kerala
2023 Latest Caselaw 9144 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                        WP(C) NO. 11394 OF 2023
PETITIONER/S:

    1     BIYYAKKUTTY HAJUMMA
          AGED 76 YEARS
          W/O. LATE KANNETH MOIDEEN KUTTY HAJI, KANNETH HOUSE ,
          CHERUR P.O, THIRURANGADI TALUK, MALAPPURAM DIST, PIN -
          676304
    2     MUSTHAFA KAMAL PASHA K
          AGED 43 YEARS
          S/O. LATE KANNETH MOIDEEN KUTTY HAJI, KANNETH
          HOUSE,CHERUR. P.O., THIRURANGADI TALUK, MALAPPURAM
          DIST, PIN - 676304
          BY ADV P.K.MOHAMED JAMEEL


RESPONDENT/S:

    1     THE STATE OF KERALA
          REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
          REGISTRATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN -
          695001
    2     THE SUB REGISTRAR
          VENGARA, VENGARA P.O., MALAPPURAM DIST, PIN - 676304
          BY ADV ADVOCATE GENERAL OFFICE KERALA




          SMT. DEEPA V (GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 11394 OF 2023                2



                                  JUDGMENT

The first petitioner is the mother of the 2 nd petitioner. The

1st petitioner together with her late husband, namely, Kanneth

Moideen Kutty Haji were absolute owners and in possession of

16.12 Ares of land in Survey No.226/11/92 of Kannamangalam

village, Thirurangadi Taluk, Malappuram district, which they

obtained as per jenm deed No.2223/1970 S.R.O., Thirurangadi.

The husband of the 1st petitioner died and his interest in the

property devolved upon the 1st petitioner, the 2nd petitioner and

his other siblings (other children of the 1 st petitioner and late

Moideen Kutty Haji). The 1st petitioner and the other siblings

executed a release deed (which is produced as Ext.P3), releasing

the rights they obtained on account of the death of late Moideen

Kutty Haji in the property in favour of the 2nd petitioner. Thus,

the resultant position is that the property in question is now

jointly owned by the petitioners. The petitioners thereafter

prepared a partition deed and presented the same for

registration. The partition deed was intended to partition the

total extent of properties between the petitioners in this writ

petition. That has been denied by the 2 nd respondent on the

ground that since the 2nd petitioner has 'purchased' the property,

the petitioners cannot present a deed for partition eventhough

they are members of a family as defined in Section 2(fb) of the

Kerala Stamp Act.

2. Learned counsel appearing for the petitioners would

submit that there is absolutely no ground upon which the Sub

Registrar could have denied registration of the document which

intends to execute partition of an extent of property between

members of a family. It is submitted that, admittedly, the

petitioners are mother and son and they belong to a 'family' as

defined in the Kerala Stamp Act. It is submitted that a deed of

partition can therefore be executed between the petitioners to

allot separate shares to each of the petitioners as the entire

extent of the property is now lying in the joint ownership of the

petitioners.

3. Learned Government Pleader refers to the counter

affidavit in this case and submits that through Ext.P4 order, the

2nd respondent had rejected the request to register the document

as a partition deed, taking into consideration the fact that each of

the petitioners are entitled to separate shares and as the 2 nd

petitioner had obtained rights over some extent of property

through a release deed executed by the 1 st petitioner and

siblings of the 2nd petitioner and therefore, any document for

partition executed between the petitioners would not attract the

lower rate of duty applicable in the case of partition among

family members.

4. Having heard the learned counsel appearing for the

petitioners and the learned Government Pleader, I am of the

opinion that the petitioners are entitled to succeed. The property

in question originally belonged to the 1 st petitioner and her late

husband. On the death of the husband of the 1 st petitioner, the 1st

petitioner and the children of the 1st petitioner and her late

husband (including the 2nd petitioner) became entitled to shares

in the property to the extent it belonged to the late husband of

the 1st petitioner. The 1st petitioner and the other siblings of the

2nd petitioner have executed Ext.P3 release deed, releasing the

rights obtained by them on account of the death of the 1 st

petitioner in favour of the 2nd petitioner. Thus, it cannot be

disputed that the petitioners are mother and son and that they

are jointly in ownership of the property, without separate shares

being allotted to each of them. It is also not disputed that the

petitioners fall within the definition of 'family' as defined in the

provisions of the Kerala Stamp Act. Therefore, the petitioners

have to be treated as a 'family' for the purposes of partition and

thus the lower rate of duty applicable to partition of property

between members of a family applies to the document presented

for registration.

The writ petition is therefore allowed. The 2 nd petitioner is

directed to consider Ext.P1 as a partition deed executed between

family members and to register the said document subject to

compliance with usual formalities and in accordance with the

law.

Sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF WP(C) 11394/2023

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PARTITION DEED EXECUTED BY PETITIONERS DATED 20.03.2023 IS Exhibit P2 THE TRUE COPY OF RECEIPT FOR ONLINE TOKEN REGISTRATION HAVING TOKEN NO. T6944255 ISSUED BY DEPARTMENT OF REGISTRATION Exhibit P3 THE TRUE COPY OF THE RELEASED DEED NO.

3752/2022 OF SRO VENGARA Exhibit P4 THE TRUE COPY OF THE ORDER DATED 19.05.2023 ISSUED BY 2ND RESPONDENT RESPONDENT EXHIBITS Exhibit R2(a) True copy of the Government letter No.111763/E3/88/TD dated 09.01.1989 Exhibit R2(b) relevant portion of the Manual order 234(1) of the Kerala Registration Manual Exhibit R2(c) True copy of the order No.RR (2) 600/18 dated 14.09.2020