P K Venugopala Mallan vs The Sub Registrar
2023 Latest Caselaw 3237 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
            THE HONOURABLE MR. JUSTICE GOPINATH P.
  THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                    WP(C) NO. 6083 OF 2023
PETITIONER/S:

    1     P K VENUGOPALA MALLAN
          AGED 79 YEARS
          PUTHENVEETTIL, CHIRAKKAKAM KARA, VARAPUZHA P.O.,
          VARAPUZHA VILLAGE ERNAKULAM DISTRICT, PIN - 685317

    2     ROOPESH MALLAN
          AGED 42 YEARS
          S/O RENGANATHA MALLAN, PUTHENVEETTIL, CHIRAKKAKAM
          KARA, VARAPUZHA P.O, VARAPUZHA VILLAGE, ERNAKULAM,
          PIN - 685317

    3     REJITHA
          AGED 35 YEARS
          D/O RENGANATHA MALLAN PUTHENVEETTIL, CHIRAKKAKAM
          KARA, VARAPUZHA P.O., VARAPUZHA VILLAGE ERNAKULAM
          DISTRICT, PIN - 685317

         BY ADV T.K.AJITHKUMAR (VALATH)



RESPONDENT/S:

    1     THE SUB REGISTRAR
          ALANGAD SUB REGISTRAR OFFICE, KONGORPILLY,
          VARAPUZHA, PIN - 683518

    2     THEE DISTRICT REGISTRAR (GENERAL ), ERNAKULAM
          DISTRICT REGISTRAR OFFICE, KPCC JUNCTION, OPPOSITE
          MAHARAJAS COLLEGE GROUND, KOCHI, PIN - 682011

          BY smt.C.S. SHEEJA -SR. GOVERNMENT PLEADER


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.6083/2023                     2

                            JUDGMENT

The petitioners have approached this Court with a grievance

that Ext.P6 partition deed is not being accepted for registration by

the 1st respondent on the premise that the said deed is not a deed of

partition, but, is a sale deed in respect of which stamp duty has to

be paid as applicable to sale deeds and not as applicable to partition

deeds.

2. The learned counsel for the petitioners would submit

that Ext.P6 deed can only be a partition deed as all the properties

that are sought to be distributed amongst the various parties are the

properties in which all of them have title and interest. It is also

submitted that all the properties in question originally belonged to

the parents of the 1st petitioner and the grandparents of respondents

2 and 3 who are the children of the deceased brother of the 1 st

petitioner. It is also pointed out that one of the properties sought to

be partitioned belonged jointly to the petitioner and the deceased

father of petitioners 2 and 3.

3. The learned Senior Government Pleader would submit

that while the properties belonging in common to the parties to the

partition deed alone can be the properties that are subject matter of

the deed of partition and in all other cases, if an item of property is

being transferred to another, the transaction will have to be

considered as one of sale and not of partition. However, she

submits that the 1st respondent can be directed to consider the

matter with reference to the claims raised by the petitioners in

order to see whether Ext.P6 can be registered as a partition deed or

not.

4. Having heard the learned counsel for the petitioners and

the learned Senior Government Pleader appearing for the

respondents, this writ petition will stand disposed of directing the

1st respondent to examine as to whether the properties in question

are properties in which all the parties to the partition deed (who

also have to be members of a 'family' as defined) have interest and

title and if so, to permit the registration of the document as a

partition deed. If it is found necessary, the documents can also be

forwarded for the adjudication of the District Registrar as

contemplated by the provisions of Section 45 of the Stamp Act. Let

the needful be done within a period of two months from the date of

receipt of a certified copy of this judgment. If the 1 st respondent

finds that the deed can be registered as a partition deed even

without referring it for adjudication of the District Registrar, the 1 st

respondent shall ensure that the registration is completed on or

before 31.3.2023. sd/-

GOPINATH P.

JUDGE acd

APPENDIX OF WP(C) 6083/2023

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE DEATH CERTIFICATE DATED 15-1-1987 OF KRISHNA MALLAN

Exhibit P2 THE TRUE COPY OF THE DEATH CERTIFICATE DATED 30-1-1999 OF RUGMINI AMMA

Exhibit P3 THE TRUE COPY OF THE RELATIONSHIP CERTIFICATE DATED 15-10-2022

Exhibit P4 THE TRUE COPY OF THE WILL DEED NO.101/2015 DATED 16-6-2015

Exhibit P5 THE TRUE COPY OF THE DEATH CERTIFICATE DATED 20-9-2021 OF RANGANATHA MALLAN

Exhibit P6 THE TRUE COPY OF THE PARTITION DEED DATED 2-2-2023 EXECUTED BETWEEN THE PETITIONERS

Exhibit P7 THE TRUE COPY OF THE PAY IN SLIP DATED 1-2-2023 FOR PAYMENT OF STAMP AND REGISTRATION FEE