Kerala High Court

Suhara vs State Of Kerala on 3 April, 2024

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                 THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

     WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946

                         WP(C) NO. 19399 OF 2023

PETITIONERS:

     1     SUHARA
           AGED 55 YEARS
           W/O.MOHAMMEDALI, CHETTIYANTHODI, VATTALOOR P.O., KURUVA,
           VATTALUR, MALAPPURAM, KERALA, PIN - 676507
     2     FATHIMA
           AGED 60 YEARS
           W/O. MOIDEEN, PALLIPPURAM, CHERAKAPRAMBU.P.O.,
           ANGADIPPURAM, ANGADIPURAM, MALAPPURAM, PIN - 679321
     3     HAJARA
           AGED 52 YEARS
           W/O. USMAN, CHUNKAN MUNDAKKUNNU, EDATHANATTUKARA,
           ALANALLUR 3, ALANALLUR, PALAKKAD, PIN - 678601
     4     HAFSA
           AGED 46 YEARS
           W/O. BADARUDDEEN KC, KARIMBANA CHUNDANGAYIL HOUSE,
           PERINTHALMANNA, MALAPPURAM, KUNNAPPALLY, KERALA, PIN -
           679322
           BY ADV E.C.AHAMED FAZIL


RESPONDENTS:

     1     STATE OF KERALA
           REPRESENTED BY ITS SECRETARY, DEPARTMTNET OF
           REGISTRATION, SECRETARIAT, THIRUVANANTHAPURAM-, PIN -
           985001
     2     SUB REGISTRAR, PERINTHALMANNA
           OFFICE OF THE SUB REGISTRAR, PERINTHALMANNA, MALAPPURAM
           DISTRICT, PIN - 679322

OTHER PRESENT:

           GP - DEEPA V.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C). No.19399 of 2023        :2:



                          VIJU ABRAHAM, J.
         --     -- -- -- -- -- -- -- -- -- -- -- --
                       W.P.(C) No.19399 of 2023
         --     -- -- -- -- -- -- -- -- -- -- -- --
                   Dated this the 3rd day of April, 2024

                              JUDGMENT

The petitioners have approached this Court aggrieved by the

direction issued by the respondent Sub-Registrar to remit stamp

duty applicable to 'conveyance' in a release deed among siblings,

where joint interest survives.

2. It is averred that the 1st petitioner along with other siblings

are legal heirs of one Thayyil Hamza, executed Ext.P1 partition

deed. In the schedule of the said property the nature of the right

was referred to as 'Kaivasha panayam' (leasehold right). In fact, the

predecessor of executants of Ext.P1 had obtained a Purchase

Certificate with respect to the property covered as per Ext.P1 as

per Purchase Certificate No.334 of 1973 of Land Tribunal,

Mankada. However, the same was left unnoticed by the executants

of Ext.P1 and only the leasehold right was partitioned among

executants. Upon noticing the Purchase Certificate, the 1 st

petitioner executed a release deed in favour of petitioners 2, 3 and

4 as per Ext.P2 and petitioners 2 to 4 executed Ext.P3 release deed

releasing undivided absolute title in favour of the 1 st petitioner.

Both these documents were presented for registration and the

registering authority has taken a stand that the nature of

transaction as per Exts.P2 and P3 attracts stamp duty as if it is a

conveyance under Article 22 of the Kerala Stamp Act. It is

contended that even though a partition was effected based on

leasehold right, a subsequent release of 'janmam' title will not

attract any stamp duty under the provisions of Article 48(a) of the

Kerala Stamp Act.

3. A counter affidavit has been filed by the 2 nd respondent in

support of the stand taken in not registering Exts.P2 and P3,

wherein paragraph10 reads as follows:

"10. Here in this document, a new right is created, ie, the right of Kaivasha panayam is changed as the right of Jenmam in this document. Therefore the ground cannot be considered merely as an excused ground for transfer release of nominal right. Since Kerala Stamp Act 1959 is a taxing statute, this document can only be considered as a partition deed for correcting the mistake of a materially altered past while determining the Stamp Duty."

5. I have considered the rival contentions of both the parties.

Essentially the mistake was crept in Ext.P1, which shows that what

is being partitioned is the leasehold rights of the predecessor of the

petitioners, where in fact the predecessor of the petitioners had

obtained the Purchase Certificate with respect to the property

covered by Ext.P1 as per Purchase Certificate No.334 of 1973 of

Land Tribunal, Mankada. In view of the above said circumstance, I

am of the view that it is for the petitioners to execute a rectification

deed taking note of the fact that it was not the leasehold right

which ought to have been partitioned, but the absolute title of

'janmam' rights obtained as per Purchase Certificate No.334 of

1973 of Land Tribunal, Mankada.

6. This Court in Jihas v. District Registrar [2012 (3) KLT

194] has held that even in case where a mistake in the flat number

in the sale deed and even if there is an extinguishment of right and

creation of right, that will not alter the nature of the rectification

deed for all purposes including stamp duty and the same could be

corrected in a rectification deed. This Court in Baburaj P. K. and

others v. State of Kerala and others [2019 (2) KHC 628] held

in paragraphs 8 and 9 as follows:

" 8. The Stamp Act or the Registration Act does not define a rectification deed by assigning an exclusive meaning to it. The Registration Act provides a Table of fees under Section 78 of the Act. Table 1(s) under Section 78 refers a deed which can be treated as rectification deed and it states that the maximum fee leviable on such a deed at Rs.500/-. It gives sufficient

indication as to, what is a rectification deed. It states that rectification deed does not create, transfer, limit, extend, extinguish or record any right. Therefore, wrong description which will not create, transfer or record any fresh right can be rectified through a rectification deed. It is made clear that such deed is possible only to correct an error or mistake. The facts clearly would show that a mistake was crept in regard to the description of the property in the Will. None has a case that there exist any such property as described in the Will to the testator. As already adverted, there is no exclusive definition being assigned under the Stamp Act or the Registration Act for a rectification deed, it has to be contextually understood by the nature of circumstances under which the deed has to be executed. Therefore, it is possible to execute a rectification deed by the legal heirs on unanimity to correct wrong description in a Will.

9. Upshot of the above discussion is that the petitioners cannot enter into a partition deed in respect of the property in respect of which bequest has been given effect. The Sub Registrar is justified in rejecting the petitioners' request. However, the petitioners are at liberty to execute a rectification deed correcting the wrong description in the registered Will on condition that all the legal heirs have joined together in such deed. The petitioners shall also make available a copy of the legal heir certificate before the Sub Registrar for compliance. If the petitioners make an application for refund of the spoiled stamp papers, that shall be considered in accordance with law.

This writ petition is disposed of as above."

In view of the declaration of law as stated above, I am of the

view that the petitioners ought to have sought for registration of a

rectification deed, rectifying the mistake that has crept in Ext.P1

and of such a deed is presented for registration the same shall be

registered on payment of fee applicable for registration of a

rectification deed. Granting such liberty to the petitioners, the writ

petition is disposed of. It is made clear that if the petitioners make

any application for refund of the stamp duty paid for executing

Exts.P2 and P3, the same shall be considered and disposed of in

accordance with law, without any delay treating the same as done

within time, if an application is made within a period of two weeks

from the date of receipt of a copy of this judgment.

Sd/-

VIJU ABRAHAM JUDGE sm/

PETITIONER EXHIBITS Exhibit1 P1 TRUE COPY OF THE PARTITION DEED NO. 2364 OF 2022 DATED 10.05.2022 OF SUB REGISTRAR OFFICE, PERINTHALMANNA Exhibit P2 TRUE COPY OF THE RELEASE DEED DATED 19.05.2023 EXECUTED BY FIRST PETITIONER Exhibit P3 TRUE COPY OF THE RELEASE DEED DATED

TO 4 Exhibit P4 TRUE COPY OF THE MEMO C.NO.003/2023(1) DATED 19.05.2023 (ERRONEOUSLY ENTERED AS 19.04.2023) ISSUED BY THE SUB REGISTRAR, PERINTHALMANNA Exhibit P5 TRUE COPY OF THE MEMO C.NO.003/2023(2) DATED 19.05.2023 (ERRONEOUSLY ENTERED AS 19.04.2023) ISSUED BY THE SUB REGISTRAR, PERINTHALMANNA Exhibit P6 TRUE COPY OF THE ONLINE TOKEN REGISTRATION DATED 19.05.2023 ISSUED IN THE NAME OF FIRST PETITIONER BY DEPARTMENT OF REGISTRATION Exhibit P7 TRUE COPY OF THE ONLINE TOKEN REGISTRATION DATED 19.05.2023 ISSUED IN THE NAME OF SECOND PETITIONER BY DEPARTMENT OF REGISTRATION