IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 WP(C).NO. 22055 OF 2010(O) ---------------------------------------- OS.112/2004 OF MUSNIFF COURT,ADOOR .................... PETITIONER(S): ---------------------- MOLLY BABU, AGED 41 YEARS, W/O.LATE BABU MATHEW, PUTHENVILA THEKKETHIL, KURUMPALA MURI,KURUMPALA VILLAGE, PANDALAM. BY ADV. SRI.ROSHEN.D.ALEXANDER RESPONDENT(S): ------------------------ MATHEW, S/O.DANIEL,PUTHENVILA THEKKETHIL KURUMPALA MURI, KURUMPALA VILLAGE, PANDALAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 5.1.2007 IN O.S. NO.112 OF 2004. EXHIBIT P2 TRUE COPY OF REPORT DATED 19.12.2008 FILED BY ADVOCATE COMMISSIONER. EXHIBIT P2(A) TRUE COPY OF THE PLAN SUBMITTED ALONG WITH THE REPORT. EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE COMMISSION REPORT AND PLAN. EXHIBIT P4 TRUE COPY OF THE REPORT DATED 28.120.2009. EXHIBIT P5 TRUE COPY OF THE I.A. NO.2190 OF 2009 DATED 14.12.2009. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 18.12.2009 IN I.A. NO.2190 OF 2009 IN I.A. NO.522 OF 2007 (FD) IN O.S. NO.112 OF 2004 ON THE FILES OF THE MUNSIFF'S COURT, ADOOR. EXHIBIT P7 TRUE COPY OF THE I.A. NO.77 OF 2010. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 30.3.2010 IN I.A. NO.77 OF 2010 ON THE FILES OF MUNSIFF'S COURT, ADOOR. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.22055 of 2010 ==================================== Dated this the 16th day of August, 2010 J U D G M E N T This Writ Petition is at the instance of petitioner-plaintiff challenging Exts.P6 and P8 orders in O.S. No.144 of 2004 of the court of learned Munsiff, Adoor. That is a suit for partition in which a final decree has been passed on 09.11.2009. As per the preliminary and final decrees property is to be divided among petitioner and respondent equally. Petitioner filed I.A. No.2190 of 2009 (Ext.P5) for permission to deposit value of her share separated from the rest of property for engrossing final decree in the stamp paper, claiming benefit under Section 42 of the Kerala Stamp Act (for short, “the Act”). That application was dismissed vide Ext.P6, order. Petitioner filed Ext.P7, application for review which stands dismissed by Ext.P8, order. Hence the challenge to Exts.P6 and P8, orders. Though respondent was served on this Writ Petition he remains absent. I heard learned counsel for petitioner. 2. It is not disputed that the property is divided among W.P(C) No.22055 of 2010 -: 2 :- petitioner and respondent. Now the question is whether petitioner is liable to pay stamp duty for the entire property or she need pay stamp duty only for her separated share. Article 42 of the Act states that where the partition is among all or some of the family members, the stamp duty payable is the same as for a Bottomry Bond (No.14) for the amount of the value of separated share or the shares of the property. The note attached to the said Article states that largest share remaining after the property partitioned (or if there are two or more shares of equal value and not smaller than any of the other shares, then one of such each shares) shall be deemed to be that from which the other shares are separated. In other words the “separate share referred to in Article 42 must be the share from which the rest of the property partitioned is separated. This court has taken that view in Mary Simon v. Tressa Xavier (1998 [1] KLT 245). Here property is divided among petitioner and respondent and hence going by the note attached to Article 42 of the Act liability of petitioner is to pay stamp duty only for one of the equal shares. But as per Ext.P2(a), plan share allotted to petitioner is eight cents with a building while to respondent, it is 10.75 cents. It follows that in the light of Article 42 of the Act and the W.P(C) No.22055 of 2010 -: 3 :- decision stated above, petitioner need only pay stamp duty for her share. This aspect of the matter was not taken note of by the learned Munsiff while considering Ext.P5, application. Exhibit P6, order therefore cannot stand. Exhibit P7 application for review was dismissed for the reason that there is no error apparent on the face of record. In the light of what I have stated above I am unable to accept that view. Exhibits P6 and P8, orders are therefore liable to be set aside. Resultantly, this Writ Petition is allowed. Exhibits P6 and P8, orders are set aside. Exhibits P5 and P7, applications will stand allowed. It is made clear that liability of petitioner is only to pay stamp duty for her share of the property as per Ext.P2(a), plan. THOMAS P. JOSEPH, JUDGE. vsv