IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 WP(C).No. 18572 of 2011(V) -------------------------- PETITIONER(S): ---------------------- BABURAJ, S/O.PATTIVELAN, AGED 54 YEARS, RESIDING AT KONNAYATH, VELLA ROAD, MANKARA-678613, DISTRICT PALAKKAD. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): ------------------------- 1. DISTRICT REGISTRAR, PALAKKAD-678681. 2. THE SUB REGISTRAR, PARALI, PALAKKAD DISTRICT-678613. GOVT.PLEADER SMT.RAJASREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.18572/11 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER BEARING NO.G1-851/11 DT 25.5.2011 OF THE DISTRICT REGISTRAR. EXT.P2: TRUE COPY OF THE PARTITION DEED REGISTERED AS NO.P5/11 DATED 17.2.11. EXT.P3: GENEALOGY OF THEFAMILY OF PONNAN WHO HAD EXECUTED THE PARTITION DEED EXT.P2. EXT.P4: TRUE COPY OF THE NOTICE DATED 16.6.11 ISSUED TO THE PETITIONER BY THE SUB REGISTRAR. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 18572 OF 2011 (V) ===================== Dated this the 13th day of July, 2011 J U D G M E N T Petitioner herein and 7 others executed a deed of partition of an immovable property, which originally belonged to late Sri.Ponnan. The document was registered as partition deed NO.5/11 of Parali Sub Registry. The Sub Registrar entertained a doubt about the actual rate of duty payable on the instrument, viz, as to whether it would come under Sl.No.42(i) or 42(ii) of the Schedule to the Kerala Stamp Act. 2. He thereupon impounded the document under Section 33(1) of the Kerala Stamp Act and sent the document to District Registrar. The District Registrar considered the matter in exercise of his powers under Section 39 and issued Ext.P1 order dated 25/5/11. In that order, District Registrar found that the instrument in question comes under Sl.No.42(ii) and not 42(i). As a result of the determination, petitioner and others are now saddled with the liability to pay 6% stamp duty as against 1% payable, had the document been classified under Sl.No.42(i). 3. Based on Ext.P1 order, Sub Registrar has issued Ext.P4 WPC No. 18572/11 :2 : notice requiring the petitioner to remit a sum of `59,200/- as additional stamp duty. It is in these circumstances the writ petition is filed. 4. The contention raised by the learned counsel for the petitioner is that the eight executants to Ext.P2 partition deed are the grand children and great grand children of Late Sri.Ponnan. Therefore, according to him, they come within the expression “family” as provided in the explanation to Sl.No.42 to the Schedule to the Kerala Stamp Act, 1959. Therefore, the learned counsel contended that the document is liable to be classified under Sl.No.42(i) and not 42(ii). 5. Learned Government Pleader has obtained instructions in the matter. According to the learned Government Pleader, for the purpose of determining the stamp duty payable, District Registrar took late Pattivelan, one of the deceased son of late Ponnan, as the head of the family. On that basis, he held that executant Nos.7 and 8, who are the grand children of Ponnan, are not members of the family. It is stated that it was on that basis, he concluded that the document comes under Sl.No.42(ii) and not 42(i). WPC No. 18572/11 :3 : 6. Petitioner has produced the genealogy of the family as per Ext.P3. This document shows that Ponnan had three children, two daughters and one son. All of them are no more. Executants 1, 2 and 3 of Ext.P2 are the children of Pattivelan, the only son of Ponnan, who is also no more. Executant No.6 is the wife of late Pattivelan. Executant Nos. 4 and 5 are two children of one Haridas, a deceased son of Pattivelan. Executant Nos.7 and 8 are the sons of Yasoda and Devaki, the deceased daughters of Ponnan. 7. With the above factual details, it has to be seen whether the aforesaid persons come within the expression “family” as provided in the explanation to Sl.No.42 to the Schedule to the Kerala Stamp Act. This provision reads as under:- Family means husband, wife, children and the legal heirs of the deceased children if any, as the case may be. 8. A perusal of the above details itself show that the executants were the wife, grand children and great grand children of Ponnan, who are legal heirs of the children of Ponnan, whose property is partitioned. If that be so, they fall within the class “wife and legal heirs of the deceased children” as provided in the WPC No. 18572/11 :4 : explanation. Necessarily, the document should have been classified under 42(i) as against 42(ii) as ordered in Ext.P1. 9. Therefore, Ext.P1 order passed by the District Registrar and Ext.P4 notice issued by the Sub Registrar are liable to be quashed and I do so. Respondents are directed to release the partition deed to the petitioner and others on production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp