IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 WP(C).No. 36548 of 2010(P) -------------------------------------- PETITIONER(S): ----------------------- 1. M/S.TOC-H ROYAL BUILDERS, KV-14, 7TH CROSS ROAD, PANAMPILLY NAGAR PO, ERNAKULAM DISTRICT,REP.BY ITS MANAGING PARTNER P.O.SAMSON. 2. P.O.SAMSON,AGED 60 YEARS, S/O.P.M.OOMMEN, DHANYAYIL HOUSE, PALARIVATTOM, KOCHI-682 025. 3. SUSAN SAM,AGED 59 YEARS, W/O.SAMSON,DHANYAYIL HOUSE, PALARIVATTOM, KOCHI-682 025,REP.BY HER POWER OF ATTORNEY HOLDER P.O.SAMSON. 4. DR.BOBBY PAUL,AGED 39 YEARS, S/O.DR.K.C.PAULOSE,CHELAPARAMBATH HOUSE, CHALAKUDY,PIN 680 307,REP.BY HER POWER OF ATTORNEY HOLDER P.O.SAMSON. 5. ANNIE JAYAN VARGHESE, AGED 39 YEARS, W/O. JAYAN VARGHESE, KUTTIVILAYIL, SASTHAMANGALAM,TRIVANDRUM. BY SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE ADV.SRI.K.S.DILIP SRI.SAJU N.A. SMT.G.LEKHA SRI.A.S.SAJUSH PAUL SMT.P.J.FLONY SMT.UMA.G.KRISHNAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP.BY THE DISTRICT REGISTRAR(GENERAL), ERNAKULAM.682 016 2. THE SUB REGISTRAR, SUB REGISTRAR OFFICE, THRIKKAKARA, ERNAKULAM.PIN- 682 026 R1 & R2 BY GOVERNMENT PLEADER SRI.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2010, ALONG WITH WPC NO. 36587 OF 2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts ANTONY DOMINIC, J. ---------------------------------- WP(C) Nos. 36548 & 36587 of 2010 ----------------------------------- Dated this the 9th day of December, 2010 J U D G M E N T Issues raised in these two writ petitions are similar and therefore these cases are disposed of by this common judgment. Facts referred to are as pleaded in WP(C) No. 36548/10 2. The first petitioner is a builder and the petitioners 2, 3 and 4 are owners of plots of land. It is stated that they have entered into a joint venture agreement and that petitioners 2,3 and 4 gave power of attorney to the first petitioner, based on which, the first petitioner has constructed a multistoried apartment in the land belonging to the petitioners 2,3 and 4. According to the petitioners, once construction is completed, the parties will share the total built up area and undivided share in the land, in the ratio mutually agreed to among them. WP(C) Nos. 36548 & 36587 of 2010 2 3. It is stated that the 5th petitioner is the owner of a neighboring property. The 5th petitioner agreed to purchase an apartment together with the undivided share in the land where the apartment complex is situated, in exchange of her land. 4. Accordingly, Ext.P5 deed of exchange was drawn up and was presented before the 2nd respondent. It is stated that a dispute regarding the rate of stamp duty payable arose and thereupon a reference was made to the first respondent under Section 37 of the Stamp Act. The issue was considered by the first respondent exercising powers under Section 39(1)(b) of the Act. Accordingly, Ext.P6 order has been issued where it was held that the document cannot be considered as a deed of exchange and that the document can be considered only as a conveyance and will have to be drawn up in two sale deeds, paying the appropriate stamp duty. It is challenging Ext.P6 order the writ petition has been WP(C) Nos. 36548 & 36587 of 2010 3 filed. 5. Contentions raised by the senior counsel for the petitioners is that petitioners 2,3 and 4 have surrendered their properties for construction of the apartment and have executed power of attorney in favour of the first petitioner, the builder, and in return petitioners 2,3 and 4 will get the agreed extent of built up area with undivided share in the land and that the balance built up area with undivided share in the land will be appropriated by the first petitioner as mutually agreed by the parties. It is stated that in return for the flat the 5th petitioner is exchanging her land and therefore Ext.P5 deed of exchange, has been drawn up by the first petitioner in his capacity as power of attorney holder of the petitioners 2, 3 and 4 as well. Therefore, the property of the 5th petitioner, which has been given in exchange for the apartment complex and the undivided share in the land has to be treated as a WP(C) Nos. 36548 & 36587 of 2010 4 property reverting to all the petitioners together. On this basis, it is contended that Ext.P5 deed is a deed of exchange and the view taken in Ext.P6 is illegal. 7. “Exchange” has been defined under Section 118 of the Transfer of Property Act, 1882 reads as under: “Exchange” defined.- When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”. A reading of this provision shows that there can be an exchange only when two persons mutually transfer ownership among themselves. The nature of Ext.P5 document will have to be decided going by the recitals in the document itself. The relevant recital in Ext.P5 demand reads as under: “NOW THIS DEED WITNESSETH that in pursuance of the aforesaid agreement and in consideration of the parties of the first Part exchanging to the party of the second Part the Schedule A property hereunder written, party of the second part hereby grant and convey by way of exchange unto the party no.1 of the first Part absolutely WP(C) Nos. 36548 & 36587 of 2010 5 and for ever all that piece and parcels of the property described in the Schedule B hereunder (having equal value to that of the A schedule property hereunder) together with all the liabilities, easements, profits, privileges, advantages, rights, members and appurtenances whatsoever of the said Schedule B property and also together with all the deeds, documents, writings and other evidences of title relating to the said B Schedule property and all the estate, right, title, interest, use, possession, benefit, claim and demand whatsoever, both at law and in equity of the party of the second part and TO HAVE AND TO HOLD the said Schedule B property hereby granted and conveyed by way of exchange unto and to the use and benefit of the party no.1 of the first Part absolutely and forever with exclusive title, possession and enjoyment of the schedule B property and the party no.1 of the first part shall enter into and upon the schedule B property without any let, hindrance or interruption from the party of the second part or any person claiming under him.” (emphasis supplied) A close reading of the recitals shows that, the property that is given in exchange by the 5th petitioner is conveyed unto party No. 1 of the first part absolutely and to the exchange of others. This means that, the property of the 5th petitioner gets conveyed to the first WP(C) Nos. 36548 & 36587 of 2010 6 petitioner, the builder absolutely and, petitioners 2, 3 and 4 are not having any claim over the said property although the property that the 5th petitioner gets is one over which, all of them are having title. This means that, there is no exchange, involving petitioners 2, 3 and 4 inspite of the fact that the land where the apartment is constructed is that of theirs. Therefore, the documents do not satisfy the requirement of mutuality of exchange as contemplated under Section 118 of the Transfer of Property Act, 1882. In that view of the matter, the reasoning contained in Ext.P6 order of the first respondent is unassailable and has to be upheld. Therefore the writ petitions are absolutely without any merit and are dismissed. ANTONY DOMINIC, JUDGE. rkc