IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 WP(C).No. 6302 of 2004(A) ------------------------- PETITIONER(S): ---------------------- 1. C.V.ABDULKADER, S/O. C.H.UMMER, KUNHIPARAKKANDY HOUSE, KAVIYOOR, CHOKLI P.O., KANNUR DIST. 2. K.C.SUBAIDA, W/O. ABDUL KADER, KUNHIPARAKKANDY HOSUE, KAVIYOOR, CHOKLI P.O., KANNUR DISTRICT. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA SRI.JIMMY.N.JOSEPH RESPONDENT(S): ---------------------- 1. SUB REGISTRAR, CHOKLI, KANNUR DISTRICT. 2. DISTRICT REGISTRAR (GENERAL), THALASSERY, KANNUR. 3. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, MESEUM JUNCTION, THIRUVANANTHAPURAM-33. GOVT.PLEADER SRI.DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.6302/04 APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF THE ASSIGNMENT DEED NO.26 OF 2002 OF S.R.O.CHOKLI DT 4.1.2002. EXT.P2: TRUE COPY OF THE PARTITION DEED DT 26.4.2002 EXECUTED BY THE PETITIONERS. EXT.P3: TRUE COPY OF THE STATEMENT DT 17.07.2002 SUBMITTED BEFORE THE 22ND RESPONDENT BY THE PETITIONERS. EXT.P4: TRUE COPY OF THE ORDER NO.G1.4991/2002 DT 18.10.2002 PASSED BY THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE APPEAL FILED BY THE PETITIONERS BEFORE THE 3RD RESPODNENT DATED 23.11.2002. EXT.P6: TRUE COPY of THE ORDER NO.D.DIS.37142/02/LR(A3) DT 9.12.2003 PASSED BY THE IIIRD RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 6302 OF 2004 (a) ===================== Dated this the 13th day of October, 2010 J U D G M E N T Petitioners are husband and wife. 2. First petitioner owned a property having an extent of 20.25 cents in RS No.13/348 A1B of Chokli Amsom, Kaviyoor Desom. Out of the said property, by Ext.P1 assignment deed No.26/02 of SRO Chokli dated 4/1/2002, he assigned 1/20th undivided share in favour of the second petitioner, his wife. Accordingly, second petitioner was conferred the status of co- owner of the property. 3. Subsequently, on 26/4/2002, Ext.P2 partition deed was executed among the petitioners whereby 19th/20 share of the entire property was set apart in the share of the second petitioner and 1/20th share was set apart in the share of the first petitioner. This document, styled as a partition deed, was presented for registration and the 1st respondent raised objections regarding the nature of the document and impounded the same under Section 37(2) under the Kerala Stamp Act and sent it to the 2nd respondent. WPC No. 6302/04 :2 : 4. Petitioners appeared before the 2nd respondent and submitted Ext.P3 statement. 2nd respondent passed Ext.P4 order taking the view that since the second petitioner got property in excess of the share which she originally held in the common property, the document will have to be treated as a gift deed. Against this order, petitioners filed Ext.P5 appeal before the 3rd respondent. The 3rd respondent heard the parties and issued Ext.P6 proceedings upholding Ext.P4. It is in these circumstances, writ petition is filed challenging Exts.P4 and P6. 5. The main contention raised by the counsel for the petitioners is that Ext.P2 document executed between themselves is only a partition deed and therefore should be registered applying Article 42 of the Schedule to the Kerala Stamp Act. 6. In my view, the view taken in Exts.P4 and P6 is unassailable. First of all, from the facts, it is obvious that this is a clear case where the whole transaction was conceived and implemented only for the purpose of avoiding stamp duty. It was the first petitioner who held title over the entire property having an extent of 20.25 cents. The first petitioner executed Ext.P1 assignment deed on 4/1/2002 assigning 1/20th share to his wife, WPC No. 6302/04 :3 : the second petitioner. Thus, the first petitioner conferred the status of a co owner on his wife. Soon thereafter, on 26/4/2002, Ext.P2 was executed, by which, as against the original 1/20th share held by the second petitioner, she acquired 19/20 shares in the property and a negligible share of 1/20th was retained by the first petitioner husband. Thus, there is in fact an effective transfer of title in so far as 18/20th shares in the property is concerned in favour of the second petitioner. Such a document cannot be treated as a mere document of partition, but is one which clearly is a gift as appreciated by the respondents 2 and 3. In that view of the matter, the claim of the petitioners that Ext.P2 should have been registered applying Item No.42 of the Schedule to the Kerala Stamp Act is absolutely unsustainable and the respondents are perfectly justified in holding that the document has to be treated as a gift deed and stamp duty is payable on that basis. 7. Counsel for the petitioners relied on the judgment in Dhirajlal Hemchand v. State of Kerala (2004(3) KLT 829) and contended that in respect of a property held in co-ownership, when partition is effected, it is open to the parties to take a lesser share than what is legitimately due and that even in such a case, WPC No. 6302/04 :4 : the nature of the document does not cease to be anything other than partition. However, facts of the case shows that the co- ownership property was partitioned among the co-owners and one of the co-owner got his share separately. It was dealing with such a factual issue that this court made an observation that the deed can be treated as one of partition. The facts of the case dealt with by this Court in the aforesaid case was totally different from the case herein, and therefore, that judgment will not improve the case of the petitioners. Therefore, I am not persuaded to interfere. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp