IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 OP(C).NO. 2884 OF 2011(O) --------------------------------------- AGAINST THE ORDER DATED 10/06/2011 IN IA.7662/2007 IN OS.344/1994 OF I ADDL.SUB COURT,ERNAKULAM .................... PETITIONERS: ---------------------- 1. GEORGE V.A., AGED 52 YEARS, S/O.LATE ABRAHAM, VILLANASSERIL HOUSE, PERUMANOOR P.O., KOCHI. 2. ANTONY, AGED 56 YEARS, S/O.LATE ABRAHAM, VILLANASSERIL HOUSE, PERUMANOOR P.O., KOCHI. BY ADV. SRI.ALEXANDER PETER SMTSHALINI M ALEXANDER RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY REGISTRATION INSPECTOR GENERAL, REGISTRATION INSPECTOR GENERAL OFFICE, THIRUVANANTHAPURAM THIRUVANANTHAPURAM - 695 001. 2. DEPUTY INSPECTOR GENERAL REGISTRATION, DISTRICT REGISTRAR OFFICE, ERNAKULAM SOUTH, ERNAKULAM - 682 011. BY GOVERNMENT PLEADER SHRI T.K.SAJEEV THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2884 OF 2011 APPENDIX PETITIONER'S EXHIBITS EXT.P1 THE PHOTOCOPY OF THE ORDER IN IA 7662/07 IN O.S.344/94 OF THE IST ADDL.SUB JUDGE, ERNAKULAM. EXT.P2 PHOTOCOPY OF THE LETTER ISSUED BY THE IST RESPONDENT TO THE DEPUTY INSPECTOR GENERAL AND DISTRICT REGISTRARS (GENERAL & AUDIT). EXT.P3 THE PHOTOCOPY OF THE EXTRACT OF KERALA FINANCE BILL 2011 PAGE 1 & 2 EXT.P4 PHOTOCOPY OF THE ORDER IN IA 4764/11 IN IA 7662/07 IN OS 344/07 RESPONDANTS'S EXHIBITS: NIL TRUE COPY P.S. TO JUDGE. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2884 of 2011 ==================================== Dated this the 01st day of September, 2011 J U D G M E N T Petitioners, as per Ext.P1, order dated June 10, 2011 on I.A. No.7662 of 2007 in O.S. No.344 of 1994 of the court of learned Additional Sub Judge-I, Ernakulam obtained a final decree for partition. Following that, petitioners were called upon to remit Rs.13,809.36/- being the value for non-judicial stamp paper to engross the final decree taking the valuation of property as Rs.13,80,936/-. After the final decree was passed as per order on I.A. No.7662 of 2007, amendment was made to Sections 42, 48, etc. of the Kerala Stamp Act by the Kerala Finance Bill, 2011 with effect from 19.07.2011. As per that amendment the stamp duty payable on partition deed and final decree is less than what petitioners are called upon to pay based on Ext.P1, order. Hence petitioners filed I.A. No.4764 of 2011 to cancel/annul the order passed on I.A. No.3857 of 2011 (directing petitioners to deposit Rs.13809.36). That application was dismissed which is under challenge. Learned counsel referred to me various provisions of the Stamp Act to contend that what is meant by “execution” of O.P(C) No.2884 of 2011 -: 2 :- the document and as to when a final decree in a partition suit would take effect. Reliance is placed on the decision in Madhavi Amma v. State of Kerala (1986 KLT 591) where question concerned was the effect of a final decree in a partition suit vis-a-vis provisions of Private Forest (Vesting and Assignment) Act, 1970. I have heard learned Government Pleader also. 2. The decision relied on by learned counsel for petitioner concerned the distinction between “registered” and “executed” and the meaning of the said expressions. There, reference was made to Rule 237(2) of Kerala Civil Rules of Practice (for short, “the Rules”) and Sec.16(c) of the Registration Rules to say that a copy of final decree in a partition suit is to be forwarded to the appropriate registering authority and the registering authority is to file the copy in the file book corresponding to Book No.1. It was held that the word “registered” means “recorded, entered or enrolled” and hence it followed that the procedure by which a copy of the final decree is forwarded to the registering authority amounts to registration in the eye of law. 3. Now the question is whether petitioners are liable to pay stamp duty as on the date of final decree or as on the date of O.P(C) No.2884 of 2011 -: 3 :- its registration. Rule 187 of the Rules deals with final decree in partition suits and reads as under: “187. Final decree in partition suits.- Final decrees in partition suits shall be prepared and stamp duty levied in accordance with the following directions: (1) The value of the shares shall be the value as assessed by the Commissioner and accepted by the Court. (2) The stamp duty leviable shall be according to the Stamp Act in force at the time of the passing of the final decree. (3) The Court shall insist on the Commissioner filing a schedule showing the valuation of the shares for the purpose of stamp duty”. 4. Thus, on a final decree in a civil suit for partition, stamp duty is leviable as per the Stamp Act in force “at the time of passing the final decree”. In this case the final decree was passed on June 10, 2011 as per Ext.P1, order on I.A. No.7662 of O.P(C) No.2884 of 2011 -: 4 :- 2007. May be, for preparation of the final decree which is a ministerial act it takes some time. But passing of the final decree was on June 10, 2011 when I.A. No.7662 of 2007 (for passing the final decree) was allowed, drawing up of the final decree being only a ministerial act to follow. There is no case that the Kerala Finance Bill, 2011 has made any amendment to the provisions of the Rules. Therefore liability to pay stamp duty on the final decree is as on the date on which the final decree is passed, in this case on June 10, 2011 and the amendment as per the Kerala Finance Bill, 2011 came into effect only on July 19, 2011. In that view of the matter I do not find reason to interfere with the impugned order. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv