Dream Flower Housing Projects Pvt. Ltd vs State Of Kerala

T.R. Ravi, J

The 2nd petitioner had purchased immovable properties measuring 12.54 Ares comprised in Old Sy.No.1109/12-2 situated in Thrikkakara North Village as per Sale Deed No.1761/1980 registered at the Sub Registrar's Office, Edappally and out of the total extent, 10.44 Ares were earmarked for the purpose of construction of a multi-storeyed residential building. As per Ext.P1 Sale Deed No.4348/2015 of SRO, Edappally, the 2nd petitioner sold 10% of the undivided fractional share in the property to the 1st petitioner for a total consideration of Rs.25,00,000/-. The petitioners thereafter decided to develop the entire land by constructing a multi-storeyed residential apartment complex with 24 units. The complex was named 'Dream Flower Estella-2'. The construction of the building was completed. The petitioners sold 18 apartments out of the 24 units, along with the undivided fractional share in the property and undivided interest in the common areas and facilities. After effecting the sale, 6 units bearing Nos.D104, F106, A201, D304, B402, E405 and a room remained, along with 7/15 fractional undivided share in the property and proportionate undivided share in the common areas and the facilities. The petitioners decided to divide the balance units and undivided share in the land and common areas by executing a partition deed. Ext.P2 partition deed dated 24.2.2021 was drawn up whereby the petitioners agreed to set apart the room along with 1/25 undivided proportionate share in the property, shown as Schedule A in the document, to the share of the 1st petitioner and the 6 apartments along with 6/25 undivided proportionate share in the property shown as Schedule B to the document, to the share of the 2nd petitioner. When the petitioners submitted the document for registration after remitting the necessary registration fee online and obtaining the token for registration along with acknowledgment, the 3rd respondent was reluctant to register the document and returned the same along with Ext.P3 letter directing the petitioners to re-submit the same after curing the defects sought. The reason stated is that petitioners 1 and 2 have mutually relinquished their respective rights over the property, and hence, stamp duty would be payable under Article 48(b) of the Schedule appended to the Kerala Stamp Act, treating the document as a release deed. Another reason stated is that the Land Revenue Commissioner, in his order dated 12.06.2021 has ordered that when a small share is purchased as an undivided share and thereafter a partition is effected by way of partition deed, the document cannot be treated as an instrument of partition as defined in Section 2(k) of the Kerala Stamp Act, 1959 and the same is liable for stamp duty of 8% under Sl.No.22 of the Schedule appended. According to the petitioners, since A Schedule alone is sought to be separated from the entire property remaining unsold, stamp duty needs to be paid only on the separated share alone, and hence, a valuation certificate with respect to A Schedule alone is required. It is also submitted that since petitioners 1 and 2 had joint ownership, there can be no objection to the partition of the properties between petitioners 1 and 2.

The 3rd respondent has filed a statement justifying the action.

Heard the counsel on either side.

The property over which the multi-storeyed building is constructed was originally purchased by the 2nd petitioner. The 1st petitioner has purchased 1/10th undivided share in the property. Thus the petitioners became joint owners of the property. The petitioners jointly sold 18 of the apartments that were constructed along with the undivided share in the property and the common area. Both the petitioners have rights over what is remaining after the sale of the 18 units. The co-owners are free to accept any share, and there is no law that says that a particular co-owner should not be allotted something more than the share while effecting a partition. A reading of the document of partition would show that it is the 1st petitioner's share that is being separated from that of the 2nd petitioner. Section 2(k) defines an “Instrument of Partition” to mean any instrument whereby co-owners of any property divide or agree to divide such property in severalty. In such circumstances, the objection raised by the respondents that the document would amount to a release deed of mutual interests of the parties cannot be legally justified. Every partition would involve, in a sense, the release of some interest of a co-owner in favour of the other co-owner. That would not in any manner change the nature of the partition. [see The Chief Controlling Revenue Authority, Board of Revenue, Madras v. B.A.Mallayya 1971(1) MLJ 177(FB) and Dhirajlal Hemchand v. State of Kerala 2004(3) KLT 829]. The reasoning in Ext.P3 cannot be legally justified so long as there is a pre-existing right between petitioners. The respondents are not entitled to reject registration of Ext.P2. The objection based on the order of the Land Revenue Commissioner also does not apply since it is not a case where a small undivided share in the land is purchased, and partition of the land is sought to be effected. In the case on hand, after purchasing the undivided share in the land, construction was carried out by the petitioners jointly, and the constructed apartments were sold by them jointly before they decided to partition whatever is not sold.

The writ petition is hence allowed. Ext.P3 is quashed. The 3rd respondent is directed to register Ext.P2 partition deed, if the same is submitted within three weeks from the date of receipt of a certified copy of this judgment, treating the same to have been submitted within the time limit prescribed by the Statute.