Ext.P4 notice, by which the petitioner has been directed to pay stamp duty for rectification deed produced by her before the 2nd respondent is under challenge in this writ petition.
2. The petitioner purchased a land having an extent of 14 cents in Re-Survey No.112, 111/11 of Nellicode Village of Kozhikode Taluk from one Govindankutty by assignment deed no.3500/2007. The petitioner alleges that the said document was registered after paying required stamp duty. However, at the time of execution of Ext.P1 assignment deed, proceedings for assignment of 'jenm' right in respect of the same property was pending before the Land Tribunal, Kozhikode as SMC No.835/2007. The petitioner sought for impleading herself in the proceedings on the basis of Ext.P1 assignment deed. Though the impleading petition was allowed, the Tribunal found that Ext.P1 assignment deed stated what has been assigned on the strength of Ext.P1 was the 'jenm' right. The petitioner alleges that it was then only she noted the mistake in the document. In fact, the petitioner's assignor, Sri.Govindankutty, had only a 'kanam' right over the property. According to the petitioner, it was an inadvertent mistake committed by the document writer, which could not be noticed by the petitioner or by her assignor until this was pointed out by the Land Tribunal. Coming to know about the mistake, the petitioner's assignor executed a rectification deed. When this rectification deed was placed before the 2nd respondent, the 2nd respondent insisted that stamp duty has to be remitted as that of a new assignment deed; and the matter was referred to the 1st respondent. The 1st respondent issued a show cause notice stating that the rectification deed has to be treated as a new document; and therefore, stamp duty has to be remitted accordingly.
By Ext.P4, the petitioner has been directed to pay ₹54,918/- as stamp duty and to pay a penalty at 10 times.
The petitioner submitted a reply to Ext.P4 notice stating that Ext.P2 document is only a rectification deed and the same does not create any new right in the property. It is with this background, the petitioner has come up before this Court.
3. In the statement filed by the respondent State, it is contended that as per the present document sought to be registered, what was transferred is 'kanam' right; and therefore, it is not a rectification deed. According to them, as a new right is transferred in the new instrument, stamp duty @ 9% on the fair value of the property has to be remitted.
4. I have heard the learned counsel for the petitioner and the learned Government Pleader in the matter.
5. The assignor of the petitioner, who was having only a 'kanam' right over the property, has executed Ext.P1, wherein it was described that what was transferred was 'jenm' right instead of 'kanam' right. The petitioner's case is that there is no difference in the extent or identity of property. The parties to the documents are also same. By Ext.P2, the parties are seeking a rectification of the mistake in Ext.P1 regarding the nature of the right in the property while preparing the same. Therefore, according to the petitioner, there is no difference in the stamp duty for assignment of 'jenm' right and 'kanam' right over a property. Hence, payment of separate stamp duty or excess stamp duty is not necessary; so submitted, the learned counsel for the petitioner.
6. The learned Government Pleader, per contra, would submit that as an entirely different right is transferred, the Government is bound to realize stamp duty for the same.
7. The clear case of the petitioner is that the mistake crept in Ext.P1 assignment deed was unintentional; and the petitioner has neither created any encumbrance over the property nor any third party interest in the property. Ext.P2 rectification deed is intended to make it in tune with the prior documents, Exts.P6 and P7, which would go to show that the assignors were having only a 'kanam' right over the property. As Ext.P2 document only intends to correct the mistake crept in Ext.P1 assignment deed without any change in the extent or identity of the property or of the parties, the demand for stamp duty as if Ext.P2 rectification deed is a new deed of conveyance is illegal and improper. Therefore, Ext.P4 notice shall not be allowed to stand.
In the result, the writ petition is allowed. Ext.P4 is quashed.
The 2nd respondent is directed to register Ext.P2 rectification deed without insisting for the full stamp duty as if Ext.P2 is a new deed of conveyance. As the effect of the transaction is only the transfer of 'kanam' right, it shall be open to the petitioner to approach the 'Kanam Tahsildar' concerned with a proper application for obtaining 'patta' in his name de hors the closure of the previous deed.
Needless to say that the registering fee collected from the petitioner at the time of presentation of Ext.P2 shall be refunded to the petitioner as no registration fee is required for registering the rectification deed.
Sd/-
A.V. RAMAKRISHNA PILLAI, JUDGE bka/-