The property which is subject matter of a partition deed originally belonged to one Kunjipathumma. She was married to one Kunjalikutty Haji, and in the wedlock a son namely by Naha was born. Naha is no more. His children are signatories 5 to 8 in the partition karar. After the death of Kunjalikutty Haji, Kunjipathumma had another marriage with Hassankutty. The signatories to the partition karar 1 to 4 are the children born to Kunjipathumma in the marriage with Hassankutty. Thus it can be seen that signatories 1 to 4 are the children of Kunjipathumma and signatories 5 to 8 are the grand children of Kunjipathumma. They have presented a document for partition deed on executing a stamp paper of worth Rs.1000/- in terms of Entry 42 in Schedule of Stamp Act wherein it is stated that where a partition among the family members, the value is
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2 subject to maximum of Rs.1000/-. The Registrar registered the document on obtaining registration fee. However, for want of proper stamp duty the document was impounded. Explanation to Entry 42 in the Schedule for partition among family is as follows:
“Family means father, mother, grandfather, grandmother, husband, wife, son, daughter, grandchildren, brother, sister and legal heirs of the deceased children, if any, as the case may be.”
It seems the Registrar has entertained a doubt that great grandchildren and children cannot termed within the meaning of 'family' as contemplated under the Explanation. The persons referred in the Explanation has to be understood with reference to the persons referred therein and also with the permutation of such persons either in combination or individually. The right traced out by the persons for executing a partition deed is based on the right devolved from Kunjipathumma. Their right is referable for executing a partition deed is based on the nature of
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3 relationship derived from Kunjipathumma. Therefore, they are all form within the meaning of family as contemplated under the Explanation. The petitioner submits that by proceedings of Ext.P2, the document was impounded and the petitioner is compelled to pay excess registration fee. Since the amount was forced to pay by the petitioner under an illegal order consequent upon setting aside an illegal order, the petitioner is entitled to refund the amount paid towards registration fee. In view of the above, Ext.P2 is set aside. There shall be a direction to respondents 2 and 3 to refund the excess amount paid by the petitioner within two months and also to release the partition deed forthwith.
Writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, (JUDGE)
Kvs/-
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