(2010) 182 KLR 113 IN THE HIGH COURT OF KERALA AT ERNAKULAM
The Hon'ble MR. Justice ANTONY DOMINIC WP(C).No. 31431 of 2010(D) Dated this the 15th day of December, 2010 Head Note:- Kerala Stamp Act, 1959 - Section 31 - Schedule SI. No. 22 - Rectification of Deed - Mistake in mentioning flat number and pan number of vendor in sale deed - Whether for all purposes including stamp duty should be treated as a sale deed or execute a fresh sale deed? Held:- There is an extinguishment of right in respect of one apartment and creation of right in respect of another. But, such extinguishment of right and creation of right has occurred due to a mistake that had crept into sale deed. It is that mistake, which is sought to be corrected by rectification deed. In that process, even if there is an extinguishment of right and creation of right, that will not alter the nature of the rectification deed and for all purposes including stamp duty, the document has to be treated as a rectification deed. Therefore, the petitioner cannot be saddled with the liability to execute a fresh sale deed. For Petitioner :
For Respondent :
J U D G M E N T Ext.P1 is a sale deed in which the petitioner is the Vendor. By this document, what was conveyed is Flat No.I-11 of the apartment complex by name "Jewel Lexington". The flat number indicated in the document is I-1. Further, there was also a mistake committed in the Pan number of the vendor. For correcting the aforesaid two mistakes, the parties to Ext.P1 executed Ext.P2 rectification deed. According to the petitioner, Ext.P2 document was presented for adjudication before the 1st respondent in terms of Section 31 of the Kerala Stamp Act. On adjudication, the 1st respondent has issued Ext.P3 taking the view that Ext.P2 for all purposes should be treated as a sale deed. It is challenging Ext.P3, this writ petition is filed. 2. View taken in Ext.P3 is that, since in Ext.P1 the property sold is Flat No.I-1 and as what is now conveyed is Flat No.I-11, in the process of rectification what is really taken place is extinguishment of right in respect of one and creation of right in respect of another. It is therefore that, the 1st respondent has held that what is to be executed should be a sale deed. 3. Having heard the learned counsel for the petitioner and also the learned Government Pleader on behalf of the respondents, I am not in a position to endorse the view taken by the 1st respondent. It is true that there is an extinguishment of right in respect of one apartment and creation of right in respect of another. But, such extinguishment of right and creation of right has occurred due to a mistake that had crept into Ext.P1 sale deed. It is that mistake, which is sought to be corrected by Ext.P2 rectification deed. In that process, even if there is an extinguishment of right and creation of right, that will not alter the nature of the rectification deed and for all purposes including stamp duty, the document has to be treated as a rectification deed. 4. Therefore, the petitioner cannot be saddled with the liability to execute a fresh sale deed. For this reason, I set aside Ext.P3 and direct that the original of Ext.P2, if valid, in all other respects, will be registered as a rectification deed on being presented for registration. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE dmb |
