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Kerala High Court
Dr. K. M. Nazar vs The Land Revenue Commissioner on 15 July, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:51802
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
TUESDAY, THE 15TH DAY OF JULY 2025/24TH ASHADHA, 1947
W.A.NO.1512 OF 2019
AGAINST THE JUDGMENT DATED 08.01.2019 IN WP(C) NO.21806 OF 2013
OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 & 2 IN W.P.(C):
1 DISTRICT REGISTRAR GENERAL
DISTRICT REGISTRARS OFFICE, ERNAKULAM-682 031.
2 THE SUB REGISTRAR,
SUB REGISTRAR OFFICE, CHENGAMANAD- 683 578
BY SMT.VINITHA B., SENIOR GOVERNMENT PLEADER
RESPONDENTS:
1 CHERUPUSHPAM ROMAN CATHOLIC CHURCH PARAKKADAVU
REPRESENTED BY REV.FR.ANIL, S/O.THOMAS, AGED 30 YEARS.
2 JOSEPH,
S/O.VARKEY, PARANIKULANGARA HOUSE, KESAVADASAPURAM,
KAVADIYAR VILLAGE, THIRUVANANTHAPURAM TALUK,
PATTAM P.O., PIN-695 004.
3 NITHIN JOSEPH,
S/O.JOSEPH, PARANIKULANGARA HOUSE, KESAVADASAPURAM,
KAVADIYAR VILLAGE, THIRUVANANTHAPURAM TALUK,
PATTAM P.O., PIN-695 004.
BY ADV.SRI.SUDHEESH KUMAR
BY ADV.SMT.M.A.VAHEEDA BABU
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
09.07.2025 ALONG WITH W.P(C).NO.16466 OF 2023, THE COURT
ON 15.07.2025 DELIVERED THE FOLLOWING:
W.A.No.1512/2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
TUESDAY, THE 15TH DAY OF JULY 2025/24TH ASHADHA, 1947
W.P(C).NO.16466 OF 2023
PETITIONERS:
1 DR. K.M.NAZAR
AGED 58 YEARS
S/O.LATE MOIDEEN KUTTY, UC COLLEGE P. O.,
KIZHAKKE KADUNGALLOOR, PIN - 683102
2 DR. AJMAL K.N.
AGED 29 YEARS
S/O.DR.K.M.NAZAR, UC COLLEGE P. O.,
KIZHAKKE KADUNGALLOOR, PIN - 683102
BY ADV.SMT.AYSHA E.M.
BY ADV.SRI.BABU KARUKAPADATH
BY ADV.SMT.M.A.VAHEEDA BABU
BY ADV.SRI.P.U.VINOD KUMAR
BY ADV.SMT.ARYA RAGHUNATH
BY ADV.SMT.VAISAKHI V.
BY ADV.SRI.T.M.MUHAMMED MUSTHAQ
BY ADV.SRI.AJWIN P LALSON
BY ADV.SMT.P.LAKSHMI
BY ADV.SMT.SHIFANA KAISE
RESPONDENTS:
1 THE LAND REVENUE COMMISSIONER
PUBLIC OFFICE BUILDING, MUSEUM ROAD,
OPPOSITE ZOO, VIKHAS BHAVAN P.O,
THIRUVANANTHAPURAM, PIN - 695033
2 DISTRICT REGISTRAR GENERAL
DISTRICT REGISTRAR OFFICE, ERNAKULAM,
W.A.No.1512/2019
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PIN - 682011
3 THE SUB REGISTRAR
SUB REGISTRAR OFFICE, CHENNAMANGALAM,
PIN - 683512
4 THE DISTRICT COLLECTOR
COLLECTORATE, KAKKANAD, ERNAKULAM,
PIN - 682030
5 KUNJUMOHAMMED
AGED 64 YEARS
S/O. LATE KUNJANMARAKKAR, PATHUVANA HOUSE,
MUPPATHADAM P.O., PIN - 683110
BY SMT.VINITHA B., SENIOR GOVERNMENT PLEADER
BY ADV.SMT.UTHARA ASOKAN
BY ADV.SRI.ABRAHAM K.JOHN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
09.07.2025 ALONG WITH W.A.NO.1512 OF 2019, THE COURT ON
15.07.2025 DELIVERED THE FOLLOWING:
W.A.No.1512/2019
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"C.R."
JUDGMENT
Dr. A.K. Jayasankaran Nambiar, J.
Writ Appeal No.1512 of 2019 preferred by the State impugns
the judgment dated 08.01.2019 of a learned Single Judge in
W.P(C).No.21806 of 2013. Writ Petition No.16466 of 2023, on the
other hand, was placed before us by order of the Hon’ble the Chief
Justice, pursuant to an interim order passed by a learned Single
Judge in the writ petition, issuing directions similar to those issued in
the judgment dated 08.01.2019 in W.P(C).No.21806 of 2013, and
directing a posting of the writ petition along with the above writ
appeal preferred by the State.
2. Briefly stated, the essential facts necessary for a disposal of
these cases, without going into specific details with regard to the
properties and parties involved in each case, are as follows; For the
sake of convenience, and for understanding the nature of the dispute
in these cases, the parties are referred to as ‘X’, Y’ and ‘Z’ and their
properties as “A Schedule”, “B Schedule” and “C Schedule”
respectively.
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3. Instruments styled as exchange deeds were entered into
between ‘X’ on the one hand, and ‘Y’ and ‘Z’ on the other, whereby A
Schedule property held by ‘X’ was exchanged for B and C Schedule
properties held separately by ‘Y’ and ‘Z’, without any money passing
between them as consideration. As per the exchange deed, ‘X’
became the absolute owner of B and C Schedule properties, and ‘Y’
and ‘Z’ became the joint owners of A Schedule property. The
instrument of Exchange was drawn up on stamp paper for which the
stamp duty amount was calculated as per Article 29 of the Schedule
to the Kerala Stamp Act.
4. When the Exchange deed was presented for registration,
however, the registering authority impounded the document in
exercise of his power under Section 33 of the Kerala Stamp Act and
forwarded the impounded documents to the District Registrar
General for his decision in terms of Section 37 of the Stamp Act. The
latter authority opined that in so far as B and C Schedule properties
were not jointly held by ‘Y’ and ‘Z’ to begin with, the document
executed between the parties could not be termed as an instrument
of exchange but had to be treated as two separate deeds of sale for
the purposes of the Kerala Stamp Act. He accordingly directed a levy
and collection of stamp duty as per Article 22 of the Schedule to the
Kerala Stamp Act. It was this decision of the District Registrar
General that was impugned in the writ petitions.
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5. The learned Single Judge, who considered W.P(C).No.21806
of 2013 found in favour of the writ petitioners on the reasoning
contained in paragraphs 9, 10, 12 and 13 of his judgment, that read
as follows:
“9. While ascertaining whether a document is a Deed of Exchange or a
Sale Deed, the nomenclature assigned by the Deed to the parties and intention
expressed in the Deed are of significance. In the case on hand, Ext.P2 Deed is
titled as a Deed of Mutual Exchange. In reading the Deed, the real nature of
transaction between the parties has to be decided having regard to the
agreement between them and not on mode in which the consideration has been
paid. A reading of Ext.P2 would bring out the intention of the parties, to exchange
respective properties in their hand for consideration of properties only. There is
no element of transaction of money disclosed in the Deed. Therefore, Ext.P2 Deed
admits of no other interpretation except that of being a Deed of Exchange.
10. Mutuality is an essential characteristic of an Exchange. The
intention of the parties to exchange the things in their hand in consideration of
exchange of the thing in the hands of the other party is important. Mutuality will
be of more significance in the matter of consideration being received. In the case
on hand, the petitioner has exchanged his property in consideration of two
distinct properties owned by respondents 3 and 4. Similarly, respondents 3 and 4
have given away their respective properties in consideration of the property
receivable from the petitioner. The said property is intended to be enjoyed jointly
by respondents 3 and 4 as is evident from Ext.P2 Deed of Exchange. Therefore, it
is clear that there is absolute mutuality between the parties in intention as well as
execution of the document.
12. Having regard to the facts of the present case and taking into
account the nature of the Deed and the intention of the parties coming out in
express terms in Ext.P2 Deed and having regard to the mutuality in consideration
expressly disclosed in the instrument, I am of the opinion that Ext.P2 is a Deed of
Exchange coming within the definition of Section 118 of the Transfer of Property
Act. Therefore, Ext.P2 Deed of Exchange can only fall under Article 29 of the
Schedule to the Kerala Stamp Act.
13. In the circumstances, Ext.P1 order of the 1 st respondent is set aside
and respondents 1 and 2 are directed to register the original of Ext.P2 Deed as a
Deed of Exchange. Respondents 1 and 2 are directed to refund the excess
amount, if any, levied from the petitioner as registration fee in respect of Ext.P2.”
6. In the writ appeal before us, the contention of the learned
senior Government Pleader Smt.Vinitha B. is that the writ court
erred in treating the document presented for registration as an
instrument of Exchange. It is her contention that so long as there
are more than two ‘persons’ between whom an exchange is effected,
the instrument will not attract the definition of an ‘Exchange’ under
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Section 118 of the Transfer of Property Act, 1882, and consequently,
the transactions envisaged thereunder will have to be seen as
separate conveyances for the purposes of the Kerala Stamp Act.
She has since submitted an argument note which reads as follows:
ARGUMENT NOTE SUBMITTED AS DIRECTED BY THIS
HON’BLE COURT
1. ISSUE INVOLVED
1.1. The primary question considered/framed by the learned Single Judge in
the judgment dated 08.01.2019 in WP(C)No.21806/2023, which lead to the filing
of WA No.1512/2019, as recorded in paragraph 1 of the judgment, is whether the
triangular transaction between the writ petitioner and respondents 3 and 4,
involving the exchange of properties amongst three parties, qualifies as an
“exchange” under Article 29 of the Kerala Stamp Act or must be treated as
multiple conveyances chargeable under Articles 21 and 22.
2. ARTICLE 29 OF THE KERALA STAMP ACT, 1959 (AS AMENDED IN
2010)2.1. Article 29 reads as follows:
“The same duty as a conveyance (No. 21 or 22 as the case may be) for the fair
value of the land or for the amount of the consideration, whichever is higher, of
the property of the greater value as set forth in such instrument.”
2.2. The 2010 amendment was introduced to ensure parity in stamp duty
between exchanges and conveyances to prevent evasion of duty through the
device of exchange deeds.
2.3. The 2010 correction aimed to align duties on exchange with those on
conveyance – ensuring fiscal parity and preventing underpayment by artificially
arranging “exchange” deeds. The legislature clarified computation by restricting
duty liability to the higher-valued property in a two-party bilateral exchange,
thereby closing loopholes used for evasion of stamp duty.
3. SCOPE OF ARTICLE 29 – APPLICABILITY ONLY TO BILATERAL
EXCHANGE
3.1. The statutory language contemplates a bilateral exchange involving ex-
actly two properties and two parties.
3.2. The term “property of the greater value” relates to the higher-valued
property between the two parties only, and does not extend to three or more par-
ties or properties.
3.3. A triangular exchange involving three properties and three parties does not
fall within Article 29, and such arrangement can be construed as a single ex –
change.
3.4 In the context of a triangular exchange deed being used to evade stamp duty,
it is submitted that:-
“In R.M.D.C. v. State of Mysore 1 the Hon’ble Supreme Court reiterate that a
statute (or action under it) must be tested for its real character, and cannot avoid
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constitutional or statutory obligations through colourable means of disguised
mechanisms.”
3.5. Such a construction would allow evasion of stamp duty for the additional
transfers, defeating the legislative intent.
3.6. Crawford v. Spooner2 supports the interpretation that exchange is a bilateral
contract. It was held that:
“We cannot aid the legislature’s defective phrasing of an Act, we cannot add or
mend, and, by construction, make up deficiencies which are left there. It would
be assuming legislative authority for the purpose of supplying omissions in a
statute.”
4. DEFINITION OF EXCHANGE UNDER SECTION 118 OF
THE TRANSFER OF PROPERTY ACT, 1882
4.1. Section 118 defines exchange as:
“When two persons mutually transfer the ownership of one thing for the owner –
ship of another, the transaction is called an exchange. Transfer in exchange can
only be made in the manner provided for transfer by sale.”
4.2. The section clearly limits exchange to two persons only with mutual
transfer.
5. IMPORTANCE OF MUTUALITY AND QUID PRO QUO IN
EXCHANGE DEEDS
5.1. The legal foundation of an exchange is the principle of mutuality and
quid pro quo, i.e., each party must receive something in return for what is given.
5.2. The requirements include:
* A bilateral agreement involving only two parties.
* Reciprocal transfer of ownership concurrently or as agreed.
* Consideration of approximate equality or agreed value.5.3. In the present case, the triangular transaction involves three parties and
lacks quid pro quo between any two parties individually.5.4. Respondents 3 and 4 do not mutually transfer properties directly to each
other with the petitioner as a party to both simultaneously.5.5. Therefore, the transaction is not an exchange as per law but a series of con-
veyances.
5.6. The absence of mutuality and quid pro quo disqualifies the transaction from
Article 29‘s ambit.
5.7. The phrase “property of the greatest value” presupposes that two
properties are being exchanged. This applies only when there is mutuality be-
tween two parties. The duty payable is based on the higher of the two values be-
ing exchanged.
In a triangular transaction, this formula becomes inapplicable. It is not possible
to determine the “property of the greatest value” where more than two properties
are involved. There is no bilateral reciprocity, and thus no valid measure for
stamp duty under Article 29.
5.8. Article 29 duty is tied to one higher-valued property in a two-party exchange,
not aggregated or segmented among multiple transfers. Stretching this to accom-
modate three-party agreements destroys the statutory mechanism for calculation
and application of stamp duty. Exchange must be strictly between two parties by
Section 118 TPA, and fiscal statutes are bindingly restrictive. Any attempt to ap-
ply Article 29 to a triangular transaction results in an untenable interpretation
that overrides legislative clarity.
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5.9. “Expressio unius est exclusio alterius” is a Latin legal maxim meaning “the
expression of one thing is the exclusion of another.” It’s a principle of statutory
interpretation that suggests when a law explicitly lists certain items, it implies the
exclusion of other items that are not mentioned. Essentially, it means that if a law
includes specific examples, it’s presumed that any similar items not listed were in-
tentionally left out. Hence, it is submitted that when Article 29 read with Section
118 of the TP act speaks about mutuality as a prerequisite for executing a valid
exchange deed for the purpose of payment of stamp duty, and the intention of the
legislature to include the highest valued property in a bilateral transaction is obvi-
ous with the 2010 amendment brought out in Article 29 of the Kerala Stamp Act,
the declaration of the single judge to the contrary vitiates the established princi –
ples of law and prejudices the interests of the state.
5.10. The crux of the argument raised is that the transaction at hand involves
three parties and three properties. A triangular transaction as alleged cannot be
legally termed as exchange in the sense of Section 118 of the Transfer of Property
Act or Article 29 of the Stamp Act. Such a tripartite transaction lacks the essen-
tial mutuality of consideration between each pair of parties. Mutuality of agree-
ment implies a reciprocal transfer between two parties, with each providing con –
sideration directly to the other. Where one party transfers property to two others
(or vice versa), the direct bilateral obligation and consideration between each pair
becomes ambiguous and legally strained. This lack of reciprocal quid pro quo
makes it legally difficult – if not possible – to treat the transaction as a single ex-
change under Section 118 or Article 29.
6. ARTICLES 21 AND 22 – STAMP DUTY ON CONVEYANCES
6.1. Articles 21 and 22 prescribe stamp duty on conveyances calculated on
the fair value or consideration of each property transferred.
6.2. Since petitioner receives properties from respondents 3 and 4 separately, the
duty payable must be calculated independently for each conveyance.
7. REGISTRATION AND STAMPING REQUIREMENTS
7.1. Since 17 of the Registration Act, 1908, mandates registration of immov-
able property transfers.
7.2. Section 39(1)(d) of the Stamp Act bars registration of documents not duly
stamped.
7.3. Mischaracterizing the instrument as a single exchange deed under Article 29
leads to under-stamping and hence non-registration.
8. JUDICIAL PRECEDENTS ON EXCHANGE AND TAX EVASION
8.1. McDowell & Co. Ltd. v. CTO, (1985) 154 ITR (SC) 3 Transactions formed
to evade tax are invalid (Colourable device doctrine).
9. DOCTRINE AGAINST COLOURABLE DEVICES
9.1. The Supreme Court in McDowell held that transactions designed to avoid
tax by artifice will be disregarded.
9.2. The triangular exchange is a colourable device for evading stamp duty and
must be struck down.
10. CONCLUSION AND PRAYER
10.1. Article 29 applies only to bilateral exchanges; the present triangular trans-
fer falls outside its scope.
10.2. Section 118’s definition and the doctrine of mutuality/quid pro quo negate
the possibility of such an exchange.
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10.3. The transactions must be treated as separate conveyances chargeable un-
der Articles 21 and 22.
10.4. The impugned judgment allowing the exchange under Article 29 is liable to
be set aside.
10.5. The writ petition must be dismissed with costs.
7. Per Contra, it is the submission of Adv.Sri.S.Sudheesh
Kumar and Adv.Smt.M.A.Vaheeda Babu appearing for the party
respondents in the writ appeal/petitioners in the writ petition, that so
long as the principle of mutuality is attracted through the exchange
of properties between ‘X’ on the one hand, and ‘Y’ and ‘Z’ jointly on
the other, and the consideration does not involve money, the
definition of ‘Exchange’ under Section 118 of the Transfer of
Property Act would be attracted and the stamp duty payable would
be only as per Article 29 of the Schedule to the Kerala Stamp Act.
8. We have considered the rival submissions and perused the
pleadings and the applicable statutory provisions. For the sake of
convenience, we deem it apposite to extract the relevant statutory
provisions below:
5. “Transfer of property” defined
In the following sections “transfer of property” means an act by which a living
person conveys property, in present or in future, to one or more other living persons or
to himself, or to himself and one or more other living persons; and “to transfer
property” is to perform such act.
[In this section “living person” includes a company or association or body of
individuals, whether incorporated or not, but nothing herein contained shall affect any
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law for the time being in force relating to transfer of property to or by companies,
associations or bodies of individuals.
Section 118:
118. “Exchange” defined.–When two persons mutually transfer the ownership of
one thing for the ownership of another, neither thing or both things being money only,
the transaction is called an “exchange”.
A transfer of property in completion of an exchange can be made only in man-
ner provided for the transfer of such property by sale.
2. Definitions:-
(d) "conveyance" includes,-
(i) a conveyance on sale;
(ii) every order made under section 232 of the Companies Act,
2013 (Central Act 18 of 2013) in respect of amalgamation or reconstruction of
companies;
(iii) every order made by the Reserve Bank of India under section
44A of the Banking Regulation Act, 1949 (Central Act 10 of 1949); and
(iv) every other instrument, by which property, whether movable
or immovable or any interest in any property is transferred inter vivos and which is not
otherwise specifically provided for by the Schedule.
3. Instruments chargeable with duty:- Subject to the provisions of this
Act and the exemptions contained in Schedule, the following instruments shall be
chargeable with duty of the amount indicated in that Schedule as the proper duty therefore,
respectively, that is to say –
(a) every instrument mentioned in the Schedule which not having been
previously executed by any person, is executed in the territories of the State of Kerala on or
after commencement of this Act; and
(b) every instrument mentioned in that schedule which, not having been
previously executed by any person, is executed out of the State of Kerala on or after that
day relates to any property situate, or to any matter or thing done or to be done, in the
territories of the State of Kerala and is received in the territories of the State of Kerala:
Provided that no duty shall be chargeable in respect of –
(1) any instrument, executed by, or on behalf of, or in favour of, the
Central Government of this or any other State Government in case where, but for this
exemption, the Central Government or the State Government, would be liable to pay the
duty chargeable in respect of such instrument;(2) any instrument for sale, transfer or other disposition either absolutely
or by way of mortgage or otherwise of any ship or vessel or any part, interest, share or
property of or in any ship or vessel.
5. Instruments relating to several distinct matters:- Any instrument
comprising or relating to several distinct matters shall be chargeable with the aggregate
amount of the duties with which separate instruments, each comprising or relating to one
of such matters, would be chargeable under this Act.
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Conveyance as defined in Section 2(d) not being a transfer charged or exempted under
No.55 immovable Property situated, –
(i) within the Municipalities/Town- Eight rupees for every rupees 100 or part
ships/Cantonments other than thereof of the fair value of the land or the
Corporations. amount or value of the consideration for
such conveyance, whichever is higher.
(ii) Conveyance as stated in (i) Two times the stamp duty paid in
above, in respect of the whole or respect of the previous conveyance deed
portion of the property involved or the stamp duty payable under (i) above,
in the previous conveyance, whichever is higher.
when executed within a period of
three months from the date of
registration of previous
conveyance.
(iii) Conveyance as stated in (i) One and a half times the stamp duty paid
above, in respect of the whole in respect of the previous conveyance deed
of portion of the property in- or the stamp duty payable under (i) above,
volved in the previous con- whichever is higher.
veyance, when executed after
three months and before six
months from the date of regis-
tration of previous conveyance.
(iv) Within the Municipal Eight rupees for every rupees 100 or part
Corporations: thereof of the fair value of the land or
the amount or value of the consideration
for such conveyance, whichever is
higher.
(v) Conveyance as stated in (iv) Two times the stamp duty paid in respect
above, in respect of the whole of the previous conveyance deed or the
or portion of the property stamp duty payable under (iv) above,
involved in the previous whichever is higher.
conveyance when executed
within the period of three
months from the date of
registration of previous
conveyance.
(vi) Conveyance as stated in (iv) One and a half times the stamp duty paid
above, in respect of the whole in respect of the previous conveyance
or portion of the property deed or the stamp duty payable under (iv)
involved in the previous above, whichever is higher.
conveyance, when executed
after three months and before
six months from the date of
registration of previous
conveyance.
Article 29:
Exchange of property - instrument of: The same duty as a conveyance (No.21 or
22, as the case may be) for the fair value of
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the land or for the amount of consideration,
whichever is higher, of the property of the
greater value as set forth in such instru-
ment.
55. Transfer (whether with or without consideration)-
(a) of debentures, being mar- Fifty paise for every one hundred rupees or
ketable securities, whether the part thereof of the face amount of the
debenture is liable, to duty or debenture.
not:
(b) of debentures stocks: One rupee for every one hundred rupee or
part thereof of the face amount of the
debenture.
(c) of any interest secured by a
bond, mortgage deed or policy
of insurance-
(i) if the duty on such bond, The duty with which such bond, mortgage
mortgage deed or policy does deed or policy of insurance is chargeable.
not exceed fifty rupees
(ii) in any other case: Fifty rupees
(d) of any property under the Ad- Forty rupees
ministrators-General Act, 1963
(Central Act 45 of 1963), Sec-
tion 22.
(e) of any trust property without Fifty rupees or such smaller amount as
consideration from one trustee may be charged under clauses (a) to (c) of
to another trustee or from a this article.
trustee to a beneficiary.
9. When we analyse the facts before us in the light of the
statutory provisions noticed above, we find ourselves in complete
agreement with the learned Single Judge that the document executed
between ‘X’ on the one hand, and ‘Y’ a ‘Z’ on the other, in
circumstances where there was no money offered as consideration,
was nothing but an instrument of exchange for the purposes of
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Section 118 of the Transfer of Property Act. Section 5 of the
Transfer of Property Act clearly recognises a transfer of property
from one living person to one or more other living persons as a valid
transaction in law, and so long as there was an element of mutuality
between the parties on either side regarding the receipt of property
with absolute rights thereto, and there was no money forming part of
the consideration, the transaction had to be seen as an “exchange”.
We cannot therefore accept the contention of the learned senior
Government Pleader, that the concept of mutuality cannot exist when
there are more than two persons or properties involved in a
transaction. The concept of mutuality is one that qualifies the
interests of the parties to a transaction, in the properties dealt with
thereunder. Thus, so long as there is a mutual interest of the parties
(whether two or more) in the properties transacted, the transaction
will attract the definition of ‘Exchange’ under Section 118 of the
Transfer of Property Act. To illustrate with the example taken in the
instant cases, while ‘X’, as one of the persons to the transaction, has
an interest in the individual properties of ‘Y’ and ‘Z’ transferred in
his favour, the latter being the other person(s) to the transaction,
have interests in the property of ‘X’ jointly transferred to them. We
also note that the definition above also clarifies that a transfer of
property in completion of an exchange can be made only in the
manner provided for the transfer of property by sale. It is therefore
that the instrument of exchange is executed to complete the mutual
transfer of rights over the properties exchanged.
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10. As regards the stamp duty applicable to the instrument of
exchange, we find that there is a specific provision under the
Schedule to the Kerala Stamp Act that deals with instruments of
exchange viz. Article 29. Under the said provision, an instrument of
exchange has to be treated as a conveyance under Articles 21 or 22
for the purposes of stamp duty, with the only distinction that, for
valuation purposes, only the property of the greater value, as set
forth in the instrument, can be taken. This would mean that in the
situation noticed above, where three items of property [Schedules A,
B and C] are exchanged between ‘X’, ‘Y’ and ‘Z’, then, for stamp duty
purposes, only the property of the greater value among Schedules A,
B and C would be taken for valuation purposes and computation of
stamp duty.
11. It is important to note that the above position arises solely
on account of the specific provisions of Article 29 because, in the
absence of the said provision, the stamp duty computation, by
treating the instrument of exchange as a conveyance under Article
22, would have been by viewing the instrument as effecting three
transactions viz. (i) transfer of Schedule A property from ‘X’ to ‘Y’ and
‘Z’ jointly (ii) transfer of Schedule B property from ‘Y’ to ‘X’ and (iii)
transfer of Schedule C property from ‘Z’ to ‘X’. The provisions of
Section 5 of the Kerala Stamp Act would have then mandated that
each of the above three transactions be seen as covered by separate
W.A.No.1512/2019
& :: 16 ::
W.P.(C).NO.16466/2023
2025:KER:51802
instruments, and the aggregate amount of duties thereon, charged
on the instrument presented for registration.
Since in the cases before us, we have found that the
document presented for registration qualifies as an instrument of
exchange, the computation of stamp duty would have to be in
accordance with Article 29 of the Schedule to the Kerala Stamp Act
by taking only the property of the greater value for the purposes of
the said computation. Writ Appeal No.1512 of 2019 is therefore
dismissed by upholding the judgment of the learned Single Judge
impugned therein, and Writ Petition No.16466 of 2023 disposed in
terms of the said judgment of the learned Single Judge in
W.P(C).No.21806 of 2013, as supplemented by the findings in this
judgment.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGESd/-
P.M.MANOJ
JUDGE
prp/
W.A.No.1512/2019
& :: 17 ::
W.P.(C).NO.16466/2023
2025:KER:51802
APPENDIX OF W.P(C).NO.16466/2023
PETITIONER'S EXHIBITS:
Exhibit P1 A TRUE COPY OF THE EXCHANGE DEED DATED
31/03/2022 EXECUTED BY THE PETITIONERS 1 AND
2 ON ONE PART AND THE 5TH RESPONDENT ON THE
OTHER PART
Exhibit P2 A TRUE COPY OF THE CHALAN RECEIPT DATED
30/03/2022 EVIDENCING REMITTANCE OF
RS.22,06,145/- FOR REGISTRATION OF EXHIBIT
P1
Exhibit P3 A TRUE COPY OF THE CHALAN RECEIPT DATED
22/04/2022 EVIDENCING REMITTANCE OF
RS.3,89,000/- ALSO AS ADDITIONAL
REGISTRATIONAL FEE, AS INSISTED BY THE 3RD
RESPONDENT
Exhibit P4 A TRUE COPY OF THE ORDER DATED 01/10/2022
PASSED BY THE 2ND RESPONDENT UNDER SECTION
39 (1) (B) OF THE KERALA STAMP ACT, INTER
ALIA CONCLUDING THAT, THE DOCUMENT SHOULD BE
TREATED AS TWO SALE DEEDS SINCE THE PROPERTY
OF THE PETITIONERS ARE NOT CO-OWNED BY THEM,
FURTHER DIRECTING THEM TO REMIT AN AMOUNT OF
RS.15,56,000/- + RS.15,560/- FINE WITHIN A
PERIOD OF 15 DAYS
Exhibit P5 A TRUE COPY OF THE JUDGMENT DATED 08/01/2019
OF THIS HON’BLE COURT IN WP(C) NO.21806/2013
Exhibit P6 A TRUE COPY OF THE APPEAL DATED 15/11/2022
SUBMITTED BY THE 1ST PETITIONER BEFORE THE
1ST RESPONDENT
Exhibit P7 A TRUE COPY OF THE REMINDER DATED 30/03/2023
SUBMITTED BY THE 1ST PETITIONER BEFORE THE
1ST RESPONDENT
Exhibit P8 A TRUE COPY OF THE REPLY DATED 29/03/2023
ISSUED BY THE 1ST RESPONDENT TO THE 1ST
PETITIONER RECEIVED ON 04/04/2023 INTIMATING
THAT, EXHIBIT P6 HAS BEEN ACCEPTED ON FILES
AS REVISION UNDER SECTION 54 (1) OF THE ACTRESPONDENTS EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
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