Donee Of Undivided Share In Joint Property Is Entitled To Partition & Registration By Paying Stamp Duty For Partition Deeds: Kerala High Court

The Kerala High Court recently clarified that a donee of an undivided share in a co-owned property becomes a co-owner and would be entitled to seek registration of a deed partitioning the property by paying stamp duty applicable to partition deeds.Justice Basant Balaji was considering a writ petition challenging the refusing of registration of a partition deed executed by a co-owner and the son of another co-owner, who had received the undivided share in the property by a gift deed.The Court, after referring to the definition of 'instrument of partition' in Section 2(k) of the Stamp Act, observed that the afore document is a partition deed and the stamp duty payable to register the same is that applicable for partition deeds, not sale deeds.“Upon execution of the gift deed and acceptance of the gift, the petitioner steps into the shoes of his father as a co-owner. Therefore, the undivided shares belong to the petitioner, who obtained his share through a gift is entitled for partition as a co-owner… The contention that the petitioner does not become a co-owner for the purpose of stamp duty, cannot stand in the eye of law,” the Court observed.After executing a partition deed on stamp paper, the petitioner and the co-owner had come before the Sub-Registrar seeking to register the same but their request was denied. The Sub-Registrar said that the right of the petitioner is a created co-ownership and he must pay 8% of the stamp duty as well as 2% of the registration fees. This was challenged before the High Court.The Sub-Registrar appeared before the Court and submitted that while scrutinizing the afore partition deed, it was found that co-ownership no longer exists since one of the prior co-owners transferred his right via a gift deed. It was stated that the share obtained by the petitioner is independent and does not form part of the undivided share of his father.The Sub-Registrar further stated that the transaction of the petitioner and the co-owner is akin to a sale deed and the stamp duty applicable is that of a sale deed, not partition deed. Registration can be done on payment of proper stamp duty, it was said.After hearing the parties, the Court opined that since the petitioner received the undivided share of his father by gift deed, he becomes a co-owner himself. When the co-owners execute an instrument to divide or agree to divide the property, that would be a partition deed. It rejected the Sub-Registrar's contention that the petitioner cannot be treated as a co-owner for the purpose of stamp duty.Thus, the Court allowed the plea and directed the Sub-Registrar to register the document executed in accordance with the stamp duty prescribed for partition instruments. The same is to be done within a period of one month, it added.The Court further clarified that the validity of the stamp would be extended by 6 weeks since the registration was denied on illegal and unsustainable grounds.Case No: WP(C) No. 40845 of 2025Case Title: Pradeep Bharathan. K v. The State of Kerala and Ors.Citation: 2026 LiveLaw (Ker) 245Counsel for the petitioner: J.R. Prem Navaz, Muhammed SwadiqCounsel for the respondents: K.M. Faisal – Government PleaderClick to Read/Download Judgment

Donee Of Undivided Share In Joint Property Is Entitled To Partition & Registration By Paying Stamp Duty For Partition Deeds: Kerala High Court

K. Salma Jennath

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