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1953 DIGILAW 65 (KER)

Vasudeva Mallan v. Krishna Kammath

1953-06-22

GOVINDA PILLAI, KOSHI

body1953
Judgment :- 1. This Revision Petition has been filed under the following circumstances: The petitioner, who is the plaintiff in O.S. No. 187 of 1951 on the file of the Anjikaimal District Court, got an unstamped and unregistered, document produced in court by means of a summons issued to the person who had possession of the same. This document is now admitted on all hands to be a deed of settlement within the meaning of the Stamp Act. The document however does not set out the value of the properties settled thereunder." When it was received in court the receiving officer made a note that the document was a conveyance by way of gift and that stamp duty and penalty had to be levied accordingly. This was on 1-12-1951. Subsequently the office put up a further note that the stamp duty and penalty had to be realised on the basis of the Value of the properties as set out in the plaint in the suit.. The plaint had valued them at Rs. 9750. The court accepting the office note passed an order on 1-4-1952 to the effect that the stamp duty payable was Rs. 100/- and that a penalty of Rs. 2000/- had also to be levied. The office note had in fact mentioned these figures. This order was more in the nature of a ministerial one, the court making it without notice to, or hearing, the parties. Some time later on 18.6.1952 the plaintiff filed an application, M.P. 767 of 1952, requesting the court to reconsider its order of 1-4-1952. The petition stated inter alia that the document was only an agreement to convey immovable properties, liable to a stamp duty of Re. 1/- alone and that together with the penalty no more than a sum of Rs. 11/- was liable to be levied. On this petition the court issued notice to the opposite party and to the Government Pleader. After several adjournments the petition was finally heard on 9.9.1952. The court reserved orders and pronounced the same on 12.9.1952, holding that the document was a 'settlement' and that though the value of the properties settled was not mentioned in it, stamp duty and penalty had to be paid on the basis of the value of the properties as set out in the plaint. On that basis the stamp duty leviable was found to be Rs. On that basis the stamp duty leviable was found to be Rs. 50/- and the penalty to be Rs. 1000. The revision petition is against this order. 2. On the date the court heard arguments on M.P. No. 767 of 1952 (9.9.1952) the plaintiff had made a further application (M.P.1378) stating that as dispute has arisen as to the proper stamp duty and penalty leviable on the document on account of the Government Pleader's contention that it was a composite deed - a settlement and an agreement combined - it should be sent to the Collector for adjudication. The petition also pointed out that the Collector was the proper authority to decide the matter. That such a petition had been filed was brought to the notice of the learned judge evidently after the arguments on the earlier application were heard. The court rejected the petition then and there remarking that at had already heard arguments on the question of stamp duty and penalty. What the plaintiff-petitioner contended before us was that the lower court's, view that the document was liable to stamp duty was clearly wrong. The straight answer to it is that Chapter IV of the Stamp Act which contains the provision (Section 37, Travancore-Cochin Stamp Act, 1125 corresponding to section 35 of the Indian Stamp Act, 1899) authorising the court before which art unstamped document is produced to levy stamp duty and penalty before it is admitted in evidence, provides a complete procedure and that to rectify errors, if any, committed by the court the party aggrieved has to conform to that procedure for redress. Sections 41, 46 and 47 of the Travancore-Cochin Stamp Act corresponding respectively to sections 39,44 and 45 of its Indian counterpart may usefully be referred to in this connection. Section 41 confers power on the Collector to refund any portion of the penalty in excess of five rupees which has been paid on an instrument under section 40 (1). Section 47 (1) authorises Government to refund any penalty levied under the preceding sections in the Chapter wholly or in part. Sub-section (2) confers powers to refund any excess duty levied. Section 46 provides, that an innocent party paying duty or penalty, on an instrument may recover the same from the party through whose default the instrument was not duly stamped. 3. Sub-section (2) confers powers to refund any excess duty levied. Section 46 provides, that an innocent party paying duty or penalty, on an instrument may recover the same from the party through whose default the instrument was not duly stamped. 3. The aspect set forth above that Chapter IV of the Stamp Act provides a complete procedure has clearly been explained by Dalai, J. in a case reported in A.I.R. 1926 Allahabad 478. A reference to section 63 (Indian Act, section 61) of the Stamp Act which expressly provides for: revision by a superior court when insufficient stamp duty and penalty are levied by a trial court fortifies the view that that is the correct answer to the revision petition. Section 63, which occurs in Chapter VI, by implication shows that if excess stamp duty and penalty are levied or sought to be levied by a court the remedy is not by way of revision to a higher tribunal. Mulla and Parties Commentaries to section 61 of the Indian Stamp Act (5th Edition page 155) lend support to the view. The plaintiff first asked for an adjudication by the court as to the stamp duty and penalty leviable. His attitude would seem to have been that he will accept it if it suits him, but not otherwise. He may be entitled to that option, but the exercise of it has to be through the procedure prescribed by the Stamp Act itself and not by invoking the general power of revision conferred on this Court. 4. We cannot therefore proceed to consider the merits of the question agitated before us, namely, whether the lower court's decision as to the stamp duty and penalty is wrong and whether as contended for on behalf of the plaintiffs-petitioner the document is not liable to any stamp duty at all. The High Court has defined powers under the Stamp Act (Vide Chapt. VI) and any attempt to decide questions relating to stamp duty otherwise than under those powers will lead to serious anomalies. 5. This does not however mean that the petition should fail. What the petitioner stated before the lower court in M. P. No. 1378 that in the circumstances of the case the document had to be sent to the Collector and that his decision alone would be final was correct. 5. This does not however mean that the petition should fail. What the petitioner stated before the lower court in M. P. No. 1378 that in the circumstances of the case the document had to be sent to the Collector and that his decision alone would be final was correct. The jurisdiction to decide the question of stamp duty and penalty conferred by the proviso to section 37 (Indian Act, section 35) was only incidental to the reception of a document in evidence. The decision as would be clear from the subsequent sections in the Chapter was only provisional and was liable to be altered as envisaged in these sections. If the party at whose instance the document was brought to the court and who wanted to have it as part of his evidence in the case wanted first an adjudication by the Collector as to the proper stamp duty and penalty leviable on it, the court had only to accede to that request and not impose a decision which the party did not want. No doubt in this case the party had first invited the court to decide the matter, but before the court pronounced its order he had resiled from it. In the circumstances the court had only to follow the procedure prescribed in sections 35 and 40 (2) (sections 33 and 38 (2) of the Indian Act). 6. For the reasons stated in the preceding paragraph we set aside the lower court's order on M. P. 767 of 1952 dated 12-9-1952. This shall not have the effect of reviving its earlier order of 1-4-1952 which as already stated was one made for ministerial or administrative purposes. From the beginning, rightly or wrongly, the lower court took the view that the document was chargeable with duty. The Government Pleader as also the defendants supported that view. That was also the plaintiffs position in M. P. No. 767 of 1952. Section 35 enjoined on the court to impound such a document and in view of C. M. P. No. 1378 the court is directed to follow the procedure prescribed in section 40 (2). We make no order for costs in the revision.