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1992 DIGILAW 273 (KER)

Sivaraman v. State of Kerala

1992-07-31

SREEDHARAN

body1992
Judgment :- Petitioners 1 to 3 and 4th respondent are brothers. 4th respondent instituted O.S.No.10/83 on the file of the Additional Munsiffs Court, Palghat against the first petitioner. The dispute in that suit centred around a tamarind tree. 4th respondent contended before the court that the tree stands in the portion allotted to him in the family partition. To support-that plea, he produced an unregistered partition deed written on plain paper. An application for receiving that document in evidence was also filed by him. First petitioner who was alone made party in that suit contended that the document is a concocted and fabricated one and that he did not subscribe his signature to it. The court impounded the document and forwarded it to the third respondent for collection of stamp duty and penalty. When the suit came up for trial, 4th respondent reported, "not pressed". Consequently the suit was dismissed. So the court had no opportunity to examine the contention of the first petitioner regarding the genuineness of the document. 2. Third respondent issued notice to petitioners requiring them to show cause why stamp duty and penalty totalling toRs.1100/- be not levied from them. Petitioners sent a detailed reply contending that the document was sought to be relied on by the 4th respondent only and that he alone should be saddled with the liability if any under the j Stamp Act. They also contended that they were not signatories to the document, which was produced by the 4th respondent before the court as a partition deed. Third respondent by Ext. PS order dated 9-3-1986 directed petitioners and the 4th respondent, alleged executants of the document of partition, to pay stamp duty of Rs.100/- and penalty of Rs.1000/- in equal shares. Petitioners challenged that order before the Board of Revenue in revision. By Ext.P7 order dated 29-3-1988 the Board of Revenue dismissed the revision petition holding that petitioners are liable to pay the stamp duty and penalty as per S.30(f) of the Kerala Stamp Act, 1959. This order is under challenge. 3. Though notice on this petition was served on respondents, none cared to file any counter affidavit. 4. By Ext.P7 order dated 29-3-1988 the Board of Revenue dismissed the revision petition holding that petitioners are liable to pay the stamp duty and penalty as per S.30(f) of the Kerala Stamp Act, 1959. This order is under challenge. 3. Though notice on this petition was served on respondents, none cared to file any counter affidavit. 4. The short question that arises for consideration in this petition is whether petitioners are liable to pay the stamp duty and penalty along with the 4th respondent or whether the 4th respondent alone is liable to pay the stamp duty on the documents stated to be the partition deed executed by them. O.S. No.10/83 on the file by the Addl. Munsiffs Court, Palghat was filed by the4th respondent against the first petitioner. In support of his contentions in the suit he wanted to rely on a document purporting to be a partition deed. That document was written on plain paper and was not registered. First petitioner, the defendant in the suit, contended that the document is a concocted and fabricated one and that he had not subscribed his signature to it. The court could not examine the correctness or otherwise of the contention raised by the first petitioner because 4th respondent got the suit dismissed by stating not pressed. By that time the court impounded the document and forwarded it to the third respondent for collection of stamp duty and penalty, S.39(1)(b) of the Kerala Stamp Act, 1959 provides that if the Collector is of opinion that an instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or the deficient portion thereof whether such amount exceeds or falls short of five rupees. asper S.43 of the Act, when any duty or penalty has been paid under S.39 by any person in respect of an instrument, and by agreement or under the provisions of S.30 or any other enactment in force at the time such instrument was executed, some other person was bound to bear the expense of providing the proper stamp for such instrument, the first mentioned person shall be entitled to recover from such other person the amount of the duty or penalty so paid. The document sought to be impounded in the instant case is one coming under S.30(f) of the Kerala Stamp Act, 1959. The parties to the partition deed are to meet the expenses for providing the stamp paper in proportion to their respective shares in the whole property partitioned. Since the document relied on appears to be a partition deed, ordinarily the parties thereto should bear the stamp duty in proportion to their respective shares. In the instant case, petitioners dispute the execution of the document. First petitioner, who was the sole defendant in the suit filed by the 4th respondent, raised a contention that the document was fabricated and that he did not subscribe his signature to it. That contention could not be examined by the court. But 41h respondent wanted that document to be let in, in evidence. He was relying on the document. Therefore he is to be made liable for the stamp duty and penalty. After paying the same, he will be entitled to recover the amount of stamp duty and penalty so paid from others, if he is legally entitled to the same. If the document relied on by the 4th respondent was infact executed by the petitioners as a partition deed, then on proof of that, 4th respondent will be entitled to recover the amount of stamp duty and penalty from them. In the impugned order, Board of Revenue observed:- "Sections 42 and 44 of the Indian Stamp Act give rise to the inference that the stamp duty and penalty are leviable in the first instance from the person producing the instrument before the court or the Collector because he seeks to tender it or rely on it. In the impugned order, Board of Revenue observed:- "Sections 42 and 44 of the Indian Stamp Act give rise to the inference that the stamp duty and penalty are leviable in the first instance from the person producing the instrument before the court or the Collector because he seeks to tender it or rely on it. Such persons can recover the amount of stamp duty and penalty from the persons who are liable to pay the stamp duty and penalty under S.43 of the Kerala Stamp Act read with S.30(f) of the said Act." After having made the above observation, I do not find any justification for the Board of Revenue to saddle petitioners with liability to pay the deficit stamp duty and penalty. Petitioners 2 and 3 were not parties to O.S.No.10/83 either. They had specifically contended before the third respondent that they never executed the partition deed which was sought to be produced in court by the 4th respondent. When petitioners 1 to 3 have categorically denied the execution of partition deed and raised a contention that the document is a fabricated one, they should not have been made liable for stamp duty and penalty. The stamp duty and penalty should have been recovered from the party who wanted to rely on the document before court. In this view, Ext. PV order passed by the Board of Revenue making petitioners 1 to 3 liable for stamp duty and penalty is quashed. I make it clear that respondents 1 to 3 will be at liberty to recover the stamp duly and penalty from the 4th respondent. Original petition is allowed in the above terms. I make no order as to costs.