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2004 DIGILAW 792 (GUJ)

HARSHADBHAI MANGALBHAI PATEL v. STATE OF GUJARAT

2004-12-08

M.R.SHAH

body2004
M. R. SHAH, J. ( 1 ) IN this petition under Articles 226/227 of the Constitution of India, the petitioner has challenged the legality and validity of the order passed by the respondent no. 2 - Collector, Stamp Duty, Vadodara dated 17. 9. 1994 by which on the basis of the audit objection, the respondent no. 2 has passed an order directing the petitioner to pay an amount of Rs. 26,000//- towards deficit stamp duty and Rs. 26,000/-- by way of penalty in all Rs. 52,000/ -. ( 2 ) ONE Abdul Sattar Gul Mohammed Hakim executed the will in favour of the petitioner Harshad Mangalbhai Patel and the property in question was given to the petitioner. The said will was presented and registered before the Sub-Registrar, Vadodara on 3. 1. 1986. It appears that there was an audit objection and a show cause notice came to be issued by the respondent no. 2 on the basis of the said audit objection by which the petitioner was directed to show cause why the aforesaid document i. e. will should not be treated as the mortgage deed and the petitioner should not be directed to pay the deficit stamp duty considering the same as mortgage deed. The said notice came to be issued on 18. 5. 1994. The petitioner appears before the respondent no. 2 and filed its detailed reply contending interalia that the will will come into effect only after the death of the executant. Will can never be considered as a mortgage deed. No rights are transferred during the lifetime of the executor and the petitioner cannot become the owner during the life time of the executant. It was also submitted that in fact the will itself is not required to be registered and therefore, requested to withdraw the notice. Inpsite of the aforesaid facts and circumstances, the respondent no. 2 considering the will as mortgage deed and passed an order directing the petitioner to pay an amount of Rs. 26000/by way of deficit stamp duty and a further sum of Rs. 26000/- towards penalty, in all Rs. 52000/- which the subject matter of the present petition. ( 3 ) MS. KIRAN Pande for Shri B. S. Patel, Learned Advocate appearing for the petitioner has submitted that the respondent no. 26000/by way of deficit stamp duty and a further sum of Rs. 26000/- towards penalty, in all Rs. 52000/- which the subject matter of the present petition. ( 3 ) MS. KIRAN Pande for Shri B. S. Patel, Learned Advocate appearing for the petitioner has submitted that the respondent no. 2 has materially erred in considering the will as a mortgage deed and she has also further submitted that by no stretch of imagination, the will can be considered as a mortgage deed. She has also further submitted that in fact, the will itself is not required to be registered. Inspite of that, by way of abundant caution, the will came to be registered and the same comes into effect only after the death of the executant and therefore, requested to allow the present petition. ( 4 ) SHRI Pradeep Bhate, Learned AGP appearing for the respondent has failed to satisfy on what basis, will can be considered to be a mortgage deed. It is not possible for him to support the impugned order. ( 5 ) HEARD the Learned Advocates for the parties. ( 6 ) AS such, will is not required to be registered at all. Therefore, there is no question of making any payment of stamp duty. Still in the present case, will came to be registered with the Authority. The will comes into effect only after the death of the executant. During the life time no rights, titles are transferred in favour of the person in whose favour the will is made. Even during the life time, the executant can change the will also. Considering the aforesaid facts and circumstances, the will cannot be considered as a mortgage deed. In the present case, the will is considered as mortgage deed and on that basis, the impugned order is passed which is absolutely illegal and arbitrary. Under the circumstances, the impugned order dated 17. 9. 1994 passed by the respondent no. 2 directing the petitioner to pay an amount of Rs. 26000/- towards the deficit stamp duty and Rs. 26000/- towards penalty considering the will as mortgage deed is required to be quashed and set aside and is hereby quashed and set aside. Rule is made absolute with no order as to costs. .