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2006 DIGILAW 2086 (RAJ)

Rajendra Kumar v. State of Rajasthan

2006-07-03

GOVIND MATHUR

body2006
Judgment Govind Mathur, J.-To quash the order dated 010.1998 passed by the Collector (Stamps), Jodhpur and the Judgment dated 111.2000 passed by the Board of Revenue for Rajasthan, Ajmer, a writ of certiorari is sought by the petitioner. 2. Facts in brief , necessary for adjudication of this writ petition, are that Shri Virendra Kumar Jain, Smt. Rekha Jain, Shri Anil Kumar Jain and the petitioner respectively purchased Plots No. 306, 307, 308 and 309 in Manji-ka-Hatha Scheme developed by Urban Improvement Trust, Jodhpur, The petitioner wanted to establish a medical clinic over the plots referred above, therefore, reconstitution of Plots No. 306, 307, 308 and 309 was made by the Urban Improvement Trust, Jodhpur at the request of the petitioner and Shri Virendra Kumar Jain, Smt. Rekha Jain and Shri Anil Kumar Jain. The Urban Improvement Trust, Jodhpur also executed a fresh lease deed in favour of all the abovenamed persons after reconstitution of plots. 3. Shri Virendra Kumar Jain, Smt. Rekha Jain and Shri Anil Kumar Jain after execution of the lease deed decided to relinquish their rights with regard to their share in the reconstituted property and for the purpose a document in the name of release deed was executed. The documents was presented before the Sub-Registrar, Jodhpur for its registration on 30.03.1997. The Sub Registrar while registering the document made a reference to the Collector (Stamps) on 03.05.1997 to determine stamp duty by treating the document as conveyance. The Collector (Stamps) by order dated 010.1998 held that though the document is titled as release deed but in fact it intends to transfer an immovable property, therefore, is a conveyance as defined. 4. The petitioner being aggrieved by the same preferred a revision petition before the Board of Revenue for Rajasthan, Ajmer and that too came to be rejected by Judgment dated 111.2000. The Board of Revenue while affirming the order dated 010.1998 also held that even the document placed for its registration is a release deed, it is to be treated as a conveyance in light of a circular dated 18.03.1997 issued by Government of Rajasthan. 5. The instant petition for writ, hence, is preferred to challenge the order dated 010.1998 passed by the Collector (Stamps) and the Judgment dated 111.2000 passed by the Board of Revenue for Rajasthan, Ajmer. 6. 5. The instant petition for writ, hence, is preferred to challenge the order dated 010.1998 passed by the Collector (Stamps) and the Judgment dated 111.2000 passed by the Board of Revenue for Rajasthan, Ajmer. 6. Submission of learned Counsel for the petitioner is that the petitioner is a co-owner of the property with Shri Virendra Kumar Jain, Smt. Rekha Jain and Shri Anil Kumar Jain and the co-owners have released their share in property, therefore, the document could not be treated as a deed of conveyance. According to Counsel for petitioner it is nothing but a release deed. 7. The another contention of Counsel for the petitioner is that the document in question was executed on 04.03.1997 and the circular dated 18.03.1997 came into force on 12.03.1997, therefore, it is having no application with regard to transaction in question. 8. Heard Counsel for the parties. 9. According to the petitioner himself the plots No. 306, 307 and 308 were independently purchased by Shri Virendra Kumar Jain, Smt. Rekha Jain and Shri Anil Kumar Jain respectively and subsequently a reconstitution of plot was made by the Urban Improvement Trust by including Plot No. 309 with the plots referred above. The petitioner with the three persons named above was having independent share in the reconstituted plot, as such every individual was having their individual title and interest in the property purchased by the Urban Improvement Trust, Jodhpur at its Manji-Ka-Hatha scheme. 10. This Court in the case of Gyan Chand vs. State & Ors., AIR 1998 Rajasthan 223, while dealing with a similar controversy held that relinquishment of title and interest in the joint property by one joint owner in favour of another joint owner would only be transfer of interest of one joint owner in favour of another joint owner, each joint owner having distinguishable independent individual title in the jointly purchased property and, therefore, the document pertaining to the relinquishment shall be nothing but a conveyance. The relevant portion of the Judgment of this Court in the case of Gyan Chand (Supra) reads as under:- “7. Aforementioned decision lays down that deed of release can enlarge title where there is one but cannot create title where there is none. The release deed can be construed to be a deed of transfer conveying interest in the property. 8. Aforementioned decision lays down that deed of release can enlarge title where there is one but cannot create title where there is none. The release deed can be construed to be a deed of transfer conveying interest in the property. 8. Under Section 45 of the Transfer of Property Act, 1882 where immovable property is transferred for consideration to two or more persons jointly makes them co-owners of the property transferred, their interest are in proportion to the share of the consideration they have advanced. In the absence of evidence of share of the consideration the co-owners shall be presumed to have equal interest in the property. Co-owners have unity of possession and commencement of title in the property but does not have unity of title or unity of interest in the property. Joint owner of the property cannot be said to have title and interest in the property of another co-owner. Every joint owner has his individual title and interest in the property purchased jointly by them. Thus relinquishment of title and interest in the joint property by one joint owner in favour of another joint owner would only be transfer of interest of one joint owner in favour of another joint owner, each joint owner having distinguishable, independent, individual title in the jointly purchased property. 9. The right, title and interest of Laxman Singh in the property jointly purchased cannot be said to have co-existence with the right title and interest of the petitioner in the property. The deed, although styled as a release deed, in effect, had conveyed the title and interest of Laxman Singh petitioner, and, thus, the release deed having been, in fact, deed of conveyance was rightly charged with the stamp-duty as deed of conveyance.” 11. In the instant matter also the petitioner and Shri Virendra Kumar Jain, Smt. Rekha Jain and Shri Anil Kumar Jain are having their independent distinguishable and individual rights and they have transferred their such rights pertaining to an immovable property in favour of the petitioner, therefore, the Collector (Stamps) rightly held the document as a conveyance. In view of it I do not find any merit in the contention raised by Counsel for the petitioner. 12. In view of it I do not find any merit in the contention raised by Counsel for the petitioner. 12. In view of the fact that the document concerned has already been found as a conveyance, it is not necessary to examine the second contention raised by the petitioner with regard to application of circular dated 18.03.1997. 13. In view of whatever discussed above, the writ petition is dismissed with no order to costs.