ORDER (ORAL) Sushil Harkauli, Ag. C.J.,-- 1. This intra-Court appeal preferred under section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, challenges the order dated 25.6.2001 passed by a learned Single Judge of this Court in W.P. No. 1017/2001. A Division Bench of this Court heard the appeal and referred the entire appeal for consideration by a Larger Bench with the following words :- “Regard being had to all the aspects that have arisen before us we are of the considered opinion that the controversy is of immense signification and involves substantial question of law of general importance. This, it is apt that the matter should be heard by a Larger Bench. We also think it condign that the entire case be heard and decided by a Larger Bench so that the controversy is put to rest in an authoritative manner. Thus, we restrain ourselves from framing any question. We are inclined to refer the matter to the Larger Bench under Rule 8 (2) of the High Court of Madhya Pradesh Rules, 2008.” 2. The bare facts necessary for the decision of this appeal are that the respondent No. 3 Abhishek Griha Nirman Sahakari Sanstha Maryadit (hereinafter referred to as ‘the Society’) is a co-operative housing society. The Society purchased the property bearing Survey No. 93, area 0.364 hectare (39204 sq. ft.) from its owners (called the Keemti family) by sale deed dated 7.5.1995. The property was subsequently sold by the society to the present appellants by 4 sale deeds, dated 30.5.2007. There is no dispute that full stamp duty was paid on the 4 sale deeds executed by the Society in favour of the present appellants. After purchasing the land on 30.5.1997, the appellants constructed a building thereon after obtaining the necessary sanction for construction from the concerned authorities. Much after the 4 sale-deeds, and after the construction, a proceeding was initiated on 1.5.1999 against the said society by the Competent Authority by the Indian Stamp Act, 1899 (for brevity ‘the Act’) for recovery of the shortage of stamp duty amounting to Rs. 64,35,908/- in respect of the sale deed dated 7.5.1995 executed in favour of the Society. Much after the 4 sale-deeds, and after the construction, a proceeding was initiated on 1.5.1999 against the said society by the Competent Authority by the Indian Stamp Act, 1899 (for brevity ‘the Act’) for recovery of the shortage of stamp duty amounting to Rs. 64,35,908/- in respect of the sale deed dated 7.5.1995 executed in favour of the Society. The said stamp duty was assessed by order dated 24.9.1999 on the ground that the society had acquired the said land by the sale-deed dated 7.5.1995 without payment of the stamp duty because of exemption which was improperly obtained. The authority under the Act by order dated 15.3.2001 attached the said property as the respondent-Society had not paid the requisite stamp duty on the instrument of sale. The said attachment was done taking recourse to the provisions under the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to short as ‘the Code’). 3. The recovery and attachment was unsuccessfully objected to, then unsuccessfully challenged in appeal and finally in the writ petition which was dismissed by the impugned order by the learned Single Judge. 4. We have heard both sides. In the light of the facts mentioned above and the arguments advanced, the following basic questions arise for consideration :- “(1) Whether the assessed shortage of stamp duty, and penalty, if any, amounts to a ‘charge’ on the property which is the subject matter of the deficient sale-deed? (2) If so, whether the present appellant are bonafide purchaser of the property for consideration? (3) If so, whether they had notice of the charge? (4) If not, whether there is any law under which the charge can be enforced, against a purchaser for consideration without notice of the charge?” 5. Section 100 of the Transfer of Property Act defines a “charge” and also specifies the person against whom and the circumstances under which the “charge” is not enforcable. It reads as under :- “100. Charges -- Where immovable property of one person is by the act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.” (Emphasis supplied). 6. In the Ahmedabad Municipal Corporation of the City of Ahmedabad v. Haji Abdul Gafur Haji Hussenbhai, AIR 1971 SC 1201 , it has been held in respect of section 100 of the Transfer of Property Act :- “This section in unambiguous language lays down that no charge is enforcable against any property in the lands of a transferee for consideration without notice of the charge except where it is otherwise expressly provided by any law for the time being in force. The saving provision of law must expressly provide for enforcement of a charge against the property in the hands of a transferee for value without notice of the charge and not merely create a charge.” (Emphasis supplied) 7. In State of Karnataka and another v. Shreyas Papers (P) Ltd. and others, (2006) 1 SCC 615 , it has been held :- “18. The next limb of Mr. Hegde’s arguments was that since section 13 (2) (i) of the KST Act creates a charge on the property of the defaulting company, the charge would continue on the properties, even if it changes hands by transfer. *** *** *** 20. As the section itself unambiguously indicates, a charge may not be enforced against a transferee, if she/he has had no notice of the same, unless by law, the requirement of such notice has been waived. This position has long been accepted by this Court in Dattatreya Shankar Mote v. Anand Chintaman Datar and in Ahmedabad Municipal Corpn. of the City of Ahmedabad v. Haji Abdulgafar Haji Hussenbhai (hereinafter ‘Ahmedabad Municipal Corpn.’). In this connection, we may refer to the latter judgment, which is particularly relevant for the present case.” 8. This position has long been accepted by this Court in Dattatreya Shankar Mote v. Anand Chintaman Datar and in Ahmedabad Municipal Corpn. of the City of Ahmedabad v. Haji Abdulgafar Haji Hussenbhai (hereinafter ‘Ahmedabad Municipal Corpn.’). In this connection, we may refer to the latter judgment, which is particularly relevant for the present case.” 8. Section 47-A (3) of the Stamp Act reads as under :- “(3) The Collector may suo motu within five years from the date of registration of any instrument not already referred to him under sub-section (1) call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject-matter of any such instrument and the duty payable thereon and, if after such examination, he has reason to believe that the market value of such property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2). The difference, if any, in the amount of duty shall be payable by the person lilable to pay the duty: Provided that nothing in this sub-section shall apply to any instrument registered before the date of commencement of the Indian Stamp (Madhya Pradesh Amendment) Act, 1975.” (Emphasis supplied) 9. Regarding the person by whom the stamp duty is payable and the manner of its recovery, reference may be made to section 29and 48 of the Act, which read as follows :- “29. Duties by whom payable . Regarding the person by whom the stamp duty is payable and the manner of its recovery, reference may be made to section 29and 48 of the Act, which read as follows :- “29. Duties by whom payable . -- In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne :- (a) in the case of any instrument described in any of the following Articles of Scheduled I, namely :- No. 2 (Administrative Bond) No. 6 (Agreement relating to Deposits of Title-deeds, Pawn or Pledge), No. 13 (Bill of Exchange), No. 15 (Bond), No. 16 (Bottomry Bond), No. 26 (Customs Bond), No. 27 (Debenture), No. 32 (Further charge), No. 34 (Indemity Bond), No. 40 (Mortgage deed), No. 43 [Note of Memorandum (add in U.P.)], No. 49 (Promissory Note), No. 55 (Release), No. 56 (Respondentia Bond), No. 57 (Security Bond or Mortgage deed), No. 58 (Settlement), No. 62 (a) (Transfer of shares in an incorporated company or other body corporate) No. 62 (b) (Transfer of debentures, being marketable securities, whether the debenture is liable to duty or not, except debentures provided for by section 8), No. 62 (c) (Transfer of any interest secured by a bond, mortgage-deed or policy of insurance), by the person drawing, making or executing such instrument; (b) in the case of a policy of insurance other than fire insruance by the person effecting the insurance ; (bb) in the case of policy of fire insurance by the person issuing the policy; (c) in the case of a convenyance (including a re-convenyance of mortgaged property) by grantee; in the case of a lease or agreement to lease by the lessee or intended lessee; (d) in the case of a counterpart of a lease by the lessor; (e) in the case of an instrument of exchange by the parties in equal shares; (f) in the case of a certificate of sale by the purchaser of the property to which such certificate releates; and (g) in the case of an instrument of partition by the parties thereto in proportion to their respective shares in the whole property partitioned, or, when the partition is made in execution of an order passed by a Revenue Authority or Civil Court or arbitator, in such porportion as such authority, Court or arbitrator directs. (Emhpasis supplied) 48. (Emhpasis supplied) 48. Recovery of duties and penalities : -- All duties, penalties and other sums required to be paid under this chapter may be recovered by the Collector by distress and sale of the movable property of the person from whom the same are due; or, by any other process for the time being in force for the recovery of arrears of land revenue.” 10. Admittedly in the present case there is no contract to the contrary in the sale deed dated 7.5.1995 by the Keemti Family in favour of the Society on which there was deficiency of stamp duty. Therefore, under section 29 of the Act the liability for payment of the Stamp duty was that of the Society. 11. But liability to pay by itself does not create a “charge” over the property. As seen from section 100 of the Transfer of Property Act (quoted above) a charge can be created only in two ways, namely (i) by act of parties, i.e......... by contract, or (ii) by operation of law. 12. There is nothing to show that the Society created any charge over the property by any express or implied contract. So it has to be examined whether any charge was created by operation of any law. 13. The State of Madhya Pradesh relies upon section 137 and 139 of the Code, which reads as follows :- “137. Land Revenue first charge on land. -- The land revenue assessed on any land shall be first charge on that land and on rents and profits thereof.” “139. Land revenue recoverable from any person in possession. -- In case of default by any person who is primarily liable under section 138, the land revenue, including arrears, shall be recoverable from any person in possession of the land ...............” 14. Now under section 137 it is the “land revenue” which, by operation of law (Statute), constitutes a charge over the land. ‘Land Revenue’ is distinct from ‘monies recoverable as arrearss of land revenue’. It may be noticed that land revenue is a tax on land while stamp duty is not a tax on land, but is a tax on an instrument of transfer (sale-deed). ‘Land Revenue’ is distinct from ‘monies recoverable as arrearss of land revenue’. It may be noticed that land revenue is a tax on land while stamp duty is not a tax on land, but is a tax on an instrument of transfer (sale-deed). Therefore, we are unable to hold that by virtue of section 137 or section 139 of the Code, individually or read together, by their express words or by necessary intendment, ‘monies recoverable as arreras of land revenue’ will constitute a ‘charge’ over the land. 15. In Manoharlal Awal v. State of M.P. and another, reported in 1978 JLJ 89 , a Full Bench of this Court held :- “10. From the above analysis it can be cleary seen that (i) “an arrear of land revenue” is distinct and separate from (ii) “money recoverable as an arrear of land revenue”; and this distinction has been studiously maintained throughout the Chapter. The intention of the Legislature becomes obvious enough. In every section only that expression has been used to which it was meant to apply. There does not appear to be any confusion. Where the expression “an arrear of land revenue” along is used it does not include “money recoverable as an arrear of land revenue”. Bearing in mind this distinction, section 150 of the Code, may now be read carefully. The first sub-section speaks of “an arrear of land revenue” alone. There is no mention of “money recoverable as an arrear of land revenue” in the whole of the section.” “16. Our answer to the question referred to is this :- (1) Section 150 of the M.P. Land Revenue Code applies to the recovery of “an arrears of land revenue” but not to a proceedings for the recovery of any sum of money which is “recoverable as an arrear of land revenue” within the meaning of section 155 of that Code. 16. Section 53 of the Transfer of Property Act, on which some argument was advanced, reads as under :- “53. Fraudulent transfer.-- (1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being inforce relating to insolvency. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being inforce relating to insolvency. A suit instituted by a creditor (which term includes a decree holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or, delay the creditors of the transferor, shall be instituted on behalf of or for the benefit of, all the creditors. (2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purpose of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.” 17. It was argued by the learned Counsel for the State that the appellants could not have been passed on a better right than what their vendor had. It is urged by him that once on the first transaction stamp duty was not paid solely because of exemption, and later on exemption was withdrawn the State has a right to realise it from the property itself and the property cannot be regarded as having gone into the hands of present appellants free from all encumbrances. This brings us back to the same question discussed above, namely, whether the deficiency of stamp duty is an “encumbrance” upon the property. “Encumbrance” here would mean a ‘charge”. 18. It is also canvassed on behalf of the State that the exemption of the society has been withdrawn because of a fraud practiced by the society. It was submitted that fraud, which vitiates everything, would also bring in its net the second transaction and the appellants cannot escape from the liability to pay the stamp duty on the first transaction as they derive their title from the society. 19. This submission also cannot be accepted for the following reasons. Firstly, there are no clear pleadings containing particulars of the alleged fraud, nor there are any such cogent findings. Secondly, even assuming there was a fraud by the Society, it was regarding non-payment/short-payment of stamp duty on the sale deed in its favour. 19. This submission also cannot be accepted for the following reasons. Firstly, there are no clear pleadings containing particulars of the alleged fraud, nor there are any such cogent findings. Secondly, even assuming there was a fraud by the Society, it was regarding non-payment/short-payment of stamp duty on the sale deed in its favour. The consequences of non-payment of stamp duty are provided in the Stamp Act. Passing on the liability of payment of duty or penalty to the subsequent purchaser is not among the consequences provided. Nor is the sale deed or its registration rendered a nullity due to such non-payment/short-payment. 20. Therefore, in view of the foregoing discussions, the respondent State has no authority to recover the shortage of stamp duty on the sale deed executed in favour of the Society or penalty thereore, from the subsequent purchasers, i.e., the appellants. The recovery would however be open from the Society. 21. The appeal is therefore allowed and the recovery proceedings against the appellants are quashed.