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2018 DIGILAW 429 (ALL)

VIMLA DEVI v. COMMISSIONER, BASTI

2018-02-19

B.AMIT STHALEKAR

body2018
JUDGMENT Hon’ble B. Amit Sthalekar, J.—Heard Sri Manish Kumar Nigam, learned counsel for the petitioners and the learned Standing Counsel for the respondents. 2. The petitioners in the writ petition are seeking quashing of the orders dated 23.5.2002 and 24.7.2002 arising out of the proceedings under the Indian Stamp Act, 1899 (hereinafter referred to as ‘the Act’). 3. Briefly stated the facts of the case are that the plot in question being plot No. 1640 area 0-1-10 situated in Village Basti Khas, Tappa-Padia, Pargana-Basti East, Tehsil Basti, District Basti under the ownership and possession of one Sri Vindhywashni Prasad, Zamindar. It is further stated that in the revenue records of the village, the name of one Surya Pal, resident of village Siyarapar, Tapa-Padia, Pargana-Basti East, Tehsil-Basti, District Basti was erroneously recorded as Class-10 Holder of the plot. The Zamindar Sri Vindhywashni Prasad sold and transferred possession of the plot in question to the petitioners through a registered sale-deed dated 14.12.1982. Another deed was executed by Surya Pal on 22.4.1999 in favour of the petitioners wherein he is stated to have acknowledged the fact that the petitioners were owners of the plot in question and the Vindhywashni Prasad was the original owner of the plot, therefore, Surya Pal surrendered his claim over the land in question in favour of the petitioners. 4. On an allegation that there was deficiency of stamp duty proceedings were initiated against the petitioners. The petitioners filed their objections but the Collector Stamp by his order dated 23.5.2002 held that the deed executed by Surya Pal was in the nature of transfer of land in favour of the petitioners and therefore, it would be treated to be a conveyance deed and accordingly, applying the rate of Rs. 2500/- per sq. mt. the market value of the property was determined at Rs. 4,74,300/- and the stamp duty was computed at Rs. 47,500/- plus registration charges Rs. 5,000/- etc. 5. The deficiency of stamp duty was computed at Rs. 47,400/- with deficiency of registration charges at Rs. 4,900/-, Rs.5/- by way of penalty and additional Rs. 4,900/- towards deficiency of documents, total Rs. 52,305/-. Aggrieved by the order dated 23.5.2002, the petitioner preferred a revision before the Commissioner, Basti Division who has dismissed the revision by his order dated 24.7.2002. 6. 47,400/- with deficiency of registration charges at Rs. 4,900/-, Rs.5/- by way of penalty and additional Rs. 4,900/- towards deficiency of documents, total Rs. 52,305/-. Aggrieved by the order dated 23.5.2002, the petitioner preferred a revision before the Commissioner, Basti Division who has dismissed the revision by his order dated 24.7.2002. 6. Sri Manish Nigam, learned counsel for the petitioner submitted that the dispute in the present case is in respect of the deed dated 22.4.1999 executed by Surya Pal in favour of the petitioners and not the sale-deed dated 14.12.1982 executed by Zamindar Vindhywashni Prasad in favour of the petitioner. He then made reference to the deed dated 22.4.1999, copy of which has been filed as Annexure-3 to the writ petition and pointed out that in the deed itself Surya Pal mentioned that it was a surrender deed and was being executed for the simple reason that by mistake his name (Surya Pal) was recorded in the revenue record as title holder of the property even though the original title holder of the property was Zamindar, Vindhyawashni Prasad. In the deed he has also stated that he is not in possession of the property in question and only due to some mistake his name has been entered in the revenue records in respect of the plot in question. The Collector, Stamp in his order dated 23.5.2002 has, however, treated the document dated 22.4.1999 is a deed of transfer covered by sub-section 10 of Section 2 of the definition under the Indian Stamp Act, 1899 and has, therefore, held that it amounts to transfer of his rights and therefore, would be chargeable to stamp duty as a conveyance and has accordingly, held the said deed to be a conveyance under Item 23 and has computed its market value and also deficiency of stamp duty, accordingly. 7. The Commissioner in his revisional order acknowledges that original sale-deed dated 14.12.1982 and surrender deed of 22.4.1999 were not executed at the same time nor by the same person but he has proceeded to hold that such surrender amounts to transfer of the interest of Surya Pal in the property in question in favour of the petitioners, therefore, it is a conveyance under Item 23. 8. I have gone through the pleadings of the parties and the documents on record. 9. 8. I have gone through the pleadings of the parties and the documents on record. 9. What is noticeable in this case is that the stamp proceedings are not in respect of the sale-deed dated 14.12.1982 executed by the Zamindar, Vindhyawashni Prasad in favour of the petitioner but rather they are in respect of the deed executed by Surya Pal on 22.4.1999 in favour of the petitioners. The nomenclature given to the deed is deed of surrender. It also recognises therein that the owner of the property was Zaminder Vindhyawashni Prasad who had executed a sale-deed in favour of the petitioners in respect of the plot in question on 14.12.1982. The document further states that Surya Pal has no connection with the said property nor is he in possession thereof but because due to some mistake his name was entered over the property in the revenue records, therefore, he was executing the deed of surrender in favour of the petitioners. The stamp authorities in their impugned orders have also nowhere recorded a finding that Surya Pal was at any stage in possession of the property nor has any specific finding been recorded that the petitioners were not in possession of the said property, even though the sale-deed in their favour had been executed by the erstwhile Zamindar Vindhyawashni Prasad. 10. Sub-section 10 of Section 2 of the Act, 1899 defines ‘Conveyance’ to include a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos, and which is not otherwise specifically provided for by Schedule I, I-A or I-B, as the case may be. Sub-section 10 of Section 2 of the Act, 1899 reads as under: “(10) ‘Conveyance’— ‘Conveyance’ includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos, and which is not otherwise specifically provided for by Schedule I, Schedule I-A or Schedule I-B, as the case may be.” 11. Thus a deed or instrument shall be treated to be a conveyance, if property therein whether movable or immovable is transferred only if, there is no specific provision in Schedule I, I-A or I-B of the Act, 1899. In the present case, Article 55 of Schedule I-B specifically relates to ‘Release’ and reads as under: Description of instrument Proper stamp duty 55. In the present case, Article 55 of Schedule I-B specifically relates to ‘Release’ and reads as under: Description of instrument Proper stamp duty 55. Release—That is to say, any instrument, not being such a release as is provided for by Section 23-A, whereby a person renounces a claim upon another person or against any specified property:— The same duty as a bond (No. 15) for amount or value as set forth in the relase. The same duty as a bond (No. 15) for Rs. 3000. (a) if the amount or value of the claim does not exceed Rs. 2500 (b) in any other case 12. Article 55 specifically speaks of an instrument not being such a release as is provided for by Section 23-A whereby a person renounces a claim upon another person or against any specified property. 13. In the present case in the deed dated 22.4.1999 executed by Surya Pal, he is not transferring the property in favour of the petitioners rather the word used is surrender particularly in the light of the fact that he acknowledges the owner of the property to be the erstwhile Zamindar Vindhyawashni Prasad and that Vindhyawashni Prasad had executed the sale-deed of the land in question in favour of the petitioners and the said Surya Pal came into picture only because his name was wrongly entered in the revenue records over the land in dispute and he specifically states that he has no concern with possession over the land in dispute. 14. The learned counsel for the petitioner has referred to a judgment of a three judge Special Bench of this Court in Smt. Balwant Kaur and others v. State of U.P. and others, AIR 1984 Allahabad 107. Para 9 thereof reads as under : “9. It is now well-settled that in order to determine the nature of an instrument, neither the nomenclature nor the language which tile parties may choose to employ in framing the document, is decisive. In each case what is decisive is the actual nature and character of the transaction intended by the executant Normally, the intention of the executant is to be gathered from the language used in the instrument Accordingly, where purpose underlying execution of the document fits in with the nature of the document as H purports to be, it would not be appropriate to treat it as an instrument of a different nature. However, where it is found that the executant could enter into the transaction specified in the document but then he chooses to describe it as an instrument of a nature which lie is not competent to execute, it will be open to the Court to ignore the said description and to determine the correct head under which the document would fall. Accordingly, in a case where the executant while executing an instrument conveying property, but describes the same as a release deed, the description given by the executant can be ignored and the document can be dealt with on the footing that it was a sale-deed. But then in a case where executant’s objective can legally be achieved either by executing a deed of conveyance or by executing a deed of release and the executant executes a document which purports to be a deed of release, it will not be correct to construe ft as a document of a nature different from what it purports to be, merely because the intention of the executant can be better achieved by executing an instrument of a different nature.” Paragraphs 17 and 19 are equally important and read as under : “17. So far as the instant case is concerned, the recitals made by the two sisters in the document dated 9th March, 1970, clearly Amount to renunciation of their interest in the properties left by their deceased father. They do not contain any stipulation where-under they seek to convey their title to their mother and brother. The two sisters were fully competent to release ‘heir undivided interest in the property in favour of their mother and brother. When their objective could be achieved merely by executing a release deed, there is no reason to think that they in fact were executing a deed of conveyance misdescribing it as a release deed. Question No. 2, therefore, has to be answered by saying that on plain interpretation, the document dated 9th March, 1970 was a deed of release and not a conveyance deed within the meaning of the Indian Stamp Act. 18........... 19. Next question that, therefore, arises for consideration is whether stamp duty payable on the document is under Clause (a) of Article 55 to be computed treating the value of the claim released by it as Rs. 18........... 19. Next question that, therefore, arises for consideration is whether stamp duty payable on the document is under Clause (a) of Article 55 to be computed treating the value of the claim released by it as Rs. 2,200/-, that is, the amount of consideration mentioned in the deed, or is it to be determined in accordance with the provision contained in Clause (b) thereof. Under Clause (a) the duty on a deed of release is to be computed in the manner provided for computation of duty on a Bond under Item No. 15 on the value of the claim released, as setforth in the deed. In the instant case while consideration for giving up of the claim by the two sisters was mentioned as Rs. 2,200/-, but such consideration cannot be said to be the value of the claim which had actually been renounced by the two executants. The deed nowhere specifies value of the claim which had actually been renounced by the two executants. Since the value of the claim renounced has not been set-forth in the release deed it is not possible to compute the stamp duty payable on the release deed under Clause (a) of Article 55. The case would thus fall under Clause (b) of Article 55 and the fixed amount of stamp duty specified therein would thus be payable. Question No. 5 is accordingly answered by saying that the document in question is liable to stamp duty under Clause (b) of Article 55 of Schedule I-B to the Indian Stamp Act.” 15. What has been held by the Special Bench in para 19 is that irrespective of what is stated in the instrument of surrender, it is always open to the Court to consider whether the deed is one of transfer of property and title or is it a simple release. In paragraph 17 the facts of the case of Smt. Balwant Kaur were being discussed and it was observed that the two sisters while executing the document dated 9.3.1970 renunciated their interest in the properties left by their deceased father. They do not contain any stipulation where under they seek to convey their title to their mother and brother. 16. In the present case also, the instrument dated 22.4.1999 does not even momentarily sugges that Surya Pal was transferring his right or title in favour of the petitioners. They do not contain any stipulation where under they seek to convey their title to their mother and brother. 16. In the present case also, the instrument dated 22.4.1999 does not even momentarily sugges that Surya Pal was transferring his right or title in favour of the petitioners. In fact he clearly stated that by some mistake of the authorities his name was mentioned in the revenue record over the property in question and he was surrendering the same in favour of the petitioners. At the same time acknowledging that the owner of the property was the erstwhile Zamindar Vindhyawashni Prasad and at the same time stating that he was not in possession of the said property and that the erstwhile owner of the property was Zamindar Vindhyawashni Prasad. It is also noteworthy that in the instrument dated 22.4.1999 also no consideration has been mentioned by which it may be argued by the State respondents that the property was being sold to the petitioners for a certain amount by way of consideration. This aspect of the matter has also been considered by the Special Bench in paragraph 19 of the judgment of Smt. Balwant Kaur (supra). As already noted above and at the cost of repetition, it may be mentioned that the stamp authorities have no where recorded a finding that Surya Pal was in possession of the property and that he was transferring the property to the petitioners. 17. For reasons aforesaid, on a conspectus of facts and the law laid down by the Special Bench, the impugned orders dated 23.5.2002 and 24.7.2002 cannot survive and are accordingly, quashed. 18. The writ petition is allowed. 19. If any amount has been deposited by the petitioners towards deficiency of stamp duty, the same shall be refunded to them within a period of two months from the date of receipt of a certified copy of this order.