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2021 DIGILAW 1514 (RAJ)

Sultana Begum v. Prem Chand

2021-08-17

MAHENDAR KUMAR GOYAL

body2021
JUDGMENT 1. These review petitions, reported to be time barred by 96 days, are accompanied by applications under Section 5 of the Limitation Act seeking condonation of delay. For the reasons stated in the applications, the same are allowed. The delay in preferring the review petitions is condoned. 2. These review petitions have been filed seeking review of the order dated 25.02.2020 passed by this Court whereby the writ petitions preferred by the review petitioner against the order dated 22.07.2019 passed by the Court of learned Additional District & Sessions Judge No.11, Jaipur Metropolitan, Jaipur whereby the applications filed by the petitioners under Section 65 of the Indian Evidence Act, 1872 were dismissed, have been dismissed. 3. Learned counsel for the petitioner, referring the agreements in question i.e., dated 20.01.1982 and 16.12.1981 (Annexures 2 and 3 respectively along with writ petitions), submitted that the recitals therein disclose the same to be in the nature of family settlement which neither required registration nor payment of stamp duty. He further submitted that even if the same are assumed to be agreements, in view of provisions of Article 5(c) of the Rajasthan Stamp Law (Adaptation) Act, 1952 (for short 'the Act of1952'), the stamp duty payable at the relevant time was Rs.2/- only; whereas, the documents were affixed with stamp duty of Rs.5/- and thus were sufficiently stamped. He submitted that in view of explanation to Article 23 of schedule 2 having been added by way of amendment which came into effect from 18.09.2019, the documents were not required to be compulsorily registrable with levy of stamp duty treating the same to be conveyance. He, therefore, prayed that the review petitions be allowed. 4. Heard the learned counsel for the petitioner and perused the record. 5. This Court has, vide order impugned in the review petition dated 25.02.2020, referring clause 8 of both the agreements, held the documents to be conveyance deed inasmuch as in each of the documents, one of co-owners has relinquished his rights in the joint property for a consideration of Rs.40,000/-. A three Judges Bench of Hon'ble Apex Court in case of Thayyil Mammo and Ors. v. Kottiath Ramunni and Ors. ( AIR 1966 SC 337 ) while interpreting the nature of a document whereby the co-owner in the property has released his rights, title and interest in favour of the releasee for valuable consideration, held as under: '8. A three Judges Bench of Hon'ble Apex Court in case of Thayyil Mammo and Ors. v. Kottiath Ramunni and Ors. ( AIR 1966 SC 337 ) while interpreting the nature of a document whereby the co-owner in the property has released his rights, title and interest in favour of the releasee for valuable consideration, held as under: '8. Exhibit B-2 was registered. It was executed for a consideration paid by defendants 1 to 5 to Baithan. It discloses an intention to transfer the kanom rights of Baithan to defendants 1 to 5; its operative words are capable of passing the title, and on its true construction, it operates as an assignment. Mr. Viswanatha Sastry suggested that Ex. B-2 was stamped as a release and not as an assignment. But the paper book does not disclose the amount of the stamp paid on it. Moreover, the nomenclature of the deed and the amount of the stamp paid on it, though relevant, are not conclusive on the question of construction. 9. In Hemendra Nath Mukerji v. Kumar Nath Roy, 12 Cal WN 478, by a registered deed called a deed of disclaimer the executants relinquished all their right, title and interest and claim in the properties in favour of the releasee upon the condition that the releasee would discharge certain debts and the executants would be under no liability to pay those debts. Though the deed was stamped only as a release and not with ad valorem stamp, Maclean, C. J. held that on its true construction it was a transfer. We think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex. B-2 clearly disclosed an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment.' The aforesaid dictum was followed by another three Judges Bench of Hon'ble Apex Court in case of Kuppuswamy Chettiar v. A.S.P.A. Arumugam Chettiar and Ors. ( AIR 1967 SC 1395 ). 6. ( AIR 1967 SC 1395 ). 6. Therefore, in view of settled principle of law, since, the recitals contained in the documents in question, unquestionably render the same to be conveyance deed transferring, creating and extinguishing rights of parties, i.e. co-owner for valuable consideration, the same could not have been treated as 'family settlement' or 'agreement'; but, conveyance requiring its registration & payment of stamp duty thereon. It is trite law that mere nomenclature of document is never determinative of its character which has to be assessed reading it in its entirety. The orders impugned herein do not suffer any error apparent on their face warranting review. Therefore, the review petitions are dismissed devoid of merit.