IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33503 of 2008(L)
1. M.P.RAJESWARAN NAIR, S/O.PADMANABHA
... Petitioner
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
For Petitioner :SRI.K.B.PRADEEP
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :09/06/2009
O R D E R
C.R.
S. SIRI JAGAN, J.
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W.P.(C)No. 33503 OF 2008
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Dated this the 9th day of June, 2009
JUDGMENT
The petitioner got registered Ext.P1 partition deed with the
appropriate Sub Registrar’s office, which was executed on 25.01.08.
That document was produced before the Munsiff’s Court,
Thiruvananthapuram in OS No.872/06, wherein a question arose as
to whether that document was properly stamped. To get the stamp
duty payable on that document adjudicated under Section 31 of the
Kerala Stamp Act, 1959, the petitioner submitted an application
dated 03.10.08 before the respondent. The respondent refused to
accept the same on the ground that the document was produced
after the expiry of one month from the date of its execution, which is
the period of limitation prescribed under Section 32 of the Act.
2. According to the petitioner, Sections 31 and 32 deal with
two separate functions and the second function comes only after the
first is completed. Section 31 relates only to adjudication of proper
stamp duty payable on an instrument. No limitation is prescribed for
the same. Only if, after adjudication of the proper stamp duty
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payable on the instrument, the applicant seeks endorsement under
Section 32, the limitation prescribed under Section 32 would come
into play is the contention of the petitioner. Petitioner therefore
submits that the respondent is duty bound to accept the application
and adjudicate the stamp duty payable on the instrument under
Section 31 and seeks a direction in that regard.
3. Although no counter affidavit has been filed, the learned
Government Pleader contends that Sections 31 and 32 have to be
read and applied together as an integrated procedure and the
limitation prescribed under the proviso to Section 32, therefore,
applies to Section 31 also. Hence, only if the document is produced
within the period of one month from the date of its execution,
prescribed under the proviso to Section 32, the Collector is bound to
accept the application and exercise his powers under Section 31, is
the contention raised by the learned Government Pleader.
4. I have considered the rival contentions in detail. Since the
issue involved in this writ petition relates to the interpretation of
Sections 31 and 32 of the Kerala Stamp Act, I shall extract both
Sections here:
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“31. Adjudication as to proper stamp:- (1) When any
instrument, whether executed or not and whether previously
stamped or not is brought to the Collector, and the person bringing
it applies to have the opinion of that officer as to the duty, if any,
with which it is chargeable, and pays a fee of such amount (not
exceeding ten rupees and not less than one rupee) as the Collector
may in each case direct, the Collector shall determine the duty, if
any, with which, in his judgment, the instrument is chargeable.
(2) For this purpose the Collector may require to be
furnished with an abstract of the instrument, and also with such
affidavit or other evidence as he may deem necessary to prove that
all the facts and circumstances affecting the chargeability of the
instrument with duty, or the amount of the duty with which it is
chargeable, are fully and truly set forth therein, and may refuse to
proceed upon any such application, until such abstract and
evidence have been furnished accordingly:
Provided that-
(a) no evidence furnished in pursuance of this section shall be
used against any person in any civil proceeding except in any
enquiry as to the duty with which the instrument to which it
relates is chargeable; and
(b) every person by whom any such evidence is furnished,
shall, on payment of the full duty with which the instrument to
which it relates, is chargeable, be relieved from any penalty
which he may have incurred under this Act by reason of the
omission to state truly in such instrument any of the fact.
32. Certificate by collector.- (1) when an instrument brought to the
Collector under Section 31, is in his opinion, one of a description
chargeable with duty, and
(a) the Collector determines that it is already fully stamped, or
(b) the duty determined by the Collector under Section 31, or
such a sum as, with duty already paid in respect of the
instrument, is equal to the duty so determined, has been
paid, the Collector shall certify by endorsement on such
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instrument that the full duty (stating the amount) with which it
is chargeable has been paid.
(2) When such instrument is, in his opinion, not chargeable with
duty, the Collector shall certify in manner aforesaid that such
instrument is not so chargeable.
(3) Any instrument upon which an endorsement has been made
under this section shall be deemed to be duly stamped or not
chargeable with duty, as the case may be; and, if chargeable
with duty, shall be receivable in evidence or otherwise, and may
be acted upon and registered as if it had been originally duty
stamped:
Provided that nothing in this section shall authorize the Collector to
endorse-
(a) any instrument executed or first executed in India and
brought to him after the expiration of one month from the date of
its execution, or first execution, as the case may be;
(b) any instrument executed or first executed out of India and
brought to him after the expiration of three months after it has
been first received in the State; or
(c) any instrument chargeable with the duty of twenty paise or
less than twenty paise when brought to him, after the execution
thereof on paper not duly stamped. ”
5. As is clear from the wordings in the two sections, Section 31
relates to adjudication of stamp duty payable on an instrument
simpliciter. Section 32 goes a further step after adjudication under
Section 31 of the proper stamp duty payable providing that after
adjudication, if the applicant wants an endorsement as provided in
Section 32, then only the limitation prescribed under the proviso to
Section 32 becomes applicable. In other words, if after the
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adjudication of the stamp duty payable on an instrument, the
applicant does not want an endorsement as provided under Section
32, the application of Section 32 does not arise at all. That being so,
Sections 31 and 32 are distinct and separate and not inter-
dependent. Consequently, the limitation prescribed under the
proviso to Section 32 does not apply to adjudication as to proper
stamp duty under Section 31. But, if the Collector on adjudication
under Section 31 finds that there is deficit in stamp duty payable on
that instrument and the document had been presented beyond one
month from the date of its execution, naturally the Collector cannot
make the endorsement even if the petitioner pays the deficit stamp
duty and the Collector is bound to proceed under Section 33, which
is the only consequence of bringing the instrument for adjudication of
proper stamp duty after expiry of one month from the date of its
execution.
6. This is all the more so, since under Section 31 an
unexecuted document can also be brought for adjudication. The
limitation prescribed under proviso to Section 32 applies only in
respect of documents brought after the expiry of one month from the
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date of its execution. Therefore for attracting the limitation under the
proviso to Section 32, the document has to be one which has been
executed. That itself shows that the two sections are not
interdependent. Further, Section 32 becomes applicable only after
the Collector determines either that the instrument is fully stamped or
stamp duty is payable or the instrument is not chargeable with duty at
all. Therefore the question of application of Section 32 arises only
after adjudication under Section 31. Further if the limitation under the
proviso to Section 32 is held to be applicable to Section 31 also, then
even if an instrument is properly stamped and it is disputed after one
month from its execution, it would become impossible for a person to
get an adjudication as to the proper stamp duty by the Collector,
which cannot be the intention of the law maker while incorporating
the limitation in the proviso to Section 32. This is further evident from
the language of the proviso. The words “nothing in this Section shall
authorise the Collector to endorse” puts an embargo only on the
endorsement and not on the adjudication under Section 31.
Therefore clearly the limitation prescribed under the proviso to
Section 32 is not applicable to adjudication of the proper stamp duty
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under Section 31.
7. I am supported in this view by a decision of the Supreme
Court in Government of Uttar Pradesh and others v. Raja
Mohammed Amir Ahmad Khan [AIR 1961 SC 787] dealing with
exactly identical provisions in the Indian Stamp Act 1899, as also a
Full Bench decision of this Court in The Secretary to Government
v. The Gwalior Rayon Silk [1971 KLJ 309] dealing with the same
provisions as in this case. The learned counsel for the petitioner
would refer to the decision of the Madras High court in Sethuraman
v. Ramanathan [AIR (33) 1946 Madras 437] also dealing with
Section 31 and 32 of the Indian Stamp Act, which are in pari materia.
In Raja Mohammed Amir Ahmad Khan`s case, in paragraph 5, the
Supreme Court held thus:
“5. After an inordinately long delay, the Collector determined the
amount of duty payable and impounded the document. Power toimpound is given in S.33 of the Act. Under that section any person
who is a Judge or is in-charge of a public office before whom an
instrument chargeable with duty is produced or comes in the
performance of his functions is required to impound the instrument
if it appears to him not to be duly stamped. The question is does
this power of impounding arise in the present case ? The
instrument in dispute was not produced as piece of evidence nor
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-:8:-for its being acted upon, e.g., registration, nor for endorsement as
under S.32 of the Stamp Act but was merely brought before the
Collector for seeking his advise as to what the proper duty would
be. The words “every person … before whom any instrument … is
produced or comes in the performance of his functions” refer firstly
to production before judicial or other officers performing judicial
functions as evidence of any fact to be proved and secondly refer
to other officers who have to perform any function in regard to
those instruments when they come before them, e.g, registration.
They do not extend to the determination of the question as to what
the duty payable is. They do not cover the acts which fall within
the scope of S.31, because that section is complete by itself and it
ends by saying that the Collector shall determine the duty with
which, in his judgment, the instrument is chargeable, if it is
chargeable at all. Section 31 does not postulate anything further
to be done by the Collector. It was conceded that if the instrument
is unexeucted, i.e., not signed and the opinion of the Collector is
sought, he has to give his opinion and return it with his opinion to
the person seeking his opinion. The language in regard to
executed and unstamped documents is no different and the
powers and duties of the Collector in regard to those instruments
are the same, that is, when he is asked to give his opinion, he has
to determine the duty with which, in his judgment the instrument is
chargeable & there his duties & powers in regard to that matter
end. Then follows S.32. Under that section the Collector has to
certify by endorsement on the instrument brought to him under
S.31 that fully duty has been paid, if the instrument is duly
stamped, or it is unstamped and the duty made up, or it is not
chargeable to duty. Under that section the endorsement can be
made only if the instrument is presented within a month of its
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execution. But what happens when the instrument has been
executed more than a month before its being brought before the
Collector ? Section 31 places no limitation in regard to the time
and thee is no reason why any time limit should be imposed in
regard to seeking of opinion as to the duty payable.”
(emphasis supplied)
8. In The Gwalior Rayon Silk’s case the Full Bench of this
Court held thus:
“9. If any case whatsoever arising under the Act would come within
the scope of a reference under sub-section (1) of section 55, thatwould lead to difficult, indeed impossible, results. Supposing a
Collector were to decide that proper stamp duty has been paid in
respect of an instrument, whereas in fact it has not, or that the
instrument is not chargeable with duty whereas it is, and to certify
accordingly by endorsement thereon under sub-section (2) of
section 32. Then, under sub-section (3) of the section, the
instrument shall be deemed to be duly stamped or not chargeable
with duty, as the case may be, and may be acted upon accordingly.
Now, if a case wrongly decided under section 31 in favour of the
Revenue is a case coming within the scope of sub section (1) of
section 55, a case wrongly decided in favour of the citizen must also
be such a case. In such a case, namely, a case wrongly decided in
favour of the citizen, what is the Government to do under sub-
section (2) of section 57 conformably to the judgment the High Court
may deliver in pursuance of a reference made to it ? Is the
Government to decide the case afresh, under section 31 or send it
to the Collector for making a fresh decision ? There is no provision
in the Act that enables it to do so and even if it did so what purpose
would that serve ? The certificate endorsed by the Collector under
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Section 32 can neither be recalled nor cancelled, for the deeming
provisions in sub-section (3) of section 32 is absolute and is not
made subject to any such fresh adjudication. And even if the
certificate could be cancelled, in most cases, it would be too late to
serve any purpose since the certificate would already have served
its purpose and the instrument would have been acted upon.
Surely, it cannot be that its reception in evidence, its registration and
such other instances of its being acted upon, can be recalled or are
rendered null and void. It must be remembered that section 31
places no obligation on the citizen to pay the stamp duty adjudged
by the Collector. It is only if he wants the certificate under section
32 that he need pay the stamp duty; else, he can decline to pay it
and face whatever consequences might flow if, in fact, the
instrument is not sufficiently stamped. How then, on the fresh
adjudication being made, will be stamp duty be collected?”
(emphasis supplied)
9. Since the Madras decision interpreting identical Sections in
the Indian Stamp Act, 1899, deals further with the consequences of
production for adjudication under Section 31 after one month, with
which view I respectfully agree, I shall extract the relevant portion of
that judgment in Sethuraman’s case(supra) also.
“15. The expression ‘duly stamped’ is defined in S.2(11) as
meaning that the instrument bears an adhesive or impressed stampof no less than the proper amount and that such stamp has been
affixed or used in accordance with the law for the time being in
force in British India. Mr. Sampath Aiyangar has raised a number
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-:11:-of questions as to the interpretation of these provisions with a view
to show that S.26 applies to the case notwithstanding the
Collector’s certificate endorsed on Ext.P1 and precludes the Court
from passing a decree for any sum in excess of Rs.10,000/-. He
argues that the Collector has no jurisdiction to entertain the
respondent’s application for adjudication of the proper stamp duty
for Ext.P1 under S.31, as the document was brought to him more
than six years after its execution and that the certificate endorsed
by him on the bond was void and inoperative. He relies upon the
proviso to S.32 which requires that the instrument on which an
endorsement of the Collector’s adjudication is sought should be
brought within on month after its execution. It is said that Ss.31
and 32 contained in Chap.III form one integrated procedure for
adjudication as to stamps and that the time limit referred to in
proviso (a) to S.32 governs applications made under S.31. We are
unable to agree with this view. Section 31 provides no time limit for
an application to the Collector for adjudication as to the proper
stamp duty payable in respect of an instrument. There is nothing in
the section to prevent a person from resorting to the Collector for
an adjudication as to the proper stamp even after the expiry of one
month from the date of its execution. If the instrument is brought to
the Collector within one month of its execution, the applicant would
be entitled to have the Collector’s certificate endorsed on the
instrument on payment of the deficit duty, if any; but without having
to pay any penalty. But if he seeks the Collector’s adjudication
beyond the time limit specified in S.32, the Collector has, under
S.33, to impound the instrument and proceed under S.40 to decide
whether the instrument is duly stamped and to require the payment
of the additional duty chargeable in respect of the instrument
together with the prescribed penalty in case he is of opinion that it
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-:12:-is not duly stamped. On payment of such duty and penalty a
certificate that the proper duty and penalty have been paid has to
be endorsed under S.42 on the instrument which becomes
thereupon admissible in evidence and may be acted upon as if it
had been duly stamped. It is under this procedure that the
Collector must be taken to have dealt with Ext.P1, for it is significant
that he levied a penalty which he had no power to do under S.32.
We are accordingly of opinion that the Collector had jurisdiction to
adjudicate as to the proper stamp duty payable in respect of Ext.P1
although it was not presented within one month of its execution and
that, as a result of the certificate endorsed by him on the bond, it
can be acted upon as if it had been duly stamped.”
(emphasis supplied)
10. As held in that judgment if an executed instrument is
produced for adjudication as to proper stamp under Section 31, after
one month of its execution, the other consequences applicable to
production of an insufficiently stamped instrument before a person in
charge of a public office under other provisions of the Kerala Stamp
Act would necessarily follow and after adjudication of the proper
stamp, if the Collector finds that the same is insufficiently stamped he
has to proceed further against that instrument under those
provisions. In other words, if an executed instrument is produced
before the Collector under Section 31, within one month, even if the
Collector finds that the instrument is insufficiently stamped, the
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-:13:-instrument would not attract penalty, and the Collector shall make the
endorsement under Section 32, if the party pays the deficit stamp
whereas if it is produced after one month, it would, and the Collector
cannot make the endorsement which is the effect of the limitation
prescribed under the proviso to Section 32, instead the Collector has
to, after adjudication of the proper stamp, proceed either under
Sections 33 and 39 read with Section 41 or under Section 40 read
with Section 41.
11. From the above it is abundantly clear that, an application
for adjudication of proper stamp duty under Section 31 cannot be
refused to be accepted on the ground of limitation prescribed under
the proviso to Section 32. In the above circumstances, this writ
petition is allowed. The respondent is directed to accept the
application for adjudication of proper stamp duty on Ext.P1 document
submitted by the petitioner under Section 31 of the Kerala Stamp Act
and to proceed to adjudicate on the proper stamp duty payable on
the same. Petitioner shall re-present the application with the original
of Ext.P1 document within two weeks from today. The respondent
shall adjudicate the proper stamp duty payable on the same under
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Section 31 and communicate his opinion to the petitioner within two
months from the date of receipt of the same. However, I make it
clear that, since admittedly the document has been submitted after
expiry of one month from the date of its execution, if the Collector
finds that the stamp duty paid is not sufficient, then all consequences
flowing from production of an insufficiently stamped instrument shall
be applicable to Ext.P1 document and the Collector shall proceed
accordingly either under Sections 33 and 39 read with Section 41, or
under Section 40 read with Section 41.
S. SIRI JAGAN, JUDGE
ttb