S. Malliga vs The Inspector General Of … on 2 November, 2010

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE: 02-11-2010

CORAM:

THE HONOURABLE MR. JUSTICE M. SATHYA NARAYANAN

W.P.Nos.6737 and 7281 of 2010
and
M.P.Nos.1 of 2010

W.P.No.6737 of 2010:

S. Malliga 								... Petitioner
Vs. 

1.	The Inspector General of Registration
	Chennai  4

2.	The Joint Sub Registrar No.II
	Namakkal							... Respondents 

Petition filed under Article 226 of the Constitution of India calling for the records of the 2nd respondent with reference to his letter dated 21-08-2009 quash the same and direct the 2nd respondent to register and return the final decree dated 08-12-2008 made in O.S.No.503 of 2008.

W.P.No.7281 of 2010:

K. Subramanian							... Petitioner
Vs.
1.	The Inspector General of Registration
	Chennai  4

2.	The Joint Sub Registrar No.II
	Namakkal							... Respondents

Petition filed under Article 226 of the Constitution of India praying for a writ of  certiorarified mandamus calling for the records of the second respondent with reference to his letter dated 21-08-2009 quash the same and direct the 2nd respondent to register and return the final decree dated 08-12-2008 made in O.S.No.499 of 2008.

		For petitioner 		:: Mr. R. Subramanian
		For respondents		:: Mr. S. Gopinathan, AGP 

 COMMON ORDER

1.	(i)	W.P.No.6737 of 2010:
	The petitioner in her affidavit filed in support of the writ petition averred that she had purchased an extent of 63 = cents of land in T.S.No.25 and T.S.No.26/1 in Ramapuram Pudhur, Namakkal District by means of a registered sale deed dated 31-07-2008.  After the said purchase, vendors of the petitioner had retained 9/10 share and they also denied her right                                 for partition of the one tenth share when attempts were made by her for partition.  Hence the petitioner filed O.S.No.503 of 2008 before the Court of District Munisif, Namakkal praying for partition and praying for separate possession of her one tenth share.  The suit was transferred to Lok Adalat and a final decree was passed on the basis of the compromise on 08-12-2008.  The final decree was also engrossed on requisite non-judicial stamp paper.  In terms of the final decree, the defendants/vendors had also paid a sum of Rs.3,50,000/- towards her share in the property and consequently, the petitioner was allotted the entire property.  
	The petitioner presented the final decree for registration to the second respondent on 06-04-2009. However, the second respondent had kept the document as the pending document soon after receiving the requisite fee for registration and assigned pending Document No.5 of 2009.  When the petitioner contacted the second respondent for return of the document, she was informed by letter dated 21-08-2009 that the document in question has been referred to the first respondent for his opinion regarding the nature of the document.  Aggrieved by the said communication, the petitioner has filed this writ petition.
	(ii)	W.P.No.7281 of 2010:
	According to the petitioner,  he had purchased one tenth share in an extent of two acres of land in survey No.158/1, New Survey No.158/1B5 in Vasanthapuram, Namakkal vide registered sale deed dated 30-06-2008 from Tmt. Alarmelumangai.  After the said purchase, vendors of the petitioner retained 9/10 share and also made attempts to deny his right to have a partition of his one tenth share. Hence the petitioner filed a suit in O.S.No.499 of 2008 on the file of the District Munsif, Namakkal praying for partition and separate possession of one tenth share.   The suit was referred to Lok Adalat and the same ended in a compromise and a final decree came to be passed in terms of the compromise on 08-12-2008. A sum of Rs.3,00,000/- was also paid and the petitioner was allotted the entire property.  The final decree was presented for registration by the second respondent on 06-04-2009.  However, the second respondent had kept the document pending even after receiving the requisite fee for registration and assigned pending Document No.49/2009. In reply to the petitioner's request for return of the said document, the petitioner was informed by letter dated 21-08-2009 that the document has been referred to the first respondent for his opinion regarding the nature of the document. Challenging the vires of the same, the petitioner has filed this writ petition.

	3.	Since the prayer in both the writ petitions is similar, they are taken up together for final disposal, arguments were heard and a common order is passed.

	4.	Mr. R. Subramanian, learned counsel appearing for the petitioners would submit that once the competent Civil Court had passed a decree it is not open to the first respondent to doubt the genuineness and veracity of the said decree of compromise and he is also not competent to sit over the judgment and decide whether the said instrument is a compromise decree or not.  It is further stated by the learned counsel appearing for the petitioner that the second respondent is not vested with any jurisdiction to question the nature of the document.  The learned counsel for the petitioner also draw attention of this Court to Article 45 of Schedule I of the Indian Stamp Act 1899, wherein the power is given to the Chief Controlling Authority for adjudication as to stamps.  The same is provided under Chapter 3 of Indian Stamp Act.  Section 31 speaks about adjudication as to stamps.  Section 40 deals with the Collector's power to stamp instruments impounded and Section 41 deals with instrument unduly stamped by accident.

	5.	The learned counsel for the petitioners would further submit that the forwarding of the document to the second respondent by the first respondent is not in order and that the final decree will not come under the purview of the above said provisions and therefore, the retention of the document by the respondent is highly improper and appropriate directions should be given to them to register and release the document.  

	6.	Mr. Gopinathan, learned Additional Government Pleader would submit that the respective writ petitioners under the guise of effecting the compromise, had evaded the payment of huge sum of money in the way of stamp duty and in order to find the nature of the document, the second respondent has referred the document to the first respondent.  The second respondent has done it in the interest of the revenue and in order to plug the evasion of the stamp duty.  

	7.	Heard both sides.  
	8.	Reference was made to the judgment reported in 2007(1) CTC 552 (DB)(S. Manjunathan Vs. The Joint Registrar, Ootacamund) wherein challenge was made to the order passed by the District Registrar, Ooty confirmed by Inspector General of Registration and affirmed by the learned Judge in W.P.No.16405 of 1990 holding an Indenture dated 24-04-1987 as a deed of conveyance chargeable to stamp duty as a conveyance under Article 23 of Schedule I and not as deed of release chargeable to stamp duty under Article 55 of Schedule I of the Indian Stamp Act.  In that judgment, the Division Bench of this Court while deciding the issue as to the retention of the documents had also considered the scope of tax planning as well as evasion of stamp duty and the relevant paragraph runs thus:
	"Tax planning as opposed to tax evasion has legal sanction.  What the appellants have done in this case falls within the parameters of law and the fact that they have saved some stamp duty in the process, cannot alter the character of the document.  As we have seen from the above discussion, the law relating to the distinction between a conveyance and the release has been well settled and reiterated in several Full Bench decisions.  Unfortunately, the State woke up to the position only in the year 1998 and sought to plug the hole by the Amendment Act of the year 1998.  Under such circumstances, we are of the considered view that the document in question should be treated only as a deed of release chargeable to duty under Article 55 of the Schedule I of the Indian Stamp Act, as it stood as on date of the document, namely 24.4.1987."

	9.	It is an admitted fact that the final decree in pursuant to the compromise has been passed, engrossed on the stamp paper and after paying the requisite stamp duty, the decree was presented for registration. The impugned order proceeds on the footing that the document in question has been referred to the first respondent to ascertain the nature of the document.  The steps taken by the respondents would indicate that they are mainly concerned with the evasion of stamp duty on the part of the respective writ petitioners by virtue of entering into compromise decree with the defendants.  It is the stand taken by the respondents that they are doing so in order to prevent the revenue loss to the Government. Though attempts made by the respondents appear to be  genuine under the existing provisions of the Indian Stamp Act, the respondents cannot doubt the genuineness and veracity of the document, once a final decree is validly passed by a court of competent jurisdiction.  

	10.	In such view of the matter, the respective writ petitioners are  entitled to succeed and the writ petitions stand allowed.  The second respondent is directed to consider and register the final decree passed in O.S.Nos.503 of 2008 and 499 of 2008 respectively, if the documents are otherwise in order, and register the same and return it to the respective writ petitioners.  The 2nd respondent shall do that exercise within a period of three weeks from the date of receipt of a copy of this order.  However, there will be no order as to costs.  The connected miscellaneous petitions are closed.

02-11-2010
Index:yes/no
Internet: yes/no
glp


M. SATHYANARAYANAN,J.

glp

W.P.Nos.6737 and 7281 of 2010
and
M.P.Nos.1 of 2010

02-11-2010