Refund of stamp duty on executed but unregistered sale deeds was sought beyond six months. The court held that the registration period could not extend the statutory period for seeking allowance for spoiled stamps and dismissed both writ appeals.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
WA NO. 1102 OF 2021
AGAINST THE JUDGMENT IN WP(C) 25685/2015 OF HIGH COURT OF KERALA, ERNAKULAM
APPELLANT/S:
MUHAMMED SAFIR S/O MUHAMMEDALI, THOTTIYIL HOUSE, NETHIRIMANGALAM P.O., PATTAMBI TALUK, PALAKKAD DISTRICT. BY ADVS. P.JAYARAM GIGI PAPPACHAN SARATH CHANDRAN K.B.
RESPONDENT/S:
OTHER PRESENT:
SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER FOR RESPONDENTS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2021, ALONG WITH WA.1103/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943 WA NO. 1103 OF 2021
AGAINST THE JUDGMENT IN WP(C) 24728/2015 OF HIGH COURT OF
KERALA, ERNAKULAM
APPELLANT/S:
MUHAMMED SAFIR
S/O. MUHAMMEDALI, THOTTIYIL HOUSE, NETHIRIMANGALAM P.O., PATTAMBI TALUK, PALAKKAD DISTRICT.
BY ADV P.JAYARAM GIGI PAPPACHAN
SARATH CHANDRAN K.B.
RESPONDENT/S:
OTTAPALAM-679 101.
OTHER PRESENT:
SRI.V.TEKCHAND,SENIOR GOVERNMENT PLEADER FOR RESPONDENTS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2021, ALONG WITH WA.1102/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.R.
W. A. Nos. 1102 & 1103 of 2021 -3-
J U D G M E N T
S. Manikumar, C. J.
Instant writ appeals are filed against the common judgment in W. P. (C) Nos. 24728 and 25685 of 2015 dated 11.10.2017, whereby a learned Single Judge dismissed the writ petitions.
reliefs:-
“(i) issue a writ of certiorari or other appropriate writ, direction or order quashing Exhibit P3 order.
ii) declare that the petitioner is entitled for refund of the amount paid for the purchase of stamp papers.
iii) issue a writ of mandamus or other appropriate writ, direction or order directing the 1st respondent to refund the value of the spoiled stamp/spoiled instrument legally due to the petitioner.”
the writ petitions as follows:-
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“5. I have considered the contentions advanced. Section 47 of the Kerala Stamp Act provides for refund of impressed stamps spoiled. It is stated that on an application made, within the period prescribed in Section 48, the Collector is competent to make allowance for impressed stamps spoiled. Section 47 (b) refers to the stamp on any document which is written out wholly or in part, but which is not signed or executed by any party thereto. It is therefore clear that the application for refund has to be made within the time limit specified in Section 48. Section 48 of the Kerala Stamp Act, 1959 reads as follows:
“48. Application for relief under Section 47 when to be made.
The application for relief under Section 47 shall be made within the following periods, that is to say -
(1) In the cases mentioned in clause (c) (5), within two months of the date of the instrument;
(2) in the case of a stamped paper on which no Instrument has been executed by any of the parties thereto, within six months after the stamp has been spoiled;
(3) in the case of a stamped paper in which an Instrument has been executed by any of the parties thereto, within six months after the date of the instrument or, if it is not dated, within six months after execution thereof by the person by whom it was first or alone executed;
Provided that (a) when the spoiled instrument has been for sufficient reasons sent out of the State, the application may be made within six months after it has been received back in the State.
(b) when, from unavoidable circumstances, any instrument for which another instrument has been substituted, cannot be given up to be cancelled within the aforesaid period, the application may be made
W. A. Nos. 1102 & 1103 of 2021 -5-
within six months after the date of execution of the substituted instrument.”
This is a specific provision relating to the time limit within which the request for refund is to be made. Section 48(3) specifically states that in the case of a stamped paper in which an instrument has been executed by any of the parties thereto, the application for refund is to be made within six months after the date of instrument or if the instrument is not dated, within six months after execution thereof by the person by whom it was first or alone executed. The contention raised by the petitioner that the stamps become spoiled only on the expiry of four months after the date of execution cannot be accepted. In view of the specific provision contained in Section 48(3) that the application has to be filed within the time specified therein, I am of the opinion that the stand taken in the impugned orders cannot be found fault with. The writ petitions therefore fail and the same are accordingly dismissed.”
of stamp paid on the documents, executed for sale of properties in different survey numbers situated in Vallapuzha Village, Palakkad District, and in the abovesaid circumstances, suffice to incorporate the
facts leading to the filing of the writ appeals from one such case (W. A. No. 1103 of 2021).
The appellant is the petitioner in both the writ petitions.
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According to the appellant, he entered into an agreement for sale for purchase of property bearing survey No. 200/1, re-survey No. 187/1 situated in Vallapuzha Village, Palakkad District. The consideration fixed was Rs. 15,50,000/-. For execution of the sale deed, stamp papers worth Rs. 1,08,500/- were purchased by the appellant from Sub Treasury, Pattambi. The purchase of the stamp papers was on 03.05.2012. The sale deed was, in fact, prepared and executed on 04.05.2012 on the same stamp papers. The parties have affixed signatures in the deed. But the appellant was unable to organize the balance consideration to be paid before the registration of the deed and the assignment deed could not be registered. Ultimately, the conveyance fizzled out and the stamp papers have become spoiled/useless.
Appellant has contended that the registration did not take place not due to any willful laches or failure on the part of the petitioner. Appellant is employed abroad. He was not able to pay the balance sale consideration in time due to paucity of funds. In this unforeseen scenario, the appellant made an application for refund of the value of the stamp papers purchased. The application was made on 22.01.2013.
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Referring to Sections 47 and 48 of the Kerala Stamp Act, 1959, the 1st respondent has rejected the application on the ground that the application was submitted out of time.
Appellant has further contended that the limitation provided under the Kerala Stamp Act, 1959, is not an inflexible rule and the limitation starts to run from the date on which the stamp papers become spoiled. In the instant case, 4 months after 04.05.2012, the date of execution of the sale deed. This is in view of the operation of Section 23 of the Registration Act, 1908, providing for a time of four months from the date of execution to register a document. Thus, the stamp papers became actually spoiled only on 04.09.2012. Consequently, the limitation period of six months started to run from 04.09.2012 alone. Cause of action for refund arose only on 04.09.2012 as sale is compulsorily to be registered. Therefore, according to the appellant, the application made for refund by him was perfectly in time.
Appellant has also contended that denial of refund causes unjust enrichment in favour of the State as the rules of construction specify strict interpretation in taxing statutes.
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rejecting the request of the appellant for refund of stamp duty, is
impugned, suffice to extract Ext. P3 dated 26.11.2014 impugned in W. P. (C) No. 1103 of 2021.
“ PROCEEDINGS BEFORE THE OFFICE OF SUB COLLECTOR, OTTAPALAM
(Present: P.B. Nooh, IAS)
Sub: Stamp Act- Application for re-fund of amount of unused stamp paper Regarding order
L.D.S.7230/2014/K Date: 26.11.2014
Ref: 1) Application submitted by Muhammed Safir, S/o. Muhammadalli, Nethirimangalam.
Mr. Muhammed Safir, S/o. Muhammadali, Nethirimangalam, Pattambi submitted an application for re-fund of the value of unused stamp paper of Rs. 1,08,500/- (One lac eight thousand five hundred) purchased in his name from Sub Treasury, Pattambi.
On the above subject an enquiry was conducted through Tahasildar, Ottapalam and from the report submitted by him it become clear that the applicant purchased the stamp paper on 03.05.2012 and application for re-fund was submitted on
W. A. Nos. 1102 & 1103 of 2021 -9-
25.01.2013. The application was submitted after six months from the date of purchase of stamp paper, which is the maxim time limit to submit application for re-fund as per Section 47, 48 of the Kerala Stamp Act, 1959 and hence it can be rejected. The original stamp papers and the report of the Tahasildar Pattambi is enclosed.
ORDER
As the application for re-fund of value of stamp paper was submitted by Mr. Muhammed Safir, S/o. Muhammadali, Nethirimangalam, Pattambi after the lapse of six months, the maxim time limit prescribed for application for re-fund as per Section 47, 48 of the Kerala Stamp Act, 1959, the same is rejected by this order.
Sd/
Sub Collector, Ottapalam
To Muhammed Safir S/o.Muhammadali Thodiyil Nethiri Mangalam Pattambi (With original stamp paper of Rs. 1,08,500)”
W. A. Nos. 1102 & 1103 of 2021 -10-
refund of spoiled stamps.
survey numbers, place of the properties, date of purchase of stamp papers, date of execution of the sale deed, are tabulated as hereunder:-
| Writ Appeal Nos. |
Survey/Re- survey No. |
Place of properties |
Date of purchase of stamp papers |
Date of execution of sale deed |
|---|---|---|---|---|
| W.A. No. 1102 of 2021 |
Survey No. 171/6 Re-survey No. 174/8 |
Vallapuzha Village, Palakkad District |
03.05.2012 | 04.05.2012 |
| W. A. No. 1103 of 2021 |
Survey No. 200/1 Re-survey No. 187/1 |
Vallapuzha Village, Palakkad District |
03.05.2012 | 04.05.2012 |
W. A. Nos. 1102 & 1103 of 2021 -11-
Act, we deem it fit to extract the statutory provisions:-
“ 23. Time for presenting documents . Subject to the provisions contained in Sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:
Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.
47. Allowance for spoiled stamps. - Subject to such rules as may be made by the Government as to the evidence to be required, or the enquiry to be made, the Collector may, on application made, within the period prescribed in Section 48, and if he is satisfied as to the facts, make allowance for impressed stamps [or e-stamps] spoiled in the cases hereinafter mentioned, namely:
(a) the stamp on any paper inadvertently and undersignedly spoiled, obliterated or by error in writing or any other means rendered unfit for the purpose intended before any instrument written thereon is executed by any person;
(b) the stamp on any document which is written out wholly or in part, but which is not signed or executed by any party thereto;
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W. A. Nos. 1102 & 1103 of 2021 -13-
Provided that, in the case of an executed instrument, no legal proceeding has been commenced in which the instrument could or would have been given or offered in evidence and that the instrument is given up to be cancelled.
48. Application for relief under Section 47 when to be made .- The application for relief under Section 47 shall be made within the following periods, that is to say-
Provided that
(a) when the spoiled instrument has been for sufficient reasons sent out of the State, the application may be made within six months after it has been received back in the State.
(b) when, from unavoidable circumstances, any instrument for which another instrument has been substituted, cannot be given up to be cancelled within the aforesaid period, the
W. A. Nos. 1102 & 1103 of 2021 -14-
application may be made within six months after the date of execution of the substituted instrument.”
time from the date of execution. Bare reading of Section 23, makes it clear that no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of execution.
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months after execution thereof by the person by whom it was first or alone executed.
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Section 48(3) of the Kerala Stamp Act, 1959, cannot be made from the date of registration of the document.
(i) In Satheedevi v. Prasanna reported in (2010) 5 SCC 622, the Hon'ble Supreme Court held as follows:
“12. Before proceeding further, we may notice two well-recognised rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the
W. A. Nos. 1102 & 1103 of 2021 -17-
Act can legitimately arise--Kanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907]
(ii) In Sri Jeyaram Educational Trust & Ors., v. A.G.Syed Mohideen & Ors. [2010 CIJ 273 SC (1)], it was held that,
"6. It is now well settled that a provision of a statute should have to be read as it is, in a natural manner, plain and straight, without adding, substituting or omitting any words. While doing so, the words used in the provision should be assigned and ascribed their natural, ordinary or popular meaning. Only when such plain and straight reading, or ascribing the natural and normal meaning to the words on such reading, leads to ambiguity, vagueness, uncertainty, or absurdity which were not obviously intended by the Legislature or the Lawmaker, a court should open its interpretation tool kit containing the settled rules of construction and interpretation, to arrive at the true meaning of the provision. While using the tools of interpretation, the court should remember that it is not the author of the Statute who is empowered to amend, substitute or delete, so as to change the structure and contents. A court as an interpreter cannot alter or amend the law. It can only interpret the provision, to make it meaningful and workable so as to achieve the legislative object, when there is vagueness, ambiguity or absurdity. The purpose of interpretation is not to make a provision what the Judge thinks it should be, but to make it what the legislature intended it to be."
(iii) In Delhi Airtech Services (P) Ltd. v. State of U.P. ,
W. A. Nos. 1102 & 1103 of 2021 -18-
reported in (2011) 9 SCC 354, the Hon'ble Apex Court, while dealing with a provision under Section 17(3-A) of the Act, held as under:
“54. .........................Therefore, the provision of Section 17(3-A) cannot be viewed in isolation as it is an intrinsic and mandatory step in exercising special powers in cases of emergency. Sections 17(1) and 17(2) and 17(3-A) must be read together. Sections 17(1) and 17(2) cannot be worked out in isolation.
xx xxx xxxxx
(iv) In Noida Entrepreneurs Association v. Noida reported
W. A. Nos. 1102 & 1103 of 2021 -19-
in (2011) 6 SCC 508, at paragraphs 22 and 23, the Hon'ble Supreme Court held as under:
“22. It is a settled proposition of law that whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud", which means" "whenever a thing is prohibited, it is prohibited whether done directly or indirectly". (See: Swantraj & Ors. v. State of Maharashtra , AIR 1974 SC 517; Commissioner of Central Excise, Pondicherry v. ACER India Ltd. , (2004) 8 SCC 173; and Sant Lal Gupta & Ors., v. Modern Co-operative Group Housing Society Ltd., & Ors. , JT (2010) 11 SC 273).
“23. In Jagir Singh v. Ranbir Singh & Anr. AIR 1979 SC 381, this Court has observed that an authority cannot be permitted to evade a law by "shift or contrivance." While deciding the said case, the Court placed reliance on the judgment in Fox v. Bishop of Chester , (1824) 2 B &C 635, wherein it was observed as under:
"To carry out effectually the object of a statute, it must be construed as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined."
(v) In Mukund Dewangan v. Oriental Insurance Company Ltd. [(2017) 14 SCC 663], the Hon'ble Supreme Court has observed that the principle that statute must be read as a whole is equally applicable to different parts of same section. Paras 35, 36 & 38 of the said decision are quoted below:
"35. The conclusion that the language used by the legislature is plain or ambiguous can only be arrived at by studying the statute as a whole. Every word and expression which the legislature
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uses has to be given its proper and effective meaning, as the legislature uses no expression without purpose and meaning. The principle that the statute must be read as a whole is equally applicable to different parts of the same section. The section must be construed as a whole whether or not one of the parts is a saving clause or a proviso, it is not permissible to omit any part of it, the whole section should be read together as held in State of Bihar v. Hira Lal Kejriwal [AIR 1960 SC 1107].
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construction as held in Hansraj Gupta v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd. [AIR 1933 PC 63], Kamalaranjan Roy v. Secy., of State [AIR 1938 PC 281] and Karnataka State Financial Corporation v. N. Narasimahaiah [(2008) 5 SCC 176]. The Court cannot supply casus omissus."
Courts can add or delete or substitute any word to a statute or section:-
(i) In CIT v. Badhraja and Company reported in 1994 Supp (1) SCC 280, the Hon'ble Apex Court held that an object oriented approach, however, cannot be carried to the extent of doing violence to the plain meaning of the Section used by rewriting the Section or substituting the words in the place of actual words used by the legislature.
(ii) In Dadi Jagannadham v. Jammulu Ramulu reported in (2001) 7 SCC 71, the Hon'ble Supreme Court held as under:
“13. We have considered the submissions made by the parties. The settled principles of interpretation are that the court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the
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legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.”
(iii) In Institute of C.A. of India v. Ajit Kumar Iddya reported in AIR 2003 Kant. 187, the Karnataka High Court held thus:
“So far as the cardinal law of interpretation is concerned, it is settled that if the language is simple and unambiguous, it is to be read with the clear intention of the legislation. Otherwise also, any addition/subtraction of a word is not permissible. In other words, it is not proper to use a sense, which is different from what the word used ordinarily conveys. The duty of the Court is not to fill up the gap by stretching a word used. It is also settled that a provision is to be read as a whole and while interpreting, the intention and object of the legislation have to be looked upon. However, each case depends upon the facts of its own.”
(iv) In Sanjay Singh v. U.P. Public Service Commission reported in (2007) 3 SCC 720, the Hon'ble Supreme Court held thus:
“It is well settled that courts will not add words to a statute or read into the statute words not in it. Even if the courts come to the conclusion that there is any omission in the words used, it cannot make up the deficiency, where the wording as it exists is clear and unambiguous. While the courts can adopt a construction which will carry out the obvious intention of the legislative or the rulemaking authority, it cannot set at naught the legislative intent clearly expressed in a statute or the rules.”
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(v) In Phool Patti v. Ram Singh reported in (2009) 13 SCC 22, the Hon'ble Supreme Court held thus:
“9. It is a well-settled principle of interpretation that the court cannot add words to the statute or change its language, particularly when on a plain reading the meaning seems to be clear.”
In the light of the above discussion and decisions, we are of the
view that there is no error in the impugned judgment, warranting interference.
Accordingly, writ appeals are dismissed.
Sd/-
S. MANIKUMAR CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
1 issue framed by the court
Can the four-month registration period under Section 23 of the Registration Act extend the six-month period for seeking spoiled-stamp allowance under Section 48(3) of the Kerala Stamp Act?
Colour shows how this judgement treated each authority
Satheedevi v. PrasannaRelied on¶151
(2010) 5 SCC 622 · Who else cites this
Sri Jeyaram Educational Trust & Ors., v. A.G.Syed Mohideen & Ors.Relied on¶156
[2010 CIJ 273 SC (1)]
Delhi Airtech Services (P) Ltd. v. State of U.P.Relied on¶160
(2011) 9 SCC 354 · Who else cites this
Noida Entrepreneurs Association v. NoidaRelied on¶167
(2011) 6 SCC 508 · Who else cites this
Mukund Dewangan v. Oriental Insurance Company Ltd.Relied on¶171
[(2017) 14 SCC 663] · Who else cites this
CIT v. Badhraja and CompanyRelied on¶181
1994 Supp (1) SCC 280 · Who else cites this
Dadi Jagannadham v. Jammulu RamuluRelied on¶182
(2001) 7 SCC 71 · Who else cites this
Institute of C.A. of India v. Ajit Kumar IddyaRelied on¶186
AIR 2003 Kant. 187 · Who else cites this
Sanjay Singh v. U.P. Public Service CommissionRelied on¶188
(2007) 3 SCC 720 · Who else cites this
Phool Patti v. Ram SinghRelied on¶191
(2009) 13 SCC 22 · Who else cites this
3 provisions across 2 enactments
MUHAMMED SAFIR
THE TAHSILDAR, OTTAPALAM
THE DISTRICT COLLECTOR, PALAKKAD
THE SUB COLLECTOR, OTTAPALAM
STATE OF KERALA
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
