Allowed

Pachiammal, v. The Sub-Registrar

Madras HC15 Apr 2019WP/10574/2016

Case brief

AI extract

What is this about?

A writ petitioner challenged an order demanding deficit stamp duty and charges for a consent deed and sought release of the original document. The High Court set aside the order, held the deed did not transfer rights and thus did not invite such a demand, and directed release of the document.

What did the court decide?

The impugned order dated 01.03.2016 setting demands for deficit stamp duty/registration charges was set aside and the petitioner was directed to release the original consent deed.

Pachiammal, Vs The Sub-Registrar — Property and Title | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.04.2019

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CORAM

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THE HONOURABLE Mrs. JUSTICE PUSHPA SATHYANARAYANA

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W.P.No.10574 of 2016

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& W.M.P.No.17196 of 2016

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Pachiammal .. Petitioner

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Vs. The Sub Registrar, Sub Registrar Office, Edappadi, Salem District. .. Respondent * * * Prayer : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records relating to the impugned order dated 01.03.2016 passed by the respondent in respect of the consent deed dated 19.11.2015 registered as Doc.No.803 of 2016, quash the same and consequently directing the respondent to release the said original consent deed dated 19.11.2015 forthwith.

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- - For Petitioner : Mr.N.Manokaran For Respondents : Mr.T.M.Pappiah, Special Government Pleader

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O R D E R

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Laying challenge to the order of the respondent dated 01.03.2016 and seeking a direction to the respondent to release the consent deed dated 19.11.2015, the petitioner filed this writ petition.

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The petitioner is the purchaser of the properties measuring an extent of 1.81 acres comprised in Survey No.469/2B1B between October 2012 and March 2013, from the legal heirs of one Kunjupaiyan, which, they partitioned among themselves vide document No.1076/2011, dated 17.03.2011. Earlier there was an oral partition during December 2005 between the legal heirs of one Meiya Gounder @ Mek Gounder, which includes the father of the petitioner's vendors and the said property was his share.

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https://hcservices.ecourts.gov.in/hcservices/

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The petitioner, in order to avail loan, produced the sale deeds along with the partition deed dated 17.03.2011 to the Indian Overseas Bank, Edappadi Branch. He was asked to produce the consent letter from the other legal heirs of Meiya @ Mek Gounder. Accordingly, he obtained consent deed dated 19.11.2015 and registered it as document No.803/2016 on the file of the respondent, after paying a sum of Rs.4,225/- as registration charges and the stamp duty of Rs.15,455/-, being 1% of the market value of the property. But the respondent did not return the registered document to the petitioner, though he made requests umpteen number of times in person in this regard.

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While so, the respondent passed the order dated 01.03.2016, after a delay of more than four months, directing the petitioner to pay the deficit stamp duty of Rs.1,46,300/and the registration charges of Rs.19,125/-. Hence, the present petition impugning the said order.

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A counter-affidavit has been filed by the respondent refuting the allegations and, inter alia, stating that since the petitioner and the executants of the consent deed cannot be treated as family members within the definition contained in Article 58(a) of the Indian Stamp Act, 1899 (in short, "the Stamp Act"), clarification was sought for from the District Registrar, Salem (West) and based on the direction issued by the District Registrar under Article 55(c) of the Stamp Act, the deficit stamp duty and the registration charges were determined and hence, sought for dismissal of this writ petition.

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Learned counsel for the petitioner submitted that the respondent failed to follow the mandate provided under Section 47-A of the Registration Act, 1908 before making the impugned demand, as no notice was issued to the petitioner. It is his submission that the consent deed is neither a release deed nor a conveyance deed requiring payment of stamp duty and hence, the demand is not sustainable. It is also submitted that the respondent cannot retain the original consent deed after registering it.

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Heard the learned Special Government Pleader on behalf of the respondent and perused the materials on record.

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Admittedly, the father of the petitioner's vendors got title to the property by way of oral partition deed. The petitioner's vendors derived title over the properties by way of a registered partition deed dated 17.03.2011. According to the petitioner, when he wanted to avail the loan from the bank, he was asked to produce "consent letter" from the siblings of the petitioner's father. However, the petitioner got a "consent deed" from them and presented it for registration, upon which, the impugned order came to be passed making demand of deficit

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https://hcservices.ecourts.gov.in/hcservices/

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stamp duty and registration charges.

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The impugned order is passed treating the document as a deed of release in favour of co-owner, who is not a family member. The difference between a consent deed and release deed is that in the former there is no transfer of an interest or right to another, while in the latter there is a transfer of an interest or right to another. A release of a right can only be made in favour of a person, who had a pre-existing right or claim and by the reason of the release, the right of the releasee is enlarged. In the instant case, the legal heirs of the original owner had only given consent deed by affirming the title of the petitioner's vendors and no new right is created or conferred. In this regard, it is useful to extract the relevant portion from the consent deed :

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“nkYk; nkw;fz;l v';fspd; rnfhjuh; F";Rg;igad; mth;fspd; thhpRfspy; xUtuhd ey;yg;gd; mth;fSf;F B brl;a{ypy; gphpe;j brhj;Jf;fspy; xU gFjpiaa[k;. nkw;go F";Rg;igad; mth;fspd; kw;Wk; , uz;L thhpRfshd utp kw;Wk; unkc&; Mfpnahh;fSf;F C brl;a{ypy; gphpe;j brhj;Jf;fspy; xU gFjpiaa[k; nrh;j;J eP';fs; fpiuak; bgw;W me;j Mtzk; vlg;gho rhh;gjpthsh; mYtyfj;jpy; 1 g[j;jfk; 810-2013 vz;zhfg; gjpt[ bra;ag;gl;Ls;sJ/ nkw;go tPjk; eP';fs; fpiua';fs; bgw;wJ v';fs; midtUf;Fk; ed;whf bjhpa[k;/ ,t;thwhf eP';fs; fpiua';fs; bgw;W rh;t Rje;jpukhf mDgtpj;J tUk; brhj;Jf;fisg; bghWj;Jk;. ,ju brhj;Jf;fisg; bghWj;Jk; v';fs; midtUf;Fs; xU gjpt[ bra;ag;gl;l ghfg;gphptpidg; gj;jpuk; Vw;glhj fhuzj;jpdhYk;. v';fSf;Fk; eP';fs; fpiua';fs; bgw;w brhj;Jf;fspy; ghj;jpak; ,Uf;ff;TLk; vd jh';fs; fUJtjhYk;. eP';fs; fpiua';fs; bgw;w rkaj;jpy; eh';fs; midtUk; bjhHpy; kw;Wk; FLk;g R{H;epiy fhuzkhf btspa{hpy; trpj;J te;jjhYk; nkw;go tPjk; eP';fs; fpiua';fs; bgw;w Mtz';fspy; ifbaGj;Jk;. nuifa [k; bra;a ,aytpy;iy/ jw;nghJ eh';fs; brhe;j CUf;F te;J nrh;e;Jtpl;nlhk;/

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Mfnt eh';fs; nkw;go fpiua';fSf;F KGkdjhf rk;kjpj;J ,e;j rk;kjg;gj;jpuj;ij ,d;W c';fSf;F vGjp bfhLj;Js;nshk;/ //////”

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A plain reading of the above ipso facto makes it clear that there is no conveyance of right or title in favour of anybody and it is only the consent or no objection given for the purchase, which was made earlier by the petitioner.

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It is also well-settled that in construing a document the substance will prevail over the form as has been held by a Division Bench of this Court in S.Manjunathan and others V. The Joint Registrar, Udhagamandalam and others, 2006 (4) MLJ 1538. The parties to the consent deed did not even have a pre-existing right over the share allotted to the petitioner's vendors. Therefore, there cannot be any legal impediment in executing a consent deed.

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https://hcservices.ecourts.gov.in/hcservices/

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In view of the above, the writ petition is allowed and the order dated 01.03.2016 passed by the respondent is set aside and the respondent is directed to release the consent deed dated 19.11.2015 registered as Doc.No.803 of 2016, if he is otherwise satisfied to do so. No costs. Consequently, W.M.P.No.17196 of 2016 is closed.

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Sd/-
Assistant Registrar(CS VI)
//True Copy//
Sub Assistant Registrar
gg
To
The Sub Registrar,
Sub Registrar Office,
Edappadi,
Salem District.
+1cc to Mr.N.Manokaran, Advocate, S.R.No.37261
+1cc to the Government Pleader, S.R.No.38144
W.P.No.10574 of 2016
SSD(CO)
RRS(27/05/2019)

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https://hcservices.ecourts.gov.in/hcservices/

Pachiammal, v. The Sub-Registrar

Case brief

What is this about?

What did the court decide?

Pachiammal, v. The Sub-Registrar

Case brief

What is this about?

What did the court decide?

What the court decided

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