Dismissed

D.Kalavathi, v. The Inspector General of

Madras HC11 Jul 2023WP/11828/2015

Case brief

AI extract

What is this about?

In a writ petition, the High Court rejected the petitioner's claim that a Sammatha Pathiram confirming title without transferring new rights is not liable for stamp duty. The bench held that by extinguishing rights and recording facts in favour of the petitioner, the document constitutes an instrument under the Indian Stamp Act, 1989. Consequently, the writ petition was dismissed.

What did the court decide?

Petitioner to pay stamp duty as claimed; authority shall release document after following procedures under Registration Act.

D.Kalavathi, Vs The Inspector General of — Property and Title | Madras HC (2023)

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W.P.No.11828 of 2015

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 11.07.2023

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CORAM

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THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

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W.P.No.11828 of 2015

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D.Kalavathi

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...Petitioner

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1.The Inspector General of Registration cum Chief Controlling Revenue Authority, Kamarajar Salai, Mylapore, Chennai – 4.

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2.The District Registrar, Chidambaram, O/o. The District Registrar, Lalkhan Street, Chidambaram – 608 001.

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3.The Sub Registrar, Parangipettai, O/o.The Sub Registrar, Parangipettai Post, Chidambaram Taluk, Cuddalore District.

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4.R.Masilamani

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..Respondents

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Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus calling for the records of the first respondent with reference to the proceedings No.43639/P1/2014 dated 23.02.2015 quash the same and direct the respondents to register and release the document dated 06.12.2013 bearing Document No.P8/2013 on the file

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W.P.No.11828 of 2015

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of the third respondent without demanding any further stamp duty or registration charges.

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For Petitioner : Mr.W.M.Abdul Majeed for M/s.G.Sumitra For Respondents 1 to 3 : Mr.D.Ravichander, Special Government Pleader For Respondent 4 : No appearance

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ORDER

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The Writ on hand has been instituted challenging the proceedings of

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the first respondent dated 23.02.2015 and to direct the respondents to register and release the document dated 06.12.2013 bearing document No.P8/2013.

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The petitioner states that her mother purchased the subject property described in the present writ petition. The mother of the writ petitioner died on 24.12.1998. One R.Kannan who is the third party, fraudulently claimed himself as the Power Agent of the deceased mother of the petitioner and executed the sale deed in favour of the fourth respondent on 01.08.2005. Thus, the petitioner lodged a complaint with the Land Grabbing Cell on

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25.06.2012. Enquiry was conducted. The fourth respondent agreed to nullify the sale deed dated 01.08.2005 and accordingly, executed “Sammatha Pathiram”. The District Registrar directed the petitioner to pay a sum of Rs.55,276/- as stamp duty and penalty on 24.07.2014. The petitioner preferred an appeal before the first respondent / Inspector General of Registration on 12.09.2014, who in turn passed the impugned order in proceedings dated 23.02.2015.

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The learned counsel appearing on behalf of the petitioner mainly contended that the findings in the impugned order that the fourth respondent has acquired certain rights by virtue of a sale deed dated 01.08.2005 and thus, the Sammatha pathiram presented for Registration cannot be treated as the supplemental deed under section 4 of the Indian Stamp Act, 1989. The very conclusion arrived by the first respondent that the document presented by the petitioner is to be treated as “conveyance” under Entry 23 of the Schedule 1 of the Stamp Act is perverse.

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To substantiate the claim, the petitioner relied on the definition of conveyance under section 2(10) of the Indian Stamp Act. Conveyance

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includes a conveyance on sale and every instrument by which property whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I. Relying on the definition, it is contended that the document presented by the petitioner no way transfers any right between the parties and it is only an assurance given by the fourth respondent in favour of the petitioner confirming his title and therefore, the said Sammatha Pathiram cannot be construed as a conveyance within the meaning of section 2(10) of the Indian Stamp Act. Even under section 2(14)(a) of the Act, the Sammatha Pathiram presented by the petitioner cannot be construed as an instrument. Thus, the order impugned is eligible to be set aside.

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The learned Special Government Pleader objected the said contentions by stating that the definition of conveyance under section 2(10) is to be interpreted so as to include the instrument by which the property whether movable or immovable is transferred. The word instrument has also been incorporated in the definition for conveyance. Section 2(14) defines “instrument” which includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or 4/14

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recorded. Conjoint reading of section 2(10) and 2(14) would indicate that

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the document presented extinguishing certain rights or certain rights recorded are also falling within the definition of instrument and therefore, the present Sammatha Pathiram confirming the title to the petitioner by the fourth respondent is to be construed as an instrument and therefore, the petitioner is liable to pay Stamp Duty as prescribed.

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In support of the contentions, the learned Special Government Pleader relied on the Judgment of the Hon'ble Supreme Court in the case of Ruby Sales and Services (P) Ltd. and another vs. State of Maharashtra and others reported in (1994) 1 SCC 531 , wherein the Apex Court made the following observations:

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“12. Thus the position becomes clear that the consent decree falls under the definitions of “conveyance” as well as “instrument”.

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15. As we have noticed earlier the definitions of "conveyance" and "instrument" start with the expression "includes" which shows that the definitions are very wide. It appears to us that the amendment was made out of

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abundant caution and it does not mean that the consent decree was not otherwise covered by the definitions given in section 2(g) or 2(1) of the Act. As stated earlier it depends on the terms thereof. Merely because an agreement is put in the shape of a consent decree it does not change the contents of the document. It remains an agreement and it is subject to all rights and liabilities which any agreement may suffer. Having a stamp of court affixed will not change the nature of the document. A compromise decree does not stand on a higher footing than the agreement which preceded it. A consent decree is a mere creature of the agreement on which it is founded and is liable to be set aside on any of the grounds which will invalidate the agreement.”

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Considering the arguments, let us first understand the nature of

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document presented by the petitioner before the Registering authority and the contents therein. In this regard, the following contents which are relevant reads as under:

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“,jdoapw; fz;l brhj;Jf;fs; j';fSf;F ghj;jpaKk; mDgtkhf ,Ue;Jnkw;go brhj;Jf;fSf;F ehsJ tiu jh';fs;jhd; jPh;it brYj;jp rh;t Rje;jpu ghj;jpakha; Mz;L mDgtpj;J tUfpwPh;fs;/ nkw;go

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brhj;Jf;fspd; gl;lh ehsJ njjp tiu j';fs; bgahpy;jhd; ,Ue;J tUfpwJ/ nkw;go brhj;Jf;fis rpjk;guk; jhYf;fh. Rpd;dhz;oFHp fpuhkj;ijr; nrh;ej

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uj;drhkp kfd; R. fz;zd; vd;gth; vd;id Vkhw;wp nkhroahf 01/08/2005 njjpapy; 1?g[!;jfk; 955?bjhFjp 95?Kjy; 97?tiu gf;f';fspy; 1166?bek;guhf 2005?y; fpuak; bra;Jtpl;lhh;/

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brhj;Jf;fs; ehd; fpuak; th';fpaJ jtpu ehsJ njjp tiu nkw;go brhj;Jf;fis ehd; mDgtpf;ftpy;iy/ ,J rk;ke;jkhf jh';fs; flY}h; khtl;lk;. Epy mgfhpg;g[ gphpt[ fhty;Jiw Ma;thsh; mth;fsplk; vd; ngupYk;. nkw;go fz;zd; ngupYk; g[fhh; bfhLg;gjhf fhty;Jiw Ma;thsh; mth;fs; Kd;dpiyapy; xg;g[f;bfhz;L vGjpf;bfhLj;jjpd; ngupy;. ehd; j';fSf;F ,e;j rk;kjg; gj;jpuk; vGjpf;bfhLj;jjpd; ngupy;. ehd; vGjpa fpuak; bry;yhJ/ vdf;F me;j fpuag; gj;jpuj;jpd; fPH; vt;tpj chpika[kpy;iy/

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brhj;Jf;fs; c';fSila brhj;Jf;fs; vd;gjid xg;g[f;bfhz;L ,e;j rk;kjg; gj;jpuk; vGjpf; bfhLj;jpUf;fpnwd;/ nkw;go brhj;Jf;fspd; RthjPdk; kw;Wk; mDgtk; j';fsplk;jhd; ehsJ njjp tiu ,Ue;J tUfpwJ/ ehd; 01?08?2005?y; fpuak; th';fpa mry; fpua

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gj;jpuj;ija[k;. ehsJ njjpapy; j';fs; trk; bfhLj;Jtpl;nld;/ nkw;go ,e;j rk;kj gj;jpuk; vGjpf; bfhLg;gjw;fhfh j';fsplk; bjhif vJt[k; ehd; bgw;Wf;bfhs;stpy;iy/ ,jid xg;g[f;bfhz;L ehd; rk;kjpj;J j';fs; bgaUf;F vGjpf;bfhLj;j rk;kjg; gj;jpuk;. ”

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The first portion of the document namely “Sammatha Pathiram” reveals that the fourth respondent endorses that the subject property is with the possession and enjoyment of the writ petitioner and the petitioner pays the tax etc. The fourth respondent further states that the patta also stands in the name of the writ petitioner and the fourth respondent was cheated by one R.Kannan and fraudulently executed the sale deed in favour of the fourth respondent. At the outset, the fourth respondent states that he is an innocent purchaser of the property and one R.Kannan cheated him.

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Further the document proceeds by stating that the fourth respondent has not enjoyed the subject property, except the purchase made by him through a sale deed executed by R.Kannan. He further states that the writ petitioner lodged a complaint before the Land Grabbing Cell for

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initiation of action against the fourth respondent and investigation was conducted which resulted in execution of Sammatha Pathiram before the Registering Authority. Finally the fourth respondent declares that the subject property belongs to the writ petitioner. Accepting the title of the petitioner, the fourth respondent executed the document namely “Sammatha Pathiram”.

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In the context of above declaration and the statements made, one has to find out whether the document is to be defined as conveyance or instrument for the purpose of charging Stamp Duty.

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Section 2(10) unambiguously stipulates that conveyance includes a conveyance on sale and every instrument by which property is transferred. Therefore, it is not only sale, but also an instrument wherein the property is transferred. The contention of the petitioner is that there is no transfer effected in the document and therefore, the stamp duty as claimed by the Registering Authority is inapplicable. However, section 2(10) is to be read along with section 2(14), the definition for instrument. The word instrument has been employed in section 2(10) and therefore, the definition of the word

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instrument is also relevant for the purpose of forming a final opinion. The word instrument has been defined that every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded.

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In the context of the above definition, the subject document ie, Sammatha Pathiram reveals that the fourth respondent declares that the petitioner is the absolute owner of the property. The fourth respondent further declares that the writ petitioner is in possession and enjoyment of the property and the patta also stands in his name. Further, the fourth respondent states that the sale deed was executed in his favour fraudulently by one R.Kannan. Therefore, the context in which the Sammatha Pathiram was executed by the fourth respondent is relevant and important.

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The sale deed is executed in favour of the fourth respondent and he is therefore, extinguishing his right in respect of the sale deed executed in his favour by one R.Kannan. Beyond such extinguishment, the fourth respondent further declares that he is not in possession and enjoyment of the subject property. Beyond such declarations, the fourth respondent gone to the extent of recording that the sale deed executed in his favour by 10/14

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R.Kannan is an invalid document. Therefore, he is not only extinguishing

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his right, but also declaring the ownership in favour of the petitioner and further accepting that the sale deed executed in his favour is an invalid document. Therefore, it is falling under the definition of instrument, since the fourth respondent extinguished his rights and recorded certain facts in favour of the petitioner which confers certain rights to the writ petitioner in respect of the property which was purchased by the fourth respondent from R.Kannan.

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There is a purpose for execution of the said Sammatha Pathiram.

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The purpose is to ensure that the petitioner is the absolute owner of the property. Since there are two sale deeds - one in favour of the writ petitioner and another in favour of the fourth respondent, the Sammatha Pathiram executed confirms rights only to the writ petitioner and the fourth respondent has extinguished his right, which is created based on the sale deed, at the instance of one Kannan.

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Thus, an element of transfer of right has been involved and more so, the fourth respondent extinguished certain rights and recorded certain facts to his disadvantage, which is advantageous to the writ petitioner and therefore, this Court has no doubt in confirming the opinion that the 11/14

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document presented by the writ petitioner ie., Sammatha Pathiram is falling within the ambit of sections 2(10) and 2(14) of the Indian Stamp Act. Therefore, the petitioner is liable to pay Stamp duty as claimed by the respondents.

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In view of the facts and circumstances, this Court do not find any infirmity in respect of the orders passed by the first respondent. Accordingly, the petitioner is bound to pay Stamp Duty and in the event of such payment, the authority competent shall release the document by following the procedures as contemplated under the provisions of the Registration Act and Rules in force.

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