Bombay High Court
Ms. Purnima Bhanuprasad Gohil vs State Of Maharashtra And Ors on 3 October, 2024
2024:BHC-AS:39156
Sayyed 3-WP.2361.2014 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2361 OF 2014
Ms. Purnima Bhanuprasad Gohil
(Earlier known as Purnima Kumar)
Flat No.A-502, Rajkamal, 1210,
Raheja Complex of Yari Road,
Versova Andheri (West),
Mumbai - 400 061. ...Petitioner
Versus
1. State of Maharashtra
Through the office of the Government
Pleader, High Court, Mumbai.
2. The Collector of Stamps
Andheri District, MMRDA Building
1st Bandra-Kurla Complex,
Bandra (East), Mumbai - 400 051.
3. The Hon'ble Registrar/Administrative
Officer (AO) Mumbai Suburban District,
Bandra Family Court Building, Ground
Floor, Bandra-Kurla Complex,
Bandra (East), Mumbai - 400 051.
4. The Inspector General of Registration
and Controller of Stamps, Maharashtra
State, Pune Near New Administrative
Building, Ground Floor, Opp. Council
Hall, Pune - 411 001.
5. The Sub-Registrar,
Andheri - 1, Family Court Building,
Ground Floor, Bandra-Kurla Complex,
Bandra (East), Mumbai - 400 051. ...Respondents
__________
Mr. Arun H. Mehta for Petitioner.
Mr. A. I. Patel, Addl. G. P. a/w Mr. P. G. Sawant, AGP for Respondent-
State. __________
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CORAM : JITENDRA JAIN, J.
DATED : 3rd OCTOBER 2024
ORAL JUDGMENT:
1. This petition under Article 227 of the Constitution of India is
filed challenging an order passed by the Appellate Authority dated 6 th
December 2013 and order passed by Collector of Stamps dated 28 th
August 2012 refusing to register the document titled as "Family
Partition of Assets Settlement Deed" ("Settlement Deed") on the ground
that the said Settlement Deed was executed on 20th December 2011 and
the document has been lodged for registration on 16 th November 2012,
which is beyond the period of 4 months provided under Section 23 of
the Registration Act, 1908 ("the Act").
Brief Facts:-
2. The genesis of the present petition arises out of a matrimonial
dispute, between Petitioner and her husband, which landed before the
Family Court. Petitioner and her husband decided to settle the dispute
between themselves and, therefore, executed a Family Partition Of
Assets Settlement Deed on 20th December 2011. As per the Settlement
Deed, husband of the Petitioner was to transfer to Petitioner and their
son two flats. A joint application was made before the Family Court on
22nd December 2011 to keep the original Settlement Deed in its custody
till in the parties comply with the duties and obligation under the
consent terms.
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3. On 27th January 2012, Petitioner and her husband informed
the Family Court that both the parties have complied with their
respective obligations under the Settlement Deed and the Family Court
may pass the decree in terms of said Settlement Deed. Pursuant to the
said request, on 17th February 2012, decree of divorce came to be
passed by the Family Court.
4. Since the decree in terms of the Settlement Deed involved
immovable properties of two flats, Petitioner on 6th June 2012 lodged
the copy of said decree and Settlement Deed with the Superintendent of
Stamps for determination of stamp duty payable on the said document.
The Stamp Authority processed the said application and on 28 th August
2012 determined the stamp duty payable on the Settlement Deed by
arriving at a figure Rs.2,29,450/- and penalty of Rs.27,534/-. The said
two amounts were duly paid by Petitioner on 30 th August 2012. On 12th
September 2012, Petitioner made an application to the Family Court for
return of original Settlement Deed dated 20 th December 2011 for
affixing the requisite stamps under the Bombay Stamp Act. The original
document duly stamped were delivered on 13 th September 2012 and
Petitioner on 16th November 2012 lodged the Settlement Deed for
registration.
5. On 17th December 2012, the authorities refused to register the
document on the ground that the Settlement Deed is dated 20 th
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December 2011 which has been lodged for registration on 16 th
November 2012 and, therefore, same is lodged beyond period of 4
months provided under Section 23 of the Act. The said order was
challenged by filing a writ petition before this Court. However, this
Court relegated the Petitioner to alternative remedy of appeal.
Pursuant thereto, Petitioner filed an appeal under Section 72 of the Act.
The Appellate Authority on 6th December 2013 dismissed the appeal by
relying upon reasoning giving by the lower authority on limitation.
6. It is on the aforesaid backdrop that the Petitioner has
challenged original order and appellate order before this Court in the
present petition.
7. Mr. Mehta, learned counsel for the Petitioner submits that the
time taken by the stamp authorities for adjudication of the stamp duty
from 6th June 2012 to 13th September 2012 should be excluded for the
purpose of calculation of 4 months under Section 23 of the Act and if
that is excluded then the Petitioner has lodged the document within 4
months and, therefore, there is no delay in lodging the document for
registration. Learned counsel has relied upon a decision of this Court in
Kirti Jagdish Mulani Vs. The State of Maharashtra & Ors. 1 in support of
this submission and brought to the attention of this Court more
particularly paragraph 9 to contend that the Co-ordinate Bench of this
Court has taken identical view.
1 Writ Petition No.2662 of 2012 dated 17th January 2013
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8. Per contra, Mr. Sawant, learned AGP vehemently opposed the
petition on the ground the document is dated 20th December 2011,
whereas the same has been lodged for registration on 16 th November
2012 and since it is beyond the period of 4 months provided under
Section 23 of the Act, the authorities were justified in rejecting the
registration of the Settlement Deed.
9. I have heard learned counsel for the Petitioner and learned
counsel for the Respondent.
10. It is important to note that the Appellate Order dated 6 th
December 2013 has been passed without giving any opportunity of
hearing to the Petitioner. Normally this Court would have remanded
back to the Appellate Authority, but in the light of the fact that 10 years
have passed and the petition is pending before this Court and further
the issue involved is also squarely covered by the decision of the Co-
ordinate Bench of this Court, this Court deems fit to adjudicate the issue
in the present petition rather than remanding the matter back to the
Appellate Authority.
11. Section 23 of the Registration Act reads as under :-
"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:
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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."
12. Section 34 of the Bombay Stamp Act, 1958 (now the
Maharashtra Stamp Act) reads as under :-
"34. Instruments not duly stamped in admissible in evidence etc.
- No instrument chargeable with duty shall be admitted in
evidence for any purpose by any person having by law or
consent of parties authority to receive evidence, or shall be acted
upon, registered or authenticated by any such person or by any
public officer unless such instrument is duly stamped [or if the
instrument is written on sheet of paper with impressed stamp
[such stamp paper is purchased in the name of one of the parties
to the instrument].
[emphasis supplied]
13. The period from 20th December 2011 to 17th February 2012 is
required to be excluded on account of first proviso to Section 23 of the
Act. Also insofar as the period from 20th December 2011 to 6th June
2012 is concerned, the Settlement Deed was conditional upon Petitioner
and her husband complying with certain obligation of fulfillment of
their respective obligations. Petitioner and her husband informed the
Family Court about the same and requested for decree to be passed in
terms of the Settlement Deed after due compliance of their obligations.
It is also important to note that the original Settlement Deed was in the
custody of the Family Court from 20 th December 2011. On the request
being made by Petitioner and her husband, Family Court passed a
decree of divorce in terms of the Settlement Deed on 17 th February
2012. Therefore, in my view, time taken from 20 th December 2011 to
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17th February 2012 has to be excluded for determining the time
provided under Section 23 of the Act. Now the issue arises of period
post decree.
14. On a conjoint reading of Section 23 of the Registration Act
and Section 34 of the Bombay Stamp Act, 1958, it is evident that until
document is duly stamped, Registering Authority cannot register the
said document. It is not disputed that since the Settlement Deed dealt
with immovable property it was required to be compulsorily registered
under the Registration Act read with Transfer of Property Act, 1882. In
my view, on a conjoint reading of the aforesaid two provisions, the time
taken by the stamp authority from 6 th June 2012 till 13th September
2012 has to be excluded for calculating the 4 months period provided
under Section 23 of the Act. This is so because, the said period cannot
be attributed to the Petitioner and unless the stamp authorities
adjudicate the stamp duty payable and Petitioner pays the stamp duty,
the document cannot be registered as per Section 34 of the Stamp Act.
Therefore, in my view, submission made by Petitioner is required to be
accepted for excluding the period from 6th June 2012 to 13th September
2012 when the original document was delivered back. It is also
important to note that in terms of the divorce decree certain payments
had to be made between the parties and, therefore, on the same being
paid during period 17th February 2012 to 6th June 2012, the application
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for adjudication of the document came to be lodged on 6th June 2012.
15. In my view, on account of above reasoning, the period from
20th December 2011 till 30th September 2012 is required to be excluded
for the purposes of Section 23 of the Act and, therefore, the Settlement
Deed has been lodged within the period provided under Section 23 of
the said Act.
16. Mr. Sawant, learned AGP could not distinguish the decision of
the Co-ordinate Bench of this Court in the case of Kirti Jagdish Mulani
(supra) nor anything has been brought to my notice that the said order
has been reversed or is not a good law as of today. The decision of this
Court in Kirti Jagdish Mulani (supra) also supports the case of Petitioner
and the view which I have expressed above.
17. To conclude period from 20th December 2011 to 17 February
2012 is to be excluded under proviso to Section 23 and also on account
of time taken for obtaining decree in terms of Settlement Deed. Time
taken thereafter upto 16th November 2012 is required to be excluded on
account of adjudication by Stamp Authority and affixing of stamps on
the original Deed.
18. In view of above, I pass the following order :-
ORDER
(i) The impugned orders dated 6th December 2013 and 28th
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August 2012 is hereby quashed and set aside.
(ii) "Family Partition of Assets Settlement Deed" dated 20 th
December 2011 being Exhibit-G to the present petition
has been lodged for registration within the time provided
under Section 23 of the Act.
(iii) Respondents are directed to register Exhibit-G within 12
weeks from the date of uploading of the present order.
(iv) Petitioner is directed to take necessary steps by giving
notice or public notice for presence of her husband for
registration of document or produce a death certificate
to show that he has passed away or any other
undertaking to the satisfaction of the Registration
Authority for dispensing the presence of husband for
registration of document.
19. Rule is made absolute in above terms. Petition disposed.
[JITENDRA JAIN, J.]
Signed by: Sayyed Saeed Ali
Designation: PA To Honourable Judge
Date: 04/10/2024 15:44:49 9 of 9
