Saradambal Rajendran Alias ... vs District Registrar
2021 Latest Caselaw 21036 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR. JUSTICE SATHISH NINAN
      WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
                         WP(C) NO. 10872 OF 2021
PETITIONERS:

  1       SARADAMBAL RAJENDRAN ALIAS SARADA RAJENDRAN
          AGED 78 YEARS,W/O. M. RAJENDRAN, RAJAMMA NILAYAM, ERNAKULAM
          HEAD POST OFFICE, ERNAKULAM DISTRICT, PIN - 682011,

  2       R. SURESH,S/O.M. RAJENDRAN, RAJENDRA NIVAS, ERNAKULAM
          COLLEGE POST OFFICE, ERNAKULAM DISTRICT, PIN - 682035.

  3       R. RAJENDRAN,S/O.R. RAMESH, RAJAMMA NILAYANM, ERNAKULAM HEAD
          POST OFFICE, ERNAKULAM DISTRICT, PIN - 682011.

  4       S. MAGESH KARTHIK,S/O. R. SURESH, RAJENDRA NIVAS, ERNAKULAM
          COLLEGE POST OFFICE, ERNAKULAM DISTRICT, PIN - 682035.

              BY ADVS.
              K.M.ANEESH
              SRI.K.SANTHOSH KUMAR (KALIYANAM)
              SRI.ADARSH KUMAR
              SRI.BIJU VARGHESE ABRAHAM
              SRI.DILEEP CHANDRAN
              SRI.SHASHANK DEVAN


RESPONDENT/S:

      1       DISTRICT REGISTRAR,OFFICE OF THE DISTRICT
              REGISTRAR(GENERAL) 3RD FLOOR, CC 40/1017, PERUMPILLY
              BUILDING, OPPOSITE TO MAHARAJAS COLLEGE GROUND, HEAD
              POST OFFICE, ERNAKULAM, PIN - 682011.

      2       SUB REGISTRAR,SUB REGISTRAR'S OFFICE, ERNAKULAM,
              PERUMPILLY BUILDING, OPPOSITE TO MAHARAJAS COLLEGE
              GROUND, HEAD POST OFFICE, ERNAKULAM, PIN - 682011.

      3       DISTRICT COLLECTOR ERNAKULAM,DISTRICT COLLECTORATE,
              FIRST FLOOR CIVIL STATION, KAKKANAD, ERNAKULAM -
              682030.

              BY GOVERNMENT PLEADER SRI SUNIL V.K


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C) NO.10872 OF 2021
                                  2


                            JUDGMENT

Order of the Registrar(Ext P4) impounding a

document (Ext P1) and demanding payment of deficit

stamp duty and penalty, is under challenge by the

executants of the document. The petitioners contend

that they do not want to effectuate the document and

hence they seek for return of the document from the

Sub Registry Office.

2. The facts necessary for disposal of the writ

petition are:- The petitioners are partners of a

firm. They executed Ext P1 Partition Deed with

respect to the partnership assets. The document was

presented for registration. Inter alia, on the

grounds of requirement for payment of exorbitant

stamp duty and on the legality of the document, the

petitioners decided not to proceed further with the

document. The petitioners sought for return of the

document. However, without acceding to the said

request, respondents 1 and 2 as per Ext.P4 order,

proceeded to impound the document and required the

petitioners to pay the deficit stamp duty and W.P(C) NO.10872 OF 2021

penalty. The petitioners were further warned that in

case of failure to pay the amount as demanded,

Revenue Recovery proceedings will be initiated for

realisation of the same. Aggrieved, the petitioners

have approached this Court.

3. Heard the learned counsel for the petitioners

and the learned Government Pleader.

4. The document in question is insufficiently

stamped. The parties to the document do not wish to

effectuate the document. Under such circumstances,

could the petitioners be required to pay the deficit

stamp duty and penalty and get the document

impounded, is the short question.

5. The issue involved had come up for

consideration before a Division Bench of this Court

in Dr.Abdul Rasheed @ Dr.A.R.Babu v State of Kerala

& Others (2018(3) KLT 137). The Division Bench held

that, it is within the wisdom of the parties to

decide as to whether they should go ahead with the

transaction on payment of deficit stamp duty and

penalty or to resile from the transaction. It was W.P(C) NO.10872 OF 2021

held that, if the parties do not wish to take the

transaction further, they are entitled for return of

the insufficiently stamped instrument. It was

ordered that the instrument therein be returned to

the presenter. The Division Bench held thus:

"51. If we hold that any document for

registration cannot be taken back, and if

the transaction cannot be resiled from, it

destroys a person's contractual freedom,

and his decisional independence. A person

can opt out of a transaction any time

before the transaction is completed and

his act becomes irrevocable - that is he

acted on it for his benefit.

52. We may reiterate that all the

provisions bearing upon impounding spring

into action only when the document is

sought to be used as if it had been duly

stamped. When the authorities have

received the document for the primary

purpose - that is, registration - but find

that the stamp is insufficient, they can W.P(C) NO.10872 OF 2021

point it out. The party can decide either

to go ahead with the transaction or to

withdraw from it. Better sense may

prevail.

53. Sometimes, as is common, people may

assume lesser stamp duty and wish to enter

into a transaction. The document

presented, the authorities, the experts in

the field, may notice that the stamp duty

is more. It is for the party either to

complete the transaction or to cancel it.

          We     do         not        see        how         ten        times

          penalty(possibly)              imposed         on     innocuous

          transaction           just    because         the    party       has

bona fide acted and, then, realised that

his estimate is wrong."

6. Though the aforesaid judgment is pending

before the Apex Court in SLP No.4833 of 2019 and an

order of stay has been granted, the judgment still

holds the field and I am bound by the same.

7. Apart from the decision in Dr.Abdul

Rasheed's case referred to supra, I deem it W.P(C) NO.10872 OF 2021

appropriate to discuss certain aspects in support of

the conclusion arrived at therein. In terms of

Section 33 of the Kerala Stamp Act, a

person/authority authorised to receive evidence

shall impound an insufficiently stamped instrument

produced before him. So also, a person in charge of

a public office, before whom an insufficiently

stamped instrument is presented in the course of

performance of his functions, shall impound the

document. The consequence of not getting an

insufficiently stamped instrument impounded is

provided under Section 34 of the Stamp Act; the

instrument cannot be admitted in evidence nor can it

be registered. The document can be admitted in

evidence or be registered, as the case may be, only

on payment of the required stamp duty and penalty.

If the party who produced the document in evidence

does not want to rely upon the same and to have it

received in evidence, he need not pay the stamp

duty and penalty (See Uthuppan Abraham v State of

Kerala(1997 (2) KLT 475), Chanda Pillai v Munsiff, W.P(C) NO.10872 OF 2021

Thiruvalla and Others(1975 KLT 753), Varghese v

State of Kerala (1989 (1) KLT 24), Thara Thomas v

Narayanan Nair (1989 (1) KLJ 16)). In Thara Thomas

(supra) it was held,

" The phrase "in the performance of his

functions" in the context is meaningful.

The document, in order to find that it

has been produced or has come in the

performance of the functions of the

authority concerned in my judgment, must

be one, the party concerned has taken

steps to tender in evidence. A more

production of the document cannot

therefore be said to be a production

within the meaning of that phrase,

because, the party who has produced the

document, has every right to take the

same back before steps to tender it

formally in evidence are taken."

8. In Uthuppan Abraham (supra) this Court held,

"I do not think that the Munsiff has W.P(C) NO.10872 OF 2021

really jurisdiction to impound any

document which comes into his possession.

Only the document which is either relied

on by the parties for proving the case or

admitted in evidence by marking as exhibit

is liable to be impounded by the Court.

Merely because a document was filed in

Court(and when the same was not either

proved in evidence or acted upon by any of

the parties) the Munsiff cannot order

impounding the document or imposing any

penalty for insufficiency of the stamp

duty."

9. On the same analogy, if the executant of a

document presented for registration does not want to

effectuate the document and take it any further, he

need not pay the stamp duty and penalty. The

document is to be returned to the presenter in

accordance with Section 71 of the Registration Act.

10. Accordingly, Ext P4 order is quashed.

Respondents 1 and 2 shall cause the document to be W.P(C) NO.10872 OF 2021

returned to the presenter after following the

procedure under Section 71 of the Registration Act.

Writ petition is allowed as above.

Sd/-

SATHISH NINAN JUDGE vdv W.P(C) NO.10872 OF 2021

APPENDIX OF WP(C) 10872/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE PARTITION DEED EXECUTED BY THE PETITIONERS.

EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 16.09.2020

EXHIBIT P3 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONERS.

EXHIBIT P4 TRUE COPY OF THE ORDER NO. INS(2) 2404/2020 DATED 14.10.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 16.03.2021 IN WP(C) NO. 27592/2020.