Madras High Court
V.Sekar vs Chief Controlling Revenue ... on 3 March, 2021
W.P.No.12589 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.03.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.No.12589 of 2014
V.Sekar .. Petitioner
Vs.
1.Chief Controlling Revenue Authority and
Inspector General of Registration
No.100, Santhome High Road
Chennai - 600 028
2.District Registrar (Administration)
Central Chennai
Chennai - 600 014
3.Sub Registrar
Ashok Nagar Sub Registrar Office
Chennai
4.The Tamil Nadu Slum Clearance Board
Represented by its Chairman
No.5, Kamarajar Salai
Chennai - 600 005 .. Respondents
***
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records
of the 1st respondent in D.Dis.No.28388/P1/2013 dated 11/2/2014 and
quash the same as illegal and non-est and consequently, direct the
respondents 1 to 3 to give regular number in the Book-1 register of the
respondent 3 in respect of Release Deed dated 19/12/2011 registered as
pending Document No.98/2011 at 3rd respondent's office by treating it
as Release Deed falling under Article 55A of the Indian Stamp Act, 1899
and release and return the said release deed to the petitioner.
***
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W.P.No.12589 of 2014
For Petitioner : Mr.J.Suresh
For R1 to R3 : Mr.B.Kannan
Government Advocate
For R4 No Appearance
ORDER
This writ petition is filed for issuing a Writ of Certiorarified
Mandamus, to call for the records of the 1st respondent in
D.Dis.No.28388/P1/2013 dated 11/2/2014, quash the same as illegal
and non-est and consequently, for a direction to the respondents 1 to 3
to give regular number in the Book-1 register of the respondent 3 in
respect of Release Deed dated 19/12/2011 registered as pending
Document No.98/2011 in the office of the 3rd respondent by treating it
as a Release Deed falling under Article 55A of the Indian Stamp Act,
1899, release and return the said release deed to the petitioner.
2. The brief facts that are necessary to dispose of the writ petition
are as follows: The petitioner is the son of Late T.Venkatesan. The
subject matter of the writ petition is a Plot bearing No.143, Door No.15,
Velunachiyar Street, M.G.R. Nagar, Chennai - 600 078. For the sake of
convenience, hereinafter, the subject matter of this writ petition, may be
referred to as 'plot'. Petitioner's father was allotted the said plot and he
was in enjoyment and the allotment was by way of a Lease-cum-Sale
Agreement dated 02.01.1985. As per the arrangement, the petitioner's
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W.P.No.12589 of 2014
father was to get a sale deed upon payment of all the installments, as
per the terms of the lease cum sale agreement dated 02.01.1985.
3. It is admitted that the petitioner's father died on 11.4.2005
leaving behind the petitioner's mother, petitioner, petitioner's brother
and petitioner's sister, as his legal heirs. After the death of petitioner's
father, the allotment was transferred in favour of petitioner's mother, as
a heir of petitioner's father by the Tamil Nadu Slum Clearance Board. By
proceedings of the Tamil Nadu Slum Clearance Board dated 09.09.2008,
a direction was issued for cancelling the allotment in favour of
petitioner's father and to transfer the allotment in favour of petitioner's
mother. The proceedings dated 09.09.2008 refers to the manner of
transfer in the following lines:
" ,t;bthJf;fPLjhuh; jpU/bt';fnlrd; 11/4/05 md;W
,we;J tpl;lhh; vd kDjhuh; jpUkjp/rhujh-bt';fnlrd;
(nyl;) ,wg;g[ kw;Wk; thhpR rhd;W rkh;gpj;J thhpR
Kiwapy; bgah; khw;wk; bra;J fpuag;gj;jpuk; nfhhpa kD
kPJ ghprPyid bra;J thhpR Kiwapy; bgah; khw;wk;
bra;a khWjy; fl;lzk; U:/500-? urPJ vz;/156779. ehs;
4/4/08?d;go brYj;jpa[s;shh;/
vdnt xJf;fPLjhuh; jpU/bt';fnlrd; (nyl;)
bgahpy; cs;s xJf;fPl;lhiz ,jd; K:yk; uj;J bra;J
thhpR Kiwapy; jpUkjp/rhujh-bt';fnlrd;(nyl;) bgahpy;
khw;wk; bra;J cj;jutplg;gLfpwJ/"
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W.P.No.12589 of 2014
4. It is admitted before this court that the balance amount towards
installments was collected. After collecting the entire amount, a sale
deed was executed in favour of petitioner's mother by a document dated
17.10.2008. Thereafter, the petitioner's mother, son and sister, by a
Deed of Release dated 19.12.2011, relinquished their right in favour of
the petitioner, for a consideration mentioned in the document. As per the
document, the mother, brother and sister of the petitioner, relinquished
their right in favour of the petitioner in respect of northern 871 sq.ft. by
receiving a sum of Rs.2,00,000/- as consideration. The other sharers
have factually relinquished their collective 3/4th undivided share in
respect of northern 871 sq.ft. and their right over the said property, to
and in favour of the petitioner.
5. When the document was presented for registration, the
District Registrar issued a show-cause notice dated 5.11.2012 to the
petitioner stating that why a sum of Rs.96,000/- cannot be collected
from the petitioner by way of deficit stamp duty along with a sum of
Rs.1,000/- as penalty. Since the sale deed was obtained in the name of
petitioner's mother, it is stated that the petitioner has no prior interest
and that therefore the release deed should be treated as a conveyance
of title. Thereafter, the District Registrar, by proceedings dated
03.05.2013 directed the petitioner to pay a sum of Rs.97,000/- as
mentioned in the show-cause notice. Challenging the order passed by
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W.P.No.12589 of 2014
the District Registrar dated 03.05.2013, the petitioner preferred a
Revision before the Chief Controlling Revenue Authority & Inspector
General of Registration, Chennai - 600 028. By proceedings dated
11.2.2014, the Chief Controlling Revenue Authority & Inspector General
of Registration, Chennai - 600 028, dismissed the Revision preferred by
the petitioner and confirmed the order of the District Registrar dated
03.05.2013. Challenging the orders of the respondents 1 and 2, the
above writ petition is filed by the petitioner.
6. The learned counsel appearing for the petitioner, after
referring to the facts, submitted that the petitioner is only a co-owner
and that therefore, under Article 55A of the Schedule to the Indian
Stamp Act, 1899, the petitioner is liable to pay 1% as stamp duty. It is
submitted that the release deed does not fall under Article 55C of the
Indian Stamp Act, 1899 or can be considered as a document of
conveyance deed under Article 23 of the Schedule of Indian Stamp Act.
The learned counsel for the petitioner further submitted that the Lease-
cum-Sale Agreement was in favour of petitioner's father and that the
petitioner's mother was substituted only as a legal heir of petitioner's
father and not as person to be acknowledged as exclusive owner in her
individual capacity. Petitioner's counsel further submitted that the
petitioner along with other legal heirs are entitled to equal share in the
property that was allotted in favour of petitioner's father and that the
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W.P.No.12589 of 2014
sale deed obtained in the name of his mother will not take away the
rights of other co-owners.
7. In the counter affidavit filed by respondents 1 to 3, it is
stated that the writ petitioner did not have any pre-existing right over
the property before the release deed was executed by the other legal
representatives of the original allottee. It is further stated in the counter
affidavit that the mother of the petitioner, by virtue of the sale deed,
took into her the exclusive right over the property and that the Release
Deed cannot be treated as a release in favour of the family members. It
is stated further that in the absence of any pre-existing right, the
petitioner cannot claim himself to be a co-owner. Learned counsel
appearing for the respondents, in support of his contention, has relied on
a Full Bench judgment of this court in Board of Revenue and Anr. vs.
V.M.Murugesan Mudaliar reported in AIR 1955 Mad 641. The Full
Bench of this court in the said judgment relied upon by the respondents,
has ruled as follows:
" 6. In such a case there need be no conveyance as
such by one of the co-owners in favour of the other co-
owners. Each co-owner in theory is entitled to enjoy the
entire property in part and in whole. It is not therefore
necessary for one of the co-owners to convey his interest
to the other co-owner. It is sufficient if he releases his
interest. The result of such release would be the
enlargement of the share of the other co-owner. There
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W.P.No.12589 of 2014
can be no release by one person in favour of another,
who is not already entitled to the property as a co-
owner."
8. Relying on the observation, the learned Government Advocate,
appearing for the respondents 1 to 3, submitted that the petitioner in the
present case, is not a co-owner having interest in the property. Since the
petitioner is not entitled to any part of the property or any moiety in the
property allotted, it is contended by the learned Government Advocate
that the Release Deed is not by one co-owner in favour of another and
that the Release Deed should be treated as a conveyance as per Article
23 of the schedule to Indian Stamp Act.
9. The submissions of both the counsels are considered.
10. It is not in dispute that the original allotment was made in
favour of the petitioner's father on 02.01.1985. After the death of
petitioner's father, the petitioner along with the other legal heirs are
entitled to equal shares by way of succession. It is to be seen that the
allotment was transferred in favour of petitioner's mother only as a legal
heir of petitioner's father. In such circumstances, the transfer in favour
of petitioner's mother has to be considered only as a transfer to one
legal heir representing the other legal heirs. The sale deed even though
was executed in favour of petitioner's mother, it should be understood
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W.P.No.12589 of 2014
that the mother holds the property in trust for the benefit of all the other
legal heirs. No other record is produced before this court to treat the
property as her exclusive property. The petitioner's mother was chosen
for transfer of allotment and the allotment was transferred in her name
only as a legal heir of petitioner's father. The manner of transfer of
allotment indicates that the transfer of allotment in favour of petitioner's
mother was only by recognising her as the legal representative of the
deceased father of the petitioner. The document of release is signed by
all the legal heirs of the original owner and the petitioner has obtained
release from other co-owners and the parties have recognised their
equal share in the property. When the document itself shows that the
petitioner has obtained release as a co-owner and other co-owners have
released their right recognising petitioner's right as co-owner having
1/4th right, the order of the District Registrar as well as the Inspector
General of Registration treating the petitioner as a stranger, cannot be
accepted.
11. As stated earlier, the petitioner is a co-owner, as his right as a
co-owner cannot be ignored merely because the original allotment was
transferred in the name petitioner's mother, who was only recognised to
get the allotment as a legal heir of petitioner's father. Once the transfer
of allotment was in recognition of the relationship as legal heir, the
transfer should be deemed to be one in favour of mother, representing
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W.P.No.12589 of 2014
all the other heirs. Since the relationship is not in dispute, this court is of
the view that Article 55A of the schedule to the Indian Stamp Act, 1899
alone is applicable. Article 55 of the Indian Stamp Act, 1899 reads as
follows:
Description of Instrument Proper Stamp Duty
55. A. Release, that is to say, any One rupee for every Rs.100 or part
instrument not being such a release thereof of the market value of the
as is provided for section 23-A or a property which is under release.
release referred to in clauses B, C [Maximum stamp duty is reduced to
and D of this Article whereby a Rs.25,000/- by G.O. Ms. No.125,
person renounces a claim upon C.T. & R (J1), dated the 30th
another person or against any September 2013]
specified property.
B. Release of Benami Right, in
favour of real owner -
(a) of immovable property Seven rupees for every Rs.100/- or
situated within the Chennai part thereof of the market value of
Metropolitan Planning Area and the the property which is the subject
Urban agglomeration of Madurai, matter of release.
Coimbatore, Salem and
Tiruchirapalli and the City of
Tirunelveli;
(b) of immovable property Seven rupees for every Rs.100/- or
situated in any other area; part thereof of the market value of
the property which is the subject
matter of release.
(c) of immovable property Seven rupees for every Rs.100/- or
situated in any other area; part thereof of the market value of
the property which is the subject
matter of release.
C.Release of Right in favour of Seven rupees for every Rs.100/- or
co-owner, that is to say, any part thereof of the market value of
instrument whereby a co-owner of the property which is the subject
a property renounces his claim in matter of release.
favour of another co-owner who is
not a family member on any
specified property over which they
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W.P.No.12589 of 2014
Description of Instrument Proper Stamp Duty
have common right -
(i) if it relates to immovable Seven rupees for every Rs.100/- or
property situated with the Chennai part thereof of the market value of
Metropolitan Planning Area or the the property which is the subject
Urban Agglomeration of Madurai, matter of release.
Coimbatore, Salem and
Tiruchirappalli and City of Seven rupees for every Rs.100/- or
Tirunelveli; part thereof of the market value of
the property which is the subject
(ii) if it relates to immovable matter of release.
property situated in any other area;
(iii) if it relates to any other
property.
D. Release of right in favour of
partner -
(i) A release of right by a partner
or partners in favour of other
partners relinquishing his or their Three rupees for every Rs.100/- or
rights over the immovable property part thereof of the market value of
when the release is between family the immovable property which is the
members who constitute the subject matter of release.
partnership or when the property is
movable property.
(ii) When such release is between
partners who are not family
members. (a) Rupees seven for every Rs.100/-
or part thereof of the market value
of the immovable property which is
the subject matter of release when
such property is situated within the
Chennai Metropolitan Planning Area
and the Urban agglomeration of
Madurai, Coimbatore, Salem and
Tiruchirappalli and the City of
Tirunelveli.
(b) Seven rupees for every Rs.100/-
or part thereof of the market value
of the immovable property which is
the subject matter of release, when
such property is situated in other
areas.
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Since this is a case of release of right by one coowner in favour of other co-
owner and the petitioner is a family member, the release deed attracts
Article 55A of the Indian Stamp Act, 1899, this court has no hesitation to
hold that the petitioner is liable to pay 1% as stamp duty instead of stamp
duty as is applicable to a deed of conveyance.
12. Having regard to the admitted facts, this court is unable to
sustain the impugned order dated 11.2.2014 passed by the first respondent
in D.Dis.No.28388/P1/2013, confirming the order of the District Registrar
(Administration), Central Chennai, dated 03.05.2013. The respondents 1 to
3 are directed to register the document of release by treating the document
as a release falling under Article 55A of Indian Stamp Act, 1899 and return
the same after registration by collecting stamp duty accordingly.
13. With the above direction, the writ petition is allowed. However,
there shall be no order as to cost.
03.03.2021
Asr
Index : Yes
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S.S.SUNDAR, J.
asr
To
1.Chief Controlling Revenue Authority and
Inspector General of Registration
No.100, Santhome High Road
Chennai - 600 028
2.District Registrar (Administration)
Central Chennai
Chennai - 600 014
3.Sub Registrar
Ashok Nagar Sub Registrar Office
Chennai
4.The Tamil Nadu Slum Clearance Board
Represented by its Chairman
No.5, Kamarajar Salai, Chennai - 600 005
W.P.No.12589 of 2014
03.03.2021
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