Madras High Court
D.Kalavathi vs The Inspector General Of ... on 11 July, 2023
W.P.No.11828 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.07.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.11828 of 2015
D.Kalavathi ...Petitioner
Vs.
1.The Inspector General of Registration cum
Chief Controlling Revenue Authority,
Kamarajar Salai, Mylapore, Chennai – 4.
2.The District Registrar, Chidambaram,
O/o. The District Registrar,
Lalkhan Street, Chidambaram – 608 001.
3.The Sub Registrar, Parangipettai,
O/o.The Sub Registrar,
Parangipettai Post, Chidambaram Taluk,
Cuddalore District.
4.R.Masilamani ..Respondents
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
1/14
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W.P.No.11828 of 2015
of the third respondent without demanding any further stamp duty or
registration charges.
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
ORDER
The Writ on hand has been instituted challenging the proceedings of
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.
2. 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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W.P.No.11828 of 2015
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.
3. 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.
4. 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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W.P.No.11828 of 2015
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.
5. 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
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W.P.No.11828 of 2015
recorded. Conjoint reading of section 2(10) and 2(14) would indicate that
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.
6. 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:
“12. Thus the position becomes clear that the
consent decree falls under the definitions of “conveyance”
as well as “instrument”.
...
...
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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W.P.No.11828 of 2015
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.”
7. Considering the arguments, let us first understand the nature of
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:
“,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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W.P.No.11828 of 2015
brhj;Jf;fspd; gl;lh ehsJ njjp tiu j';fs;
bgahpy;jhd; ,Ue;J tUfpwJ/ nkw;go brhj;Jf;fis
rpjk;guk; jhYf;fh. Rpdd
; hz;oFHp fpuhkj;ijr; nrh;ej
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;Jtpll; hh;/
brhj;Jf;fs; ehd; fpuak; th';fpaJ jtpu ehsJ
njjp tiu nkw;go brhj;Jf;fis ehd; mDgtpf;ftpyi
; y/
,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[kpyi
; y/
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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W.P.No.11828 of 2015
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;.”
8. 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.
9. 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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W.P.No.11828 of 2015
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”.
10. 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.
11. 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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W.P.No.11828 of 2015
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.
12. 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.
13. 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
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W.P.No.11828 of 2015
R.Kannan is an invalid document. Therefore, he is not only extinguishing
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.
14. There is a purpose for execution of the said Sammatha Pathiram.
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.
15. 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
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W.P.No.11828 of 2015
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.
16. 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.
17. Accordingly, this writ petition stands dismissed. No costs.
Consequently connected miscellaneous petition is closed.
11.07.2023
nl
Index : Yes
Speaking Order
Neutral Citation : Yes
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W.P.No.11828 of 2015
To
1.The Inspector General of Registration cum
Chief Controlling Revenue Authority,
Kamarajar Salai, Mylapore, Chennai – 4.
2.The District Registrar, Chidambaram,
O/o. The District Registrar,
Lalkhan Street, Chidambaram – 608 001.
3.The Sub Registrar, Parangipettai,
O/o.The Sub Registrar,
Parangipettai Post, Chidambaram Taluk,
Cuddalore District.
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W.P.No.11828 of 2015
S.M.SUBRAMANIAM, J.
nl
W.P.No.11828 of 2015
11.07.2023
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