Rajasthan High Court - Jodhpur
Sunil Singhvi vs State Of Rajasthan on 10 October, 2023
Bench: Nupur Bhati
[2023:RJ-JD:30970]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 19133/2018
Sunil Singhvi S/o Shri Vijay Singh Singhvi, Aged About 58 Years,
R/o 1 Old Fatehpura, Udaipur.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary Department Of
Registration And Stamps, Government Of Rajasthan,
Jaipur.
2. Collector (Stamps), Circle, Udaipur.
3. Sub-Registrar (First), Udaipur.
4. Shanti Lal Singhvi S/o Adopted Son Of Late Shri
Kanahaya Lal Singhvi, And Biological Son Of Shri Vijay
Singh Singhvi, Aged About 64 Years, R/o 01, Old
Fathepura, Udaipur.
----Respondents
For Petitioner(s) : Mr. Muktesh Maheshwari assisted by
Mr. Aidan Choudhary
For Respondent(s) : Mr. Vikas Balia, Sr. Advocate, assisted
by Mr. Hemant Ballani
Ms. Akshiti Singhvi
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Judgment Reserved on < > 20/09/2023
Date of Pronouncement < > 10/10/2023
Reportable
1. Though the matter is listed under 'Orders ' Category, but on
the request of learned counsels for the parties, the matter is
finally heard today itself.
2. The instant writ petition has been preferred by the petitioner
under Article 226 of the Constitution of India, with the following
prayers:-
[2023:RJ-JD:30970] (2 of 12) [CW-19133/2018]
"1. The impugned order dt.19.11.2018 (Annexure-8) and
the impugned order dt.26.11.2018 (Annexure-9) may kindly
be declared illegal, be quashed and set aside;
2. The Hon'ble Court may further observe that the stamp
duty calculated while allowing rebate in stamp duty at the
time of registering the Gift deed (Anx.2) for land situated at
Goverdhan Vilas Talab, Kachi Basti Military Area, Udaipur in
favour of the petitioner, is just and proper;
3. Any other adverse order passed by the respondent
authorities against the right of petitioner during the
pendency of the writ petition may kindly be taken on record
and be quashed and set aside.
4. Any other appropriate order or direction, which the
Hon'ble Court considers just and proper in the facts and
circumstances of this case, may kindly be passed in favour
of the Petitioner.
5. Costs of the writ petition may kindly be awarded to
the Petitioner."
3. Briefly stated facts of the case are that Shri Vijay Singh
Singhvi and Shri Kanhaiya Lal Singhvi were real brothers and one
Shri Vijay Singh Singhvi had three progeny namely; Shri Shanti
Lal Singhvi (respondent No.4 herein) and Shri Anil Singhvi and
Shri Sunil Singhvi (the petitioner herein). Shri Shanti Lal Singhvi
went into adoption to his uncle Shri Kanhaiya Lal Singhvi and was
recognized as his adopted son but he continued to reside in the
residence of his natural father namely Shri Vijay Singh Singhvi.
4. Shri Shanti Lal Singhvi, out of his own expenses, purchased
a property situated at Goverdhan Vilas Talab, Kachi Basti Military
Area, Udaipur. The said property was purchased by Shri Shanti Lal
Singhvi alongwith his brother Shri Sunil Singhvi (the petitioner)
with Smt. Meena Singhvi and other party in the year 1990 and
partly in the year 2001. In the year 2016, Shanti Lal Singhvi gifted
a portion of his share of land in favour of the petitioner by way of
[2023:RJ-JD:30970] (3 of 12) [CW-19133/2018]
a registered gift deed dated 22.03.2016 (Annexure-2) and
thereafter, the petitioner applied under the Rajasthan Stamp Act,
2004, before the Sub-Registrar, Udaipur for registration of the
aforesaid land in his favour. The Sub-Registrar, after a due
examination of the relevant documents, calculated the stamp duty
for the registration of land by extending 2.5% rebate in the stamp
duty and upon submitting the same, the aforesaid land was
registered in favour of the petitioner. In the application for
registration, it was mentoined that Shri Shanti Lal Singhvi
(respondent No.4) is an adopted son of Shri Kanhaya Lal Singhvi
and natural/biological son of Shri Vijay Singh Singhvi and looking
to it, the respondent authority assessed the stamp duty @ 2.5%
of valuation.
5. After that, the Accountant General Office (Economic and
Revenue Sector Audit) Rajasthan, while auditing the records of the
Sub-Registrar, raised an objection vide notice dated 04.10.2016
(Annexure-5) wherein, it was observed that on account of gifting
an immovable property relating to the father of the Donor Late
Shri Kanhaya Lal Singhvi in favour of his natural/biological brother
is not eligible for 2.5% rebate in the stamp duty and therefore,
the same is liable to be recovered alongwith surcharge. A
reference in pursuance of the audit objection dated 04.10.2016
(Annexure-5) was registered and a notice dated 20.06.2017
(Annexure-6) was issued by the respondent No.2-The Collector
(Stamps), Udaipur to the petitioner and in response to the said
notice, the petitioner submitted a detailed reply and written
arguments before the Respondent No.2.
[2023:RJ-JD:30970] (4 of 12) [CW-19133/2018]
6. The respondent No.2-Collector (Stamps), Udaipur, even after
submitting a detailed reply and written arguments vide impugned
order dated 19.11.2018 (Annexure-8), accepted the reference
made by the respondent No.3-Sub-Registrar, Udaipur and
calculated the difference of the stamp duty amounting to
Rs.37,59,100/- along with the interest @ 12% on the same from
22.03.2016 amounting to Rs.14,43,494/- and also imposed a
penalty of Rs.14,43,494/-. It was further stated in the impugned
order that as per the special exemption scheme introduced vide
notification No.F.2(6)FD/Tax/2014 pt.115 dated 14.09.2018,
rebate of interest and penalty can be availed by the petitioner
upto 31.12.2018 and in case, the petitioner failed to avail the
benefit of the above scheme, the petitioner will be liable for
interest and penalty @ 12% from the date of execution.
7. In pursuance of the impugned order dated 19.11.2018, a
demand notice dated 26.11.2018 (Annexure-9) was issued by the
respondent No.3-Sub-Registrar, Udaipur whereby a demand of
Rs.45,10,920/- has been raised against the petitioner by further
mentioning in it that if the petitioner failed to deposit the aforesaid
demand till 31.12.2018, then, the same will be recovered by
attaching the movable and immovable properties of the petitioner.
8. Being aggrieved of the impugned order dated 19.11.2018
(Annexure-8), passed by the respondent No.2-Collector (Stamps),
Udaipur and by impugned notice dated 26.11.2018 (Annexure-9)
passed by respondent No.3-Sub-Registrar, Udaipur, the petitioner
has preferred the present writ petition.
9. The learned counsel for the Respondent-State while raising
preliminary objection submitted that the petitioners had statutory
[2023:RJ-JD:30970] (5 of 12) [CW-19133/2018]
and efficacious alternate remedy available under Section 65 (1) of
the Rajasthan Stamps Act, 1998.
10. Learned counsel Mr. Muktesh Maheshwari, representing the
petitioner submitted that:-
(A) It is a settled principle of legislative laws as well as the
principle of customary laws as the rights which get curtailed with
adoption are only the property right in the property of the natural/
biological parents and the natural blood line never can never be
eclipsed and neither be vanished even when a person is adopted
by someone else.
(B) As per the settled provisions of law, neither there is any
condition, nor there is any restriction with regard to the claim or
benefit with regard to the gift deed to any member of the family
(in the present case, brother), therefore, the petitioner was rightly
extended the benefit in the stamp duty on the gift deed and
respondent No.2-Collector (Stamps), without considering the said
fact, passed the impugned order dated 19.11.2018 (Annexure-8).
(C) The objection raised by the audit team which led to the
reference was that the property in question was not a self
acquired property of Shri Shanti Lal Singhvi, however, fact of the
matter is that the said property is a self acquired property of Shri
Shanti Lal Singhvi and the proceedings which were initiated before
the respondent No.2, were completely deviated from the
objections and the order dated 19.11.2018 was passed on a
completely different footing.
(D) Even if the impugned stamp duty is due on the same
document, then too, levy of surcharge and additional charges of
stamp duty is absolutely uncalled, arbitrary and illegal. The stamp
[2023:RJ-JD:30970] (6 of 12) [CW-19133/2018]
duty was calculated at the rates prescribed under the law
assessed by the respondent authorities and the said document
was duly accepted by the respondent No.3 after being fully
satisfied as is evident from the stamp report dated 22.03.2016
(Annexure-3) and when an audit objection was raised by the
respondent Department, proceedings with regard to the deficiency
in stamp duty were initiated by the respondent No.2 and recovery
was made in pursuance of the same by penalizing the petitioner.
(E) The matter was pending adjudication before the respondent
No.2-Collector (Stamps) for a period of one and half years,
therefore, there was a delay on part of the authority not on part of
the petitioner and the petitioner is not liable to any such stamp
duty and if is liable of any stamp duty, no surcharge or any
additional charge or interest can be imposed upon the petitioner.
(F) In support of his contentions, learned counsel for the
petitioner relied upon the judgment passed by Hon'ble the Madras
High Court in the case of Viveknarendran Vs. Unknown decided
on 20.07.2020, reported in 2020(6) MLJ 390, where, Hon'ble
the Madras High Court, allowed the Original Petition filed by the
petitioner.
(G) Learned counsel for the petitioner also placed reliance upon
the judgments passed by this Court to prove his case. The said
judgments are as below:-
(1) SBCWP No.4402/2013 (Ashiana Amar Developers Vs.
State of Rajasthan & Ors.) Decided on 02.12.2016.
(2) SBCWP No.10415/2015 (M/s Om Metals Infra Projects
Lts. Vs. The State of Rajasthan & Ors.) Decided on
19.09.2017.
[2023:RJ-JD:30970] (7 of 12) [CW-19133/2018]
(3) SBCWP No.6289/2018 (M/s. Varka Lucky Savings
Scheme Company Vs. State of Rajasthan & Ors.) Decided on
09.05.2018.
(H) Learned counsel for the petitioner also placed reliance upon
the judgment passed by Hon'ble the Apex Court in the case of
Kalindi Damodar Garde (D) by Lrs Vs. Manohar Laxman
Kulkarni (D) by Lrs & Ors. Decided on 07.02.2020, reported in
Civil Appeal No.6642-6643 of 2010. Relevant portion of which
is reproduced hereinbelow:-
"21. In view of the provisions of the Act which do not make
any distinction between the son born to a father prior or
after adoption of his father and that there is no provision
which bars the natural born son to inherit the property of
his natural father, therefore, the High Court has rightly
upheld the rights of the sons of Laxman. In fact, in the Full
Bench judgment of Bombay High Court in Martand
Jiwajee Patil, it has been held that the natural father
retains the right to give in adoption his son born before his
own adoption. Therefore, if he has a right to give his son in
adoption, such son has a right to inherit property by virtue
of being an agnate. There was a full blood relationship
between the three sons and the daughter who was born
after adoption. All the children of Laxman are entitled to
inherit the property of their natural father and mother in
accordance with the provisions of the Act as succession has
opened after the death of Laxman in 1987 and subsequently
the mother in the year 1992.
22. In view thereof, we do not find any error in the
judgment of the learned Single Bench of the Bombay High
Court. Accordingly, the appeals are dismissed."
(I) Learned counsel for the petitioner, thus, urged, that the writ
petition may kindly be allowed and the impugned orders dated
[2023:RJ-JD:30970] (8 of 12) [CW-19133/2018]
19.11.2018 (Annexure-8) passed by respondent No.2-Collector
(Stamps), Udaipur and the order dated 26.11.2018 passed by
respondent No.3-Sub-Registrar, Udaipur, may be quashed and set
aside qua the petitioner.
11. Per contra, learned counsel Ms. Akshiti Singhvi, representing
the respondents-Department, vehemently and fervently opposed
the submissions advanced by the petitioner's counsel and
submitted that:-
(A) The stamp duty has been charged as per law as the stamp
duty was payable on the gift deed which was executed in favour of
other relatives, by the 'Donor'-Shanti Lal Singhvi who became the
adopted son of Shri Kanahya Lal Singhvi and in favour of 'Donne'-
Sunil Singhvi (petitioner), after the adoption, so, the relation of
Sunil Singhvi (petitioner) and Shanti Lal Singhvi, Respondent No.
4, does not remain as real brothers and the stamp duty was
rightly determined and exemption is not applicable in the present
matter as 'Donor' and 'Donne' does not fall within the definition of
near blood relatives.
(B) As per Section 12 of Hindu Adoption and Maintenance Act,
1956 (hereinafter referred to as the Act of 1956), an adopted child
shall be deemed to be child of his or her adoptive father or mother
for all purpose with effect from the date of adoption and from such
date all the ties of the child in the family of his or her birth shall
be deemed to be served and replaced by those created by the
adoption in the adoptive family. It has been further clarified under
Section 2(bb) of the Act of 1956 that this Act is only applicable to
the people who belong to Buddhist, Jain or Sikh community, so it
[2023:RJ-JD:30970] (9 of 12) [CW-19133/2018]
is clear that the Act of 1956 is applicable in the present case at
hand.
(C) After adoption, a brother loses his identity as real brother
and becomes a cousin brother and before the adoption, Shanti Lal
Singhvi and Sushil Singhvi were real brothers but after adoption of
Shanti Lal Singhvi by Shri Kanhaya Lal Singhvi and if Shanti Lal
Singhvi donates his self acquired land to his cousin brother, then,
stamp duty is liable to be charged, which is duly considered by the
Office of Accountant General while raising audit objection.
(D) The order dated 19.11.2018 (Annexure-8) is not a disputed
order as it was passed while considering the law applicable to the
facts of the case and the notice dated 26.11.2018 (Annexure-9)
was issued because the stamp duty was not satisfied by the
petitioner.
(E) In support of her contentions, learned counsel for the
respondent-Department placed reliance upon the judgment passed
by this Court which are as follows:-
(1) Nagendra Singh & Anr. Vs. State of Rajasthan & Ors.
(SBCWP No.14541/2019).
(2) Param Prasad Charitable Trust Vs. State of Rajasthan
& Ors. (SBCWP No.619/2022).
(3) M/s. Maharaja Enclave Vs. State of Rajasthan & Ors.
(SBCWP No.10001/2018).
(F) Learned counsel for the respondent-Department also placed
reliance upon the judgment passed by Hon'ble the Division Bench
of this Court in a bunch of writ petitions viz. State of Rajasthan
& Anr. Vs. Indus Tower Ltd. & Anr. (DB Civil Spl Appeal
(Writ) No.193/2019).
[2023:RJ-JD:30970] (10 of 12) [CW-19133/2018]
(G) Learned counsel for the respondent-Department also placed
reliance upon the judgments rendered by Hon'ble Apex Court in
the cases of:-
(1) Assistant Commissioner of State Tax and Others Vs.
Commercial Steel Limited decided on 03.09.2021 reported in
2021 SCC Online SC 884.
(2) Genpact India Private Limited Vs. Deputy
Commissioner of Income Tax & Anr. Decided on 22.11.2019
reported in 2019 SCC Online SC 1500.
(H) Learned counsel for the respondent-Department, thus,
urged, that the writ petition deserves to be dismissed with costs.
12. Mr. Vikas Balia, learned Senior Counsel assisted by Mr.
Hemant Ballani, Advocate, appearing for private respondent No.4,
submitted that:-
(a) The word 'father' is defined under Section 3(20) of the
General Clauses Act, 1897, which is read as under:-
"3(20) "father", in the case of any one whose personal law
permits adoption, shall include an adoptive father;"
(b) Had there been the intention to not give exemption to
brother, the respondent-Department would have specifically
mentioned word 'natural brother' in the exemption notification
dated 06.03.2013 (Annexure-4) and thus, the petitioner has
wrongly been deprived of the exemption.
(c) The contention of respondent-Department that the
exemption notification is to be interpreted strictly does not find its
ground because it is a beneficial legislation and beneficial
legislation is to be interpreted liberally and also, that if at all the
exemption notification is interpreted strictly, then the word
[2023:RJ-JD:30970] (11 of 12) [CW-19133/2018]
'brother' would include all kinds of brothers and hence, the
exemption notification would apply upon the petitioner.
13. Heard learned counsels for the parties and perused the
material on record as well as the judgments cited at bar.
14. This Court observes that the exemption notification dated
06.03.2013 issued by Finance Department (Tax Division),
Government of Rajasthan, uses the word 'Brother' and that has to
be construed strictly by using the doctrine of strict interpretation
and by applying the strict interpretation, the petitioner cannot be
said to be the brother of Respondent No. 4 after being given away
in adoption.
15. This Court also observes that Respondent No. 4 went into
adoption to one Sh. Kanhaiya Lal Singhvi and as per Section 12 of
the Hindu Adoption and Maintenance Act, 1956 (hereinafter
referred to as 'the Act of 1956'), all the ties of the person who
goes for adoption are deemed to be severed for all purposes with
his natural family. Section 12 of the Act of 1956 is reproduced
hereunder:
"12. Effects of adoption― An adopted child shall be
deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of the
adoption and from such date all the ties of the child in the
family of his or her birth shall be deemed to be severed and
replaced by those created by the adoption in the adoptive
family:
Provided that―
(a) the child cannot marry any person whom he or she
could not have married if he or she had continued in the
family of his or her birth;
(b) any property which vested in the adopted child before
the adoption shall continue to vest in such person subject to
the obligations, if any, attaching to the ownership of such
[2023:RJ-JD:30970] (12 of 12) [CW-19133/2018]
property, including the obligation to maintain relatives in
the family of his or her birth;
(c) the adopted child shall not divest any person of any
estate which vested in him or her before the adoption."
16. This Court further observes that it is of paramount
importance to underscore the sweeping implication of Section 12
of the Act of 1956 in the present circumstances. This Court also
observes that Section 12 of the Act of 1956 explicitly lays down
the effects of adoption stating that all ties between the person
going for adoption and his or her family of birth are severed due
to adoption. This Court further observes that once the ties with
natural brother stood severed as per the provisions of Section 12
and it's proviso of the Act of 1956 on the date of adoption, then
private Respondent No. 4 cannot be said to be brother of the
petitioner in order to avail the exemption as per the notification
dated 06.03.2013 (Annexure-4).
17. This Court also observes that the fulcrum of the petitioner's
claim pivots upon his qualification as a 'Brother' within the
contours of the exemption notification dated 06.03.2013
(Annexure-4), but after examining the effect of the provision
contained in Section 12 of the Act of 1956, the petitioner does not
meet the required criteria and therefore, cannot be granted rebate
as per the exemption notification dated 06.03.2013 (Annexure-4).
18. In view of the above, the present writ petition being devoid
of merits is dismissed and all pending applications, if any, shall
also stands dismissed.
(DR. NUPUR BHATI),J
/Devesh Thanvi/-
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