Madhya Pradesh High Court
Smt. Lalita And 7 Ors. vs Principal Secretary The State Of Madhya ... on 9 December, 2021
Author: Vivek Rusia
Bench: Vivek Rusia
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THE HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(S.B.: HON'BLE Mr JUSTICE VIVEK RUSIA)
Writ Petition No.W.P. No.4838/2011
1 Satish S/o Shri Mohanlal Kulmi, aged
Adult, Occupation-Agriculturist
2 Rohit S/o Shri Shantilal Kulmi, aged
Adult, Occupation-Agriculturist
3 Ashutosh Kulmi, S/o Shri Madhusudan
Kulmi, aged Adult-Occupation-
Agriculturist
4 Ku. Aruna D/o Shri Mohan Kulmi, aged
Adult- Occupation- Agriculturist
PETITIONERS
5 Ku. Archana Kulmi D/o Shri Mohan
Kulmi aged- Adult, Occupation-
Agriculturist
6 Ku Alka D/o Shri Mohan Kulmi, aged
Adult-Occupation- Agriculturist
7 Ku. Shruti D/o Shri Mahendra, aged
-Adult- Occupation Agriculturist
8 Ku. Jyoti D/o Shri Madhusudan Kulmi,
aged Adult-Occupation- Agriculturist
All R/o Gram Bhanwaria, Tehsil- Kukshi,
District Dhar, M.P.
Versus
1 State of M.P. Principal Secretary,
Revenue Department, Vallabh Bhawan,
Mantralaya, Bhopal
2 Collector Dhar, District Dhar, M.P
RESPONDENTS
3 Collector Stamp, District Dhar
4 Tehsildar, Tehsil- Kukshi, District Dhar,
M.P.
5 Additional Tehsildar, Dhar, District Dhar
Writ Petition No.W.P. No.4839/2011
1 Aashutosh S/o Shri Madhusudan, aged
about Occupation- Agriculturist
2 Mahendra S/o Shri Bhagwan, aged
about Occupation- Agriculturist
3 Rohit S/o Shri Shantilal, aged about PETITIONERS
Occupation- Agriculturist
4 Smt. Vandana W/o Shri Mahendra aged
about Occupation- Agriculturist
All R/o Gram Bhanwaria, Tehsil- Kukshi,
District Dhar
Versus
1 State of M.P. Principal Secretary,
Revenue Department, Vallabh Bhawan,
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Mantralaya, Bhopal
2 Collector Dhar, District Dhar, M.P
3 Collector Stamp, District Dhar RESPONDENTS
4 Tehsildar, Tehsil- Kukshi, District Dhar,
M.P.
5 Additional Tehsildar, Dhar, District Dhar
Writ Petition No.W.P. No.4840/2011
1 Smt. Lalita W/o Shri Madhusudan, aged
Adult- Occupation- Agriculturist
2 Smt. Janki W/o Shri Mohanlal, aged
Adult- Occupation- Agriculturist
3 Smt. Rukmani W/o Shri Shantilal, aged
Adult- Occupation- Agriculturist
4 Mahendra S/o Shri Bhagwan, aged
Adult- Occupation- Agriculturist
5 Madhusidam S/o Shri Bhagwan, aged PETITIONERS
Adult- Occupation- Agriculturist
6 Mohanlal S/o Shri Bhagwan aged Adult-
Occupation- Agriculturist
7 Shantilal S/o Shri Bhagwan, aged Adult-
Occupation- Agriculturist
8 Rohit S/o Shri Shantilal, aged Adult-
Occupation- Agriculturist
All R/o Gram Bhanwaria, Tehsil- Kukshi,
District Dhar, M.P.
Versus
1 State of M.P. Principal Secretary,
Revenue Department, Vallabh Bhawan,
Mantralaya, Bhopal
2 Collector Dhar, District Dhar, M.P
RESPONDENTS
3 Collector Stamp, District Dhar
4 Tehsildar, Tehsil- Kukshi, District Dhar,
M.P.
5 Additional Tehsildar, Dhar, District Dhar
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Shri R.K. Mangal, learned counsel for the Petitioners.
Shri Ranjeet Sen, learned counsel for the respondents.
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ORDER
Date: 09.12.2021/ Indore :
Vide this common order I shall dispose of above said three writ petitions as common question of law and facts are involved therein. For the sake of convenience, the facts are being taken from W.P.
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No.4838/2011.
2. The petitioners have filed the present petition being aggrieved the order dated 15.12.2010 passed by Collector of Stamp in exercise of power under Section 40 and 48 B of Stamp Act by which they have been directed to pay deficit stamp duty of Rs. 1,86,377/- along with penalty of Rs. 5,000/- upon them.
3. According to the petitioners late Bhagwan Patidar who owned the agriculture land situated in Patwari Halka No.56 at Gram Bhavria, Bhilapur and Patwari Halka No.58 at Village- Lodi, Tehsil Kukshi, District Dhar. A family partition took place during the life time of Mr. Bhagwan Patidar and since then the petitioners are in their possession and cultivating the land. They had inherited the agriculture land situated in Patwari Halka No.56 at Gram Bhavria, Bhilapur and Patwari Halka No.58 at Village- Lodi, Tehsil Kukshi, District Dhar after the death of late Bhagwan Patidar. The petitioners filed an application before Court of the Tehsildar Kukshi for mutation of their name in the land records. The aforesaid application was registered as Revenue Case No.11/A- 26/200607. On 20.07.2007 a Sahmati Lekh executed between the petitioners was filed before the Tehsildar. According to the aforesaid Sahmati Lekh all the joint owners have agreed to transfer the land among them on the basis of their respective possession of the land came into their share for the purpose of mutation only. Vide order dated 10.08.2007, the Tehsildar passed the order and directed for mutation of their names in revenue records by accepting Fard Batwara . In compliance of the aforesaid order, name of the petitioners were recorded as owners of land which came into their share by way partition and possession .
4. The Collector of stamp issued a show cause notice dated 22.11.2007 alleging that, the petitioners were neither co-owners nor joint owners of the property in question and by way of Sehmati Lekh, they have relinquished their rights , according to the collector of stamp transfer of properties can only be done by sale deed or gift deed not by way of Sehmati Lekh, hence, the Sehmati Lekh being a conveyance is liable to
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be stamped on the basis of market value of the property. The Collector stamped has valued the property Rs. 5,57,730/- and held that Sehmati Lekh, is insufficiently stamped. The petitioners appeared before the Collector and pleaded that they were the co-parcener of the Hindu joint family and the agriculture land was purchased from the income of the joint property. Hence, by way of partition, their names had rightly been mutated and now entries have been changed on the basis of possession by way of Sehmati Lekh,. Alongwith the reply, all the family members filed their affidavit.
5. The learned collector has negatived their submissions and vide order dated 15.12.2010, has held that the partition and mutation have been done between the persons, who were neither co-owners nor the joint owners and said transfer can only be done by registered deed or gift deed.
After partitioned their names had been recorded as owner in the revenue records and now by way of Sahmati Lekh they have relinquished their rights. It is also held that the order of Tehsildar has caused revenue losses to the Government and accordingly directed petitioners to pay deficit stamp duty of Rs. 1,86,377/- alongwith penalty of Rs. 5,000/-. Hence, present petitions before this Court.
6. After notice, the respondents have filed the reply by submitting that late Bhagwan Patidar during his life time had already partitioned the property between legal heirs / petitioners and after partitioned, every member of joint family became the absolute owner of land came into his share and by way of Sahmati Patra eight owners have transferred their respective share to nine other persons, therefore, such Sahmati Patra is conveyance under Section 2 (14) of Indian Stamp Act. It is further submitted that Section 48-B gives authority to the Collector of stamps to call the original copy of deed for the recovery of the deficit stamp. It is further submitted that against the aforesaid order a revision lie before the Board of Revenue, hence, the petition is liable to be dismissed.
I have heard learned counsel for the parties and perused the record.
7. Shri Rohit Managal, learned counsel for the petitioners submits that
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the petitioners are the descendants of late Bhagwan Patidar. During the life time of Bhagwan Patidar, a partition took place between the petitioners and their names were mutated in the revenue record as per the partition but they were possession over the part of the land given to other descendants , therefore, they entered into a Sehmati Lekh for recording their names in respect of land came in their possession. There was neither the transfer nor gift of land between them. There was no sale consideration, or any amount paid to each other. Even there is no relinquishment of right in the property. The collecore of stamp has adopted hyper technical view in this matter Hence, Sehmati Patra has rightly been executed on stamp of Rs. 100/-. In support of his contention he has placed reliance over the judgment passed by Punjab and Haryana High Court in case of Bhagwan Singh Vs.Hardiyal Singh reported in AIR 1975 Punjab and Haryana 256 in which High Court has held that the document titled as Rajinama intended only to have mutation sanctioned by revenue authority is not an instrument stamp or registration was not required. It is further submitted that by way of Sehmati Patra agriculture land was transferred between the one family member to another family members on the basis of their possession. Even if it is termed as gift for transfer of property then stamp duty is not liable to be paid on the basis of market value but on basis of land revenue. Therefore, the Collector ought to have calculated the stamp duty on the basis of land revenue. The Collector has summarily decided the matter and passed the order dated 15.12.2010.
8. Shri Sen learned Penal Lawyer appearing for the respondents/ State submits that after the partition ,the petitioners become an absolute owner of property, hence they are no more a joint owner or co-sharer of the property of joint Hindu Family. After becoming an absolute owner, they have transferred their land by deed then it is conveyance and liable to be stamped and registered under section 2(14) of the Stamps Act. The Collector has not committed any error while demanding the additional stamp duty.
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Conclusions...
9. Admittedly, the petitioners are the descendants of late Bhagwan Patidar who owned the agriculture land. During life time of Karta (head) of joint Hindu Family, the partition took place in the family and petitioners become the owner of the land came into their respective share. Since they were not possession of the part of land which came into their possession therefore, they entered into the Sehmati Lekh for mutation of their names for the which is in their possession. This is neither a sale nor gift between them and there is no element of relinquishment of any right . The partition which ought to have been done on the basis of possession over their respective share. In fact partition between coparceners has now been done in two steps . The Tehsildar in its jurisdiction vested under the MPLRC has accepted the Sehmati Lekh as Fard Batwara and directed for recording of the name on the basis of possession on the spot. Learned Tehsildar obtained consent and signature of all the parties and prepared a Fard. In the Sehmati Lekh it has specifically been mentioned that the earlier partition was erroneously done not on the basis of possession and now they have agreed for mutation of their name on the basis possession and for which every member has given a consent. Therefore, it cannot be termed as transfer of the property or relinquishment between co-owners. They have only corrected partition held earlier between them and in order to avoid any further dispute and complication now they have agreed to record their name on the basis of their possession . By accepting the Sehmati Lekh, the Tehsildar has rightly passed the order of mutation. This has curtailed number of forthcoming disputes between the parties in future, therefore, the order passed by Collector is not liable to be sustained.
In view of the above, petitions are allowed and the order dated 15.12.2010 passed by Collector of Stamp is hereby set aside .
No order as to cost.
(VIVEK RUSIA) JUDGE praveen PRAVEEN NAYAK 2021.12.13 17:50:14 +05'30'