Kerala High Court
Vimala vs The Revenue Divisional Officer on 15 October, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 15TH DAY OF OCTOBER 2018 / 23RD ASWINA, 1940
WP(C).No. 33601 of 2018
PETITIONER/S:
VIMALA, AGED 71 YEARS
W/O LATE JOSE IYPE,
KAREKKATTU CHAKKALACKAL HOUSE,
ALOOR VILLAGE, CHALAKUDY TALUK,
THRISSUR DISTRICT.
BY ADVS.
SMT.I.SHEELA DEVI
SRI.BINESH.K.N.
RESPONDENT/S:
1 THE REVENUE DIVISIONAL OFFICER
CIVIL STATION ANNEXE,
IRINJALAKUDA ,
PIN 680125.
2 THE DISTRICT REGISTRAR
OFFICE OF THE DISTRICT REGISTRAR, CHEMBUKKAV,
THRISSUR - 680 020.
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J U D G M E N T
The petitioner is aggrieved by the impugned Ext.P-3 order dated 30.7.2018 issued by the 1st respondent whereby he has rejected the application filed by the petitioner seeking to WP(C).No. 33601 of 2018 -2- remit the deficit stamp duty for validating the deficiently stamped power of attorney.
2. The prayers in this Writ Petition (Civil) are as follows:
"(i) Call for the records leading to Exhibit-P3 order and issue a writ in the nature of certiorari by quashing the same;
(ii) issue a writ of mandamus or any other appropriate writ or direction or order directing the 1st respondent to collect the deficit stamp duty along with the penalty and adjudicate Exhibit-P1 power of attorney;
(iii)issue a writ of mandamus or any other appropriate writ or direction or order directing the 2nd respondent to exercise the power under Section 33 and dealt with Exhibit-
P1 power of attorney under Section 39(1)(b) of the Act;
(iv) declare that Section 39 cloth the respondents to dealt with power to stamp documents produced before him along with penalty and issue certificate thereon;
(v) declare that as the 2nd respondent is cloth with the power to realize deficit stamp duty and penalty for the document which are impounded and therefore it is duty bound to realize deficit stamp duty and penalty for those documents which are produced before him;
(vi) Issue such other appropriate writ direction order as this Hon'ble Court may deem fit and proper in the circumstances of the case; and
(vii)Award the cost of the petitioner in these proceedings."
3. Heard Smt.I.Sheela Devi, learned counsel for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents.
WP(C).No. 33601 of 2018-3-
4. The petitioner is a widow of one Jose Iype, who in turn had purchased property from one Sri.George, through his power of attorney holder as per registered sale deed No.827/1984 dated 22.3.1984 of S.R.O., Kallettumkara, Thrissur. Petitioner's husband, Sri.Jose Iype, had expired on 2.11.2016. The extent of the land covered by the said sale deed No.827/84 is 47.76 ares in Sy.No.1128/4 of Aloor Village and as stated hereinabove, the said property was purchased by the petitioner's husband from one Sri.George, as discernible from Ext.P-1 power of attorney dated 7.3.1984, which was executed before the competent official of the Indian Embassy, Doha, as power of attorney No.13351. Though Ext.P-1 power of attorney was not stamped, the officials of the Sub Registrar had not raised any objections and had registered the abovesaid sale deed on the basis of Ext.P-1 power of attorney without any objections therein. After the death of her husband, the petitioner had approached the Village Officer WP(C).No. 33601 of 2018 -4- concerned for mutation of the property in her name. At this point of time the Village Officer pointed out that since Ext.P-1 power of attorney is not stamped, her title as per registered sale deed No.827/1984 is under cloud, etc. Accordingly, the petitioner was advised to approach the 1st respondent-RDO, who is the notified Officer, competent to decide impounding and adjudication proceedings under Secs.33 and 39 of the Registration Act, 1908 and had presented the unstamped Ext.P-1 power of attorney for impounding and for adjudication so as to remit the proper stamp duty and for penalty, if any.
5. The petitioner had placed reliance on the decision rendered by a Division Bench of this Court in W.A.No.2148/2016 decided on 14.8.2017 in the case in Thomas C.Kunjachan v. Revenue Divisional Officer, Kollam & anr, reported in 2017 (3) KLT 989 = 2017 (4) KLJ 122. The matter in issue is fully covered in favour of the petitioner and against the respondents in the above judgment WP(C).No. 33601 of 2018 -5- in W.A.No.2148/2016, reported in 2017 (3) KLT 989 = 2017 (4) KLJ 122, a copy of which has been produced as Ext.P-4 herein.
6. However, the 1st respondent-RDO as per the impugned Ext.P-3 order dated 30.7.2018 has refused to accept the said plea made by the petitioner in Ext.P-2 application on the ground that in view of Sec.32 of the Kerala Stamp Act, no action can be taken after the expiry of the 3 months period stipulated in Sec.32 in respect of the instruments executed out of India. Sec.32 of the Kerala Stamp Act, 1959, provides as follows:
"Sec.32. Certificate by Collector.-
(1) When an instrument brought to the Collector under Section 31, is in his opinion, one of a description chargeable with duty, and
(a) the Collector determines that it is already fully stamped, or
(b) the duty determined by the Collector under Section 31, or such a sum as, with duty already paid in respect of the instrument, is equal to the duty so determined, has been paid, the Collector shall certify by endorsement on such instrument that the full duty (stating the amount) with which it is chargeable has been paid.
(2) When such instrument is, in his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable.
(3) Any instrument upon which an endorsement has been made under this section shall be deemed to be duly stamped or not chargeable with duty, as the WP(C).No. 33601 of 2018 -6- case may be; and, if chargeable with duty, shall be receivable in evidence or otherwise, and may be acted upon and registered as if it had been originally duly stamped:
Provided that nothing in this section shall authorise the Collector to endorse--
(a) any instrument executed or first executed in India and brought to him after the expiration of one month from the date of its execution, or first execution, as the case may be;
(b) any instrument executed or first executed out of India and brought to him after the expiration of three months after it has been first received in the State; or
(c) any instrument chargeable with the duty of twenty paise or less than twenty paise when brought to him, after the execution thereof on paper not duly stamped.
7. The Division Bench while considering the said case has held that Sec.33 clearly provides therein that where an instrument chargeable with duty is produced before a person specified in charge of a public office, on which duty as specified is not paid, then such person shall impound and send the same to the Collector. The documents having been impounded, Sec.34 of the Act provides that an instrument not duly stamped cannot be admitted in evidence. But Sec.39 of the Registration Act clearly authorises the notified Collector to stamp the instrument impounded and once it is stamped with penalty, the consequences WP(C).No. 33601 of 2018 -7- under Sec.41 of the Act would follow and it becomes a valid instrument for all purposes thereafter. It will be profitable to refer to paras 3, 4 & 5 of the abovesaid judgment of this Court in Thomas C.Kunjachan v. Revenue Divisional Officer, Kollam & anr, reported in 2017 (3) KLT 989 = 2017 (4) KLJ 122, which read as follows (see KLT report):
"3. We may first refer to S.18 of the Kerala Stamp Act. It appears that it is with reference to sub-section (2) thereof that the Revenue Divisional Officer held that the three months' period having expired nothing could be done. Section 18 of the Act reads thus :
"18. Instruments executed out of India.-- (1) Every instrument chargeable with duty executed only out of India may be stamped within three months after it has been first received in the State of Kerala.
(2) Where any such instrument cannot, with reference to the description of stamp prescribed therefor, be duly stamped by a private person, it may be taken within the said period of three months to the Collector who shall stamp the same, in such manner as the Government may by rules prescribe, with a stamp of such value as the person so taking such instrument may require and pay for."
We may notice here that the normal rule regarding time of stamping an instrument is specified in S.17 of the Act. It is to be stamped before or at the time of execution. S.18 is an exception in relation to instruments executed outside India. It provides for stamping within three months of being first received in India.
4. We may, however, point out that S.33 of the Act clearly provides that where an instrument chargeable with duty is produced before a person specified in charge of a public office, on which duty as specified is not paid, then such person shall impound and send the same to the Collector. The document having been impounded, S.34 of the Act provides that an instrument not duly stamped cannot be admitted in evidence. But when comes to S.39 of the Act, which clearly authorises the Collector to stamp the instrument impounded and once it is stamped with penalty, the consequences under S.41 of WP(C).No. 33601 of 2018 -8- the Act would follow and it becomes a valid instrument for all purposes thereafter.
5. We are indeed surprised that the Revenue Divisional Officer, who should have been aware of these provisions, being the Collector under the Act, has abdicated his duty. Instead of sticking to hyper technicalities, he could very well have indicated to the writ petitioner/appellant that the document being not duly stamped, was required to be impounded and could have asked him to remit the stamp deficit and pay the penalty. Once that was done, the instrument gets its validity again. But instead he chose to keep quiet and dragged the petitioner to the corridors of this Court. The only consequence is that time and money of everybody including this Court has been wasted."
8. The Apex Court has also held in the case in Jugraj Singh & anr. v. Jaswant Singh & anr., reported in (1970) 2 SCC 386 that in such cases, ratification would then relate back to the original action, which is sought to be validated.
9. It is also relevant to note that a person from whom petitioner's husband had purchased the property was one George and the said George had executed Ext.P-1 power of attorney in favour of Ouseph, S/o.Kunnelil, who appears to be the father of George. That apart, the provision made in Sec.17(1)(g) of the Registration Act stipulates that the power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to WP(C).No. 33601 of 2018 -9- immovable property of the value of one hundred rupees and upwards other than those executed in favour of the related persons mentioned therein require compulsory registration and the said provision was inserted as per amendment Act 31/13 made effective from 13.9.2013. In the instant case Ext.P-1 power of attorney was executed on 7.3.1984 and the sale deed No.827/1984 was executed on 22.3.1984 and therefore, the said amended provisions under Sec.17(1)(g) will have no application to the transaction covered by Ext.P-1 and the sale deed consequently executed. That apart, it appears that the power of attorney in this case has been executed in favour of the father of the executant therein, which comes within one of the permissible relationships in Sec.17(1)(g). In the light of these aspects, it is ordered that the stand taken by the 1st respondent-RDO in Ext.P-3 order is illegal and ultra vies and consequently Ext.P-3 will stand set aside and the plea made by the petitioner will have to be considered afresh. The 1st respondent will ensure that Ext.P-1 power of attorney is WP(C).No. 33601 of 2018 -10- impounded in terms of Sec.33 of the Stamp Act, 1959 and adjudication should be rendered as to the correct stamp duty payable in terms of the Sec.39 of the Act and as to whether any penalty is required in that regard. The proceedings should be completed in that regard by the RDO within a period of one month from the date of production of a certified copy of this judgment.
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE.
Bkn/-
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY NO.13351 DATED 07/03/1984.
EXHIBIT P2 A TRUE COPY OF THE APPLICATION DATED 28/06/2018 SUBMITTED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER, IRINJALAKUDA.
EXHIBIT P3 A TRUE COPY OF THE ORDER NO.A2-506/18 DATED 30/07/2018 ISSUED BY THE REVENUE DIVISIONAL OFFICER, IRINJALAKUDA.
EXHIBIT P4 A TRUE COPY OF THE DECISION REPORTED IN 2017(4) KLJ 122 OF THE HON'BLE HIGH COURT OF KERALA.