Andhra Pradesh High Court - Amravati
Unknown vs India on 29 December, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.1258 of 2014
ORDER:
This Civil Revision Petition, under Article 227 of the Constitution of India, by the 2nd respondent is directed against the orders dated 18.02.2014 of the learned II Additional Sessions Judge, Kurnool, at Adoni, passed in I.A.No.45 of 2013 in A.S.No.12 of 2008 filed by the defendants 1 to 3 under Section 35 of the Indian Stamp Act, 1899, praying to send Ex.B1, family arrangement deed, dated 17.01.1961, for impounding the document and for collection of stamp duty and penalty.
2. Heard learned counsel appearing for the petitioner. There is no representation on behalf of the respondents 1 to 3. Respondents 4 to 9 are stated to be not necessary parties.
3. The facts necessary for consideration are as follows:
The defendants 2 to 9 are the legal representatives of the deceased 1st defendant. The revision petitioner is the 2nd defendant in the suit. The revision petitioner along with respondents 4 to 9 herein filed suit O.S.No.65 of 1997 on the file of Senior Civil Judge, Adoni. The defendants have taken a specific plea that there was a family arrangement between Veerabhadra Goud and his two sons, namely Veerabhadra Goud and Sivanna Goud. The said document is marked as exhibit B1. During the course of trial, the trial Court has not taken into consideration exhibit B1 for want of stamp duty and penalty.
The trial Court also did not consider the relinquishment deed, marked as exhibit B2. The suit was decreed. The aggrieved defendants preferred appeal before the II Additional Sessions Judge, Kurnool, at Adoni, in A.S.No.12 of 2008.
During the pendency of the appeal, the defendants filed an application, being 2 I.A.No.45 of 2013, before the Court below requesting to send exhibit B1, family arrangement deed, dated 17.01.1961, for impounding for collection of stamp duty and penalty.
4. The plaintiffs having filed a counter in the said application, inter alia contended that during trial, before the trial Court, the appellants had taken an objection for making the document, however, the trial Court had marked the documents, exhibits B1 and B2, subject to objection reserving liberty to decide the same at the time of final disposal and finally had held that those documents are inadmissible in evidence and rejected those documents. It is further contended that once the documents were rejected, poundage could not be collected on such documents and the petition was liable to be dismissed.
5. The Court below, by placing reliance on a decision of this Court, in P.Ramesh v. Shaik Begum Bee 1 , allowed the petition and held that the document, exhibit B1, be sent to the District Registrar, Stamps and Registration Department, Kurnool, for impounding.
6. Aggrieved of the said orders, the 2nd appellant/defendant alone filed this civil revision petition and had inter alia contended that the trial Court, after elaborate trial held that exhibit B1, which is conferring title and which requires to be registered, is inadmissible in evidence and therefore, by mere impounding the said document with stamp duty and penalty, it cannot be admitted in evidence. The trial Court rejected to consider the document not only on the ground that it requires stamp duty and penalty but it is also to be registered as it is conferring title to another person. However, the Court below failed to consider that the objection of admissibility of the document on the ground that it is not stamped in accordance with the provisions of the Indian Stamp Act is different from an objection to the admissibility of the document on the ground that it is unregistered. Even by impounding the document, the 1 (2009) 2 ALD 334 3 same cannot be admissible in evidence, as it requires registration. Further, the Court below has directed for impounding the document to the Sub Registrar whereas the Act contemplates that the District Collector is competent to impound the document.
7. The preliminary objection for sending the document for collection of stamp duty is that the document is inadmissible, anyhow, for want of registration as well. This argument is not acceptable, in view of the mandatory duty under the provisions of Sections 33, 35 and 38 of the Indian Stamp Act, 1899, particularly Section 33(1) which read as under:
33. Examination and impounding of instruments. -- (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in Provided that--
(a) nothing herein contained shall be deemed to require any Magistrate of Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1989);
(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in cases of doubt, --
(a) the State Government may determine what offices shall be deemed to be public offices; and
(b) the State Government may determine who shall be deemed to be persons in charge of public offices.
35. Instruments not duly stamped inadmissible in evidence, etc. -- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped :
Provided that--
(a) any such instrument [shall] be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of any instrument 4 insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contractor agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.
38. Instruments impounded how dealt with. -- (1) When the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.
8. Further, this Court, vide Circular No.13 of 2006, dated 10.07.2006, in Roc.No.1628/SO/2005, instructed all the Presiding Officers of the subordinate Courts that if the stamp duty and penalty is not paid or insufficiently paid on a document produced into Court and no request is made to send the same to the Collector, such document shall not be returned to the party and the same shall be sent to the Collector for appropriate action.
9. Considering the aforesaid fact, the revision petitioner cannot assail the impugned order for having allowed the petitioner to send the document for collection of stamp duty on the said document in view of the mandatory obligation of any Court.
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10. The other objection raised by the revision petitioner is that the Court below has wrongly directed the document to be sent to the District Registrar, Stamps and Registration Department, instead of District Collector. In this context, it is to be seen that Section 33 of the Act requires a document, which is not duly stamped to be impounded and Section 38 requires the Collector to impound the document sent under Section 33.
11. Section 2(9)(b) of the Stamp Act defines "Collector" as follows:
"Collector" means,
(a) within the limits of the towns of Calcutta, Madras and Bombay, the Collector of Calcutta, Madras and Bombay, respectively, and, without those limits, the Collector of a district; and
(b) includes a Deputy Commissioner and any officer whom the State Government may, by notification in the Official Gazette, appoint in this behalf."
Thus, any officer who is appointed as Collector, under Section 2(9)(b) is also 'Collector' for the purpose of Sections 33 and 38.
12. In G.Ramesh v. Revenue Divisional Officer, Nalgonda District 2 , this Court while dealing with the question 'whether Revenue Divisional Officer is Collector' for the purpose of Section 40 of the Stamp Act, examined various provisions of law and the notification issued thereunder and observed at paragraphs no.7 and 8 as under:
"(7) The Government of Andhra Pradesh in exercise of powers under Section 3(10)(d) of the General Clauses Act has issued notification vide G.O.Ms.No.153, dated 25.3.1995 appointing the Commissioner and Inspector General of Registration and Stamps, authorizing to exercise the powers and perform the functions under the provisions of the Stamp 2 2006 (6) ALT 476 6 Act. This notification becomes relevant with reference to the Section 76-A of the Stamp Act, which reads as under:
(i) Section 3 of Registration Act, 1908 empowers the State Government to appoint an officer to be the Inspector General of Registration.
(ii) the Government of A.P in G.O.Rt.No.50, General Administration (Special.A) Department, dated 4-1-1995, created super timescale I.A.S., Officers as the Commissioner and Inspector General in the Registration and Stamps Department.
76-A. Delegation of certain powers: The State Government may, by notification in the Official Gazette, delegate-
(a) all or any of the powers conferred on it by Section 2(9), 33(3)(b), 70(1), 74 and 78 to the Chief Controlling Revenue Authority;
(b) all or any of the powers conferred on the Chief Controlling Revenue Authority by Sections 45(1)(2), 56(1) and 70(2) to such Subordinate Revenue Authority as may be specified in the notification; and
(c) all or any of the powers conferred on it by Section 9(1)(b) to the Commissioner and Inspector General of Registration and Stamps.
(8) Section 76-A of the Stamp Act enables the State Government to delegate its powers under various provisions of the Stamp Act including the power under Section 2(9)(b) of the Stamp Act to appoint any officer as the District Collector." Further, in the cited decision, this Court noted that no notification issued by the Government of Andhra Pradesh appointing the Revenue Divisional Officer as the Collector under Section 2(9)(b) was produced, but as this Court issued Circular Roc.No.1628/SO/2005, dated 10.07.2006, the civil Court is required to send the documents to the 'Collector' and not to the 'Revenue Divisional Officer'.
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13. Later, in Devarakonda Shankara Murthy v. Vemula Rajakmallu3, this Court referred to the decision in G. Ramesh (supra) and further a Notification dated 27.02.2008 of the Commissioner and Inspector General of Registration & Stamps in Letter No.S1/19311/2007 divesting the 'Revenue Divisional Officers' of powers as 'Collector/District Registrars', which reads as follows:
"In exercise of the powers conferred under clause (b) of the sub-section (9) of Section 2 of the Indian Stamp Act, 1899 and in terms of para 6 of the G.O.Ms.No.587, Revenue (Regn.I), dated 17.07.1996, the Chief Controlling Revenue Authority and the Commissioner & Inspector General of Registration and Stamps hereby withdraw the powers of the Sub-Collectors (Head Assistant Collectors), Asst. Collectors and Deputy Collectors/R.D.Os in charge of Divisions, conferred under Sections 40, 41 and 42 of the Indian Stamp Act, 1899."
Thereafter, at paragraph no.8, it is observed as follows:
The above notification therefore purports to withdraw the powers conferred earlier on the Sub Collectors, Assistant Collectors, Deputy Collectors and Revenue Divisional Officers, in-charge of the divisions under Sections 40, 41, 42 of the Stamp Act with effect from 27.02.2008. The withdrawal of such powers necessarily pre-supposes conferment of such powers among others on the Revenue Divisional Officer and they are continued till 27.02.2008 when they were withdrawn. It is therefore clear that the Revenue Divisional Officers, who were previously authorized to perform the duties of the Collector, however were divested of the same by Notification dated 27.02.2008. Learned counsel for the petitioners states that such notification is extracted in the text and the bare Act of the Stamp Act 1899 and the Registration Act 1908, 11th Edition 2011 (brought out by Sri P.V.Rama Raju)."
14. Reverting to the facts of the case on hand, in the present case also, no notification issued under Section 2(9)(b) of the Act as such is placed before this Court. However, a text book of Stamp Manual updated till 1974 (name of 3 2012 (1) ALT 807 (S.B) 8 publication could not be referred as first pages of the book are lost) stated in the notes on Section 2(9)(b) of the Stamp Act that all District Registrars are appointed as 'Collectors' under that provision for the purposes of Sections 16, 31, 32, 38(2), 40, 41, 42, 48, 56, 70 and authorized persons under Section 73. The petitioner could not place before this Court any other order by which such authority has been divested and that the District Registrar has no authority at all at any point of time. Under these circumstances, the order impugned sending the document for the purpose of impounding cannot be found fault. However, if at all it could be shown before the Court below that the District Registrar, at present, has no authority to impound the document, liberty can be given to either party to bring the same to the notice of the Court below and get the order impugned suitably modified to that extent, or else the order impugned remains intact.
15. Insofar as the objection regarding the admissibility of the document for non-registration, it is open for the revision petitioner to take such stand at the appropriate time during the course of hearing of the appeal.
16. It is contended that when once a document has been rejected to be admitted in evidence on consideration of objection raised for its admissibility, no poundage could be collected. In the light of the objection, the lower Court has rightly applied the legal proposition set out in the case of P.Ramesh (supra), which is as follows:
"It is no doubt true that there is some delay on the part of the petitioner. But however on a careful analysis of the series of events, may that because the appellate Court had reversed the judgment of the Court of first instance and allowed the appeal the petitioner had chosen to file the present application at this stage, i.e., in the present second appeal. It is no doubt true that normally marking of documents would be before the trial Court, but for certain exceptions. It is needless to say that the first appeal or the second appeal are continuation of the original proceedings i.e., original suit. Though the 9 application had been filed at belated stage, the petitioner is to be permitted to pay the stamp duty and penalty and to get the document impounded."
17. In view of the aforesaid discussion, this Court does not find any error or infirmity in the order impugned.
18. In the result, the Civil Revision Petition is dismissed, however, with an observation that if at all it could be shown before the Court below that the District Registrar, at present, has no authority to impound the document, either party is at liberty to bring the same to the notice of the Court below and get the order suitably modified to that extent, or else the order impugned remains intact. No costs.
Pending miscellaneous petitions, if any, shall stand closed.
_________________ B.S.BHANUMATHI, J 29th December, 2021 RAR 10 THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI Civil Revision Petition No.1258 of 2014 RAR DATED: 29-12-2021