Andhra HC (Pre-Telangana)
Pulavarthi Lakshmi Surya Subrahmanyam vs Pulavarthi Somaraju on 17 April, 2000
Equivalent citations: 2000(4)ALD203, 2000(3)ALT787
ORDER
1. This revision arises out of order dated 12-2-1996 in IA No.44 of 1996 in OS No.130 of 1989 on the file of the Court of the I Additional District Munsif, Kakinada, directing the petitioner to pay stamp duty of Rs.1,035/- and penalty of Rs.10,350/- on an entry in the account book sought to be marked as an exhibit by the revision petitioner.
2. I he revision petitioner and respondent are related to each other and were members of a joint family. Revision petitioner filed a suit for injunction against the respondent. During the course of evidence when he warned to mark an entry in the account book as an exhibit, it was objected to by the respondent on the ground that requires stamp duty and penalty. When the entry was referred to the office to assess the stamp duty payable thereon, the office prepared a note that-the said entry, in the account book, is a deed of partition, and hence stamp duty and penalty payable thereon would come to Rs.l 1,385/-. The learned 1 Additional District Munsif accepted the office note and directed the revision petitioner to pay the said amount of Rs.11,385/- as stamp duty and penalty for getting that entry marked during evidence (for the sake of convenience the entry in the account book would hereinafter would be referred to as 'the document'). Aggrieved thereby, this revision is preferred.
3. The contention of the learned Counsel for revision petitioner is that the trial Court, without independently considering the recitals in the document, and coming to a conclusion whether it is a document requiring stamp duty or not, simply accepted the note prepared by the office and gave a direction to pay the stamp duty and penalty as assessed by the office, and contended that since the document is not and cannot be said to be a deed of partition the order under revision is not sustainable. The contention of the learned Counsel for the respondent is that the revision petitioner, on an earlier occasion, took return of the document for being produced before the 'Collector' to determine the nature of the document and the stamp duty and penalty payable thereon, but does seem to have taken steps to get the stamp duty and penalty by the Collector, but again produced the document before the Court and contended that the Court below rightly held the document to be a deed of partition and so there are no grounds to interfere with the order under revision. In reply the contention of the learned Counsel for revision petitioner is that when the document was produced before the Collector, he referred the same to the Sub-Registrar, and the Sub-Registrar did not assess the stamp duty as no immovable property is involved, and since neither the Collector nor the Sub-Registrar assessed tiic stamp duty payable on the document revision petitioner again produced it before the Court
4. Though the revision petitioner took return of the document to get the stamp duty and penalty, if any, payable thereon assessed by the Collector, the Collector does not seem to have determined the nature of the document. On the earlier occasion, the Court also does not seem to have determined the nature of the document. Thus the nature of the document came to be determined for the first time, only bj the order under revision.
5. The document, which is in Teiugu, when translated into English reads:
"fill 23-7-1970 all of us namely Pulavarthi Seetharama Murthy, S/o. Pulavarthi Somaraju, Sri Somaraju, Sri Satyanandam, and Sri Laxmi Surya Subrahmlanlyam, all sons of Sri Pulavarthi Seetharama Murthy, were members of a joint family, which has gold and silver businesses in the name and style of 'Pulavarthi Somaraju and Sons', paint manufacturing and sale business under the name and style of 'Union Paints' at Kakinada. Apart from those businesses Somaraju and Satyanandam in partnership have been running a paint and iron shop in the name and style of'Pulavarthi Hardware Stores' at Kakinada, as a registered firm, and is being assessed as such.
Somaraju and Satyanandam have been claiming that their investment in the said partnership firm was from their self acquired earnings. Pulavarlhi Seetharama Murthy and Lakshmi Siaya Subrahnianyam have been claiming that the business being carried in gold and silver in the name and style of'Pulavarthi Somaraju and Sons' and the immovable properties exclusively belong to them. In view of the said disputes, keeping in view the family welfare and since litigation brings only loss and no body would stand to gain, anything, as per the advice of mediators a decision was taken to first arrive at the investment made in the three concerns i.e., 'Pulavarthi Somaraju Sons', 'Pulavarlhi Hardware Stores' and 'Union Paints' as on 23-7-1970, and the amounts so arrived at is agreed to be divided into three equal shares. The first parry among us i.e., Pulavarthi Seetharama Murthy agreed not to claim any share in the businesses and agreed to close his account, and from hereafter the silver and gold business being carried in the name and style of 'Pulavarthi Somaraju Sons', would be taken over b\ Pulavarthi Lakshmi Surya Subrahmanyanr, 'Pulavarthi Hardware Stores' and 'Union Paints' be taken over by Pulavarthi Satyanandam, Satyanandam and Subrahnianyam should pay l/3rd share to Pulavarlhi Somaraju as owelty in full quits. Debit and Credit entries are accordingly made in the account books. As first party among us agreed to take some immovable property with life interest for him and his wife no share or interest is given to him in the business. A separate document would be executed in respect of the immovable property.
Since, 'Pulavarthy Hardware Stores' shop and 'Union Paints' paints business are exclusively given to Satyanandam, third party among us, other parties have no concern with those businesses. Since the gold and silver business under the name and style of'Pulavarthy Somaraju Sons' is given to Pulavarthy Lakshmi Stirya Suhrahmatiyam, the fourth party among us, and others have no concern with the assets and liabilities of the said business.
Somaraju, Satyanandam and Lakshmi Surya Subrahnianyam should look alter all the Income-tax, Sales lax. Central Excise and other office and Court affairs. Rs.12,140-14 Ps. payable to Pulavarthy Somaraju, second party among us by Pulavarthy Lakshmi Surya Subrahmanyam, is paid today. Satyanandam, the 3rd party among us, who has to pay Rs.22,126-78 ps to Soma Raju, 2nd party among us undertakes to pay the amount as per his convenience and would obtain receipt from Somaraju".
6. From the recitals in the document it is seen that it is more in the nature of a family settlement, than a deed of partition because question of partition arises only when the parties thereto are co-owners or co-sharers of the property covered thereby. The recitals in the document, do not disclose that they are co-sharers or co-owners of the assets to be partitioned. The recitals in the document show that there were disputes regarding the entitlement of some of the parties, to the concerns covered thereby and that only to purchase peace, without going to Court, they arrived at some settlement thereunder. So it cannot strictly be termed as a deed of partition, and it can only be an agreement or family arrangement under which their disputes were amicably settled. Even assuming that the document is a deed of partition since the value of properties partitioned is not mentioned in the document, as contemplated by Section 27 of the Stamp Act, it would not be possible to arrive at the stamp duty payable on the document. In the order under revision it is mentioned that the office assessed the total value of the assets at Rs. 1,02,800-46 ps. On what basis that value was arrived at is no! known because the value of the properties partitioned is not mentioned in the document. In Himalaya House Companies Limited v. The Chief Controlling. Revenue Authority, , it is held that there is no provision in the Stamp Act to make an independent enquiry of the value of the property for determining the duty chargeable and that the only consequence for not complying with the provisions of Section 27 is prosecution as contemplated by Section 57 of the Stamp Act.
7. Alt these apart the order under revision does not disclose that the Court below independently applied ils mind to find out the nature of the document, and that it simply accepted the note put up by the office, which is not the proper method. As stated earlier the recitals in the document does not show that, all the parties thereto are co-owners or co-sharers of all the properties (businesses) covered thereunder. So, I am not able to hold that the document falls under the definition of 'partition' in the Stamp Act. It may fall under the definition of 'agreement', or 'family agreement' or in view of the recitals towards the end of the document it may have to be construed as a receipt.
8. As per the Provisions of the Stamp Act if a document falls under two categories stamp duly has to be paid for the higher category in which it falls. Since value of the entire property covered by the document is not known, the finding of the Court below that stamp duty and penalty have to be collected on the document is not sustainable and is liable to be set aside and is set aside.
9. In the result, the revision is allowed. The order of the Court below is set aside. The document in question does not require any stamp duty. Parties are directed to bear their own costs.