Punjab-Haryana High Court
Om Parkash vs The State Of Haryana And Others on 9 April, 2014
Bench: Sanjay Kishan Kaul, Arun Palli
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Letters Patent Appeal No.208 of 2014 (O&M)
DATE OF DECISION: 09.04.2014
Om Parkash
.....Appellant
versus
The State of Haryana and others
.....Respondents
CORAM:- HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI
Present: Mr.Amit Jain, Advocate for the appellant
..
SANJAY KISHAN KAUL, CHIEF JUSTICE: (Oral) CM__1230/LPA__2014:
Leave is granted to place on record additional affidavit of the appellant along with annexures and the application is allowed. LPA-208-2014:
The assessment of stamp duty on a document purported to be a Release Deed dated 23.11.2000 under the Indian Stamp Act, 1899 calling upon the appellant to pay a stamp duty of `32,60,800/- has given rise to the present dispute.
Late Yogender Parkash (brother of the appellant before us) and one Pawan Kumar Sharma, son of the appellant, purchased a piece of land measuring 3060 square yards in pursuance to a Conveyance Deed dated 4.8.1972, both having equal shares. This land purchased was a part of a larger land measuring 7780 square yards standing in the name Chand Parkash 2014.04.11 14:16 I attest to the accuracy and integrity of this document LPA-208-2014 -2- of Shri Sehdev Rana, Hardev Sharma and Randev Tyagi comprising Khasra No.9 and Khatoni No.2230. Thereafter, the vendors and the vendees are stated to have constituted a partnership firm and started running a cinema hall on the total land, as referred to aforesaid. It is the case of the appellant that late Yogender Parkash retired from partnership business on 26.8.1980, though it is not disputed that the land purchased by him was never put in the partnership as his contribution nor did he give the right and interest in the land even while retiring from the partnership firm.
Late Yogender Parkash passed away on 12.4.1993. As per the additional affidavit now brought on record in pursuance to the directions passed on the last date of hearing, it has come to light that he executed a last Will and testament dated 1.1.1993 in favour of his wife Mrs. Vijay Sharma. The Will in turn bequeathed property situated in Karnal to be utilized for the welfare of his children being one son and two daughters while all other properties devolved exclusively on his wife Mrs. Vijay Sharma. It has also been averred that no one has disputed the validity and authenticity of the Will.
It is after a period of more than seven years after the demise of late Yogender Parkash and the interest in property in question having exclusively devolved on his wife Mrs. Vijay Sharma as per Will dated 1.1.1993 (devolution taking place on 12.4.1993 being the date of demise of late Yogender Parkash) that a Release deed No.5852 was executed on 23.11.2000 and duly registered with the Sub-Registrar, Yamuna Nagar qua this land in favour of the appellant by Mrs. Vijay Sharma. Thus, Mrs. Vijay Sharma executed this release deed in favour of the brother of her Chand Parkash 2014.04.11 14:16 I attest to the accuracy and integrity of this document LPA-208-2014 -3- husband after seven years of demise of her husband. The case sought to be built upon is that this is in terms of a late husband's intent towards a family arrangement. It is not disputed before us that there is nothing to show on record that late Yogender Parkash ever intended the property in question to go to his brother. This is more so relevant as the Will is executed just a few months prior to his demise. The intention, thus, was to retain title in that property and in turn bequeath the same to his wife as he did. The devolution thus took place at the time of his death. It is nobody's case that post the demise of late Yogender Parkash, Mrs. Vijay Sharma expressed her intention not to accept the bequeath. In such a situation, if it had so occurred, the property would have devolved on the remaining Class-I heirs being the son and two daughters.
It is also relevant to note that the property in question is not an ancestral property but the self-acquired property of late Yogender Parkash. Thus, the appellant before us being his brother had no share whatsoever in the property devolved upon Mrs. Vijay Sharma and for the first time, through the Release Deed, Mrs. Vijay Sharma seeks to create an interest in the property in favour of the appellant. The document may be styled as a Release Deed but effectively is really a transfer deed, though no apparent consideration has been shown for the same.
The document on presentation was impounded by Sub-
Registrar and notices given to all the concerned parties and a detailed order passed on 24.5.2001 holding that the transaction inter se the parties was really a transfer and, thus, imposed stamp duty. This order was assailed in appeal before the Commissioner and the appeal was Chand Parkash 2014.04.11 14:16 I attest to the accuracy and integrity of this document LPA-208-2014 -4- dismissed on 4.12.2001 again analysing the contours of the controversy and holding that this document was effectively a transfer deed.
The appellant aggrieved by the same filed a revision petition bearing No.3397 of 2002. This revision petition remained pending in the High Court for eleven years and on 18.7.2013 it was taken up by the learned single Judge who recorded that it is only after the detailed arguments that the petitioner sought to withdraw the petition to avail of such legal remedy as may be available in law. This legal remedy, as per the appellant, was a writ petition and thus a writ petition was filed bearing No.19610 of 2013 which has been dismissed by the impugned order dated 5.9.2013 of the learned single Judge.
The learned single Judge has once again analysed the matter at great depth. Various judgments referred to at the bar have been incorporated in the order to come to a conclusion that the impugned order had been rightly passed. Not only that, factum of the revision petition having been withdrawn was also taken note of. There was conspicuous absence of any pleadings of having wrongfully pursued a revision for 10 years. The impugned order also shows that remedy of even review was sought against the order of the Commissioner which failed on 9.4.2002. Thus, there has been various tiers of scrutiny of the controversy in question. At the stage when we took up the matter on 19.3.2014, after hearing learned counsel for the appellant, we had in view of our query granted time to the learned counsel to place on record an additional affidavit setting forth the facts qua devolution of the interest qua late Yogender Parkash on his wife Mrs. Vijay Sharma, i.e., whether there were any other Class-I legal heir(s) and whether there was any Chand Parkash 2014.04.11 14:16 I attest to the accuracy and integrity of this document LPA-208-2014 -5- testamentary Will executed by late Yogender Parkash. We may add that till affidavit has been filed in pursuance to our said order, there has been complete lack of disclosure of these aspects which would have in fact strengthen the case against the appellant even more.
We have no doubt that all the forums below have rightly concluded that the document in question is really a transfer document. The story of a family settlement is a make-believe one as late Yogender Parkash never set forth any intention of any such family settlement but, on the contrary, had executed the Will dated 1.1.1993 just a few months before his demise on 12.4.1993 when he unexpectedly passed away in an accident at a young age of 45 years. There was, thus, no change in ground reality between execution of this testamentary document and his demise. Not only that, the intention of the Will appears to have been given effect to and property in question devolved absolutely on Mrs. Vijay Sharma. It is only seven years henceforth that Release Deed was executed and it is difficult to accept that this transaction is without any consideration. Be that as it may, the revenue of the State cannot suffer on this account, document being incapable of being treated really as a Release Deed.
In the end, we may note that as per this additional affidavit at Annexure P-11, learned counsel for the appellant has annexed a clarification regarding Article 55 in Schedule-1A of the said Act qua instrument of release which in turn refers to a notification dated 19.4.2000 of the State Government of Haryana substituting Article 55. It is, however, conceded that the exception sought to be carved out is qua ancestral property and, secondly, the relationship of brother is, thus, not Chand Parkash 2014.04.11 14:16 I attest to the accuracy and integrity of this document LPA-208-2014 -6- included in the same as undisputedly the property in question is not an ancestral property but is the self-acquired interest of late Yogender Parkash.
For all the aforesaid reasons, we find no ground to interfere in the appeal.
Dismissed.
( SANJAY KISHAN KAUL )
CHIEF JUSTICE
09.04.2014 ( ARUN PALLI)
parkash* JUDGE
Chand Parkash
2014.04.11 14:16
I attest to the accuracy and
integrity of this document