Andhra HC (Pre-Telangana)
Media Anasuyamma And Another vs Choppela Lakshmamma on 29 January, 1991
Equivalent citations: AIR1992AP183, 1991(1)ALT430, AIR 1992 ANDHRA PRADESH 183, (1991) 1 APLJ 370, (1991) 1 ANDH LT 430, (1991) 1 ANDHWR 276, (1991) 2 CURCC 624
ORDER Jagannadha Rao, J.
1. This revi-sion has been referred to a Division Bench by one of us (Eswara Prasad, J), inasmuch as the correctness of the decision of Radhakrishna Rao, J. in A. Chandrasekhar v. R. Narasimha Reddy(1990) 1 Andh LT 264 was questioned before the learned Judge. The point relates to the retrospectivity of the Andhra Pradesh Stamp (Amendment) Act, 1986 (Act. 17/ 1986). Incidentally, the correctness of the decision of Syed Shah Mohammed Quadri, J.
in K. Obaiah v. T. Venkatamma, (1988) 2 Andh LT 435 : (AIR 1989 NOC 174) as to what is a 'case decided' also has arisen.
2. The petitioners in the revision are the defendants in O. S. No. 156 of 1981. The 1st defendant is the daughter of one Subbaiah. The plaintiff is the sister of Subbaiah. The plaintiff claimed the suit property under a registered settlement deed dated 25-8-1974. The 1st defendant contended that Subbaiah executed a registered settlement deed dated 23-5-1979 in her favour. The plaintiff's suit is for declaration of title and possession. During the course of the trial, the 1st defendant sought to file an unregistered deed dated 4-9-1959 said to be a Khararnama under which Subbaiah is said to have agreed to settle the suit property in favour of the 1st defendant in consideration of some other property said to have been given to him by 1st defendant. The plaintiff's counsel objected and relied upon the judgment of Radhakrishna Rao, J. above referred to.
3. The learned District Munsif felt bound by the said decision of Radhakrishna, Rao, J. for holding that the date of execution of the document was not the criterion for purpose of stamp duty and that the date of presentation of the document as evidence was relevant. He then held that under the latter part of Sec. 2(24)(c) an agreement to settle property was also liable to stamp duty and rejected the deed dated 4-9-1959 as inadmissible. It is this order that is questioned in this revision.
4. It is contended by the learned counsel for the revision petitioners that the decision of this Court in A. Chandrasekhar's (1990 (1) Andh LT 264) (supra) case is not correct and requires reconsideration. It is contended that every document is liable to a stamp duty in accordance with the provisions of the Indian Stamp Act, 1899, as in force on the date of execution of the document irrespective of the date of presentation or marking it in court. Learned counsel also submits that the document does not require any stamp duty either under the unamended provisions of the Stamp Act or after the amendment by the Andhra Pradesh Act 17 of 1986. Even assuming that the document requires stamp duty, only such stamp duty or penalty as was payable on 4-9-1959 alone would be payable and not such stamp duty or penalty as is payable after the commencement of Andhra Pradesh Act 17 of 1986.
5. On the other hand, it is contended by the learned counsel for the respondent-plaintiff that the decision of the lower court is hot a "case decided" in view of the judgment of Syed Shah Mohammad Quadri, J. in K. Obaiah's (AlR 1989 NOC 174)(AndhPra) (supra) case and that in any event, the document is inadmissible as it requires stamp duty and registration whether under the unamended Act or after the amendment of 1986. Learned counsel also placed before the Court relevant rulings relating to retrospectivety or otherwise of the law relating to stamp duty whenever there is any change in the statute relating to stamp duty.
6. The first question that falls for consideration is whether an instrument, which has been duly stamped, according to the law in force on the date of its execution, can be said to be inadmissible by application of any subsequent amendment to the statute relating to stamp duty, such as the A. P. Amending Act 17 of 1986. Section 2(6) of the 1899 Act defines the word 'chargeable' as under :
"'chargeable' means as applied to an instrument executed or first executed after the commencement of this Act, and, as applied to any other instrument, chargeable under the tew in force in India when such instrument was executed or, where several persons executed the instrument at different times, first executed.".
Section 2 (11) defines the word 'duly stamped', and states as follows:
"'Duly Stamped1 as applied to an instrument means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India."
7. Section 3 deals with instruments chargeable with duty which stales that subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with the duty of the amount indicated in that schedule as the proper duty therefore, respectively, that is to say :
a) every instrument mentioned in that schedule which, not having been previously executed by any person, is executed in India on or after the first day of July, 1899;
b) every bill of exchange payable otherwise than on demand or promissory note drawn or made out of India on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiated in India; and
c) every instrument, (other than a bill of exchange or promissory note) mentioned in that schedule, which, not having been previously executed by any person, is executed out of India on or after that day, relates to any property situate, or to any matter or thing done or to be done, in India and is received in India.
Provided that, except as otherwise expressly provided in this Act, and notwithstanding anything contained in clause (a) or (c) of this section or in Schedule I, the amount indicated in Schedule I A shall, subject to the exceptions contained in that schedule, be the duty chargeable on the following instruments :
(aa) every instrument, mentioned in Schedule I-A as chargeable with duty under that schedule, which, not having been previously executed by any person, is executed in the State of Andhra Pradesh on or after the first day of April 1922:
(bb) every instrument, mentioned in Schedule I-A as chargeable with duty under that schedule, which not having been previously executed by any person, is executed out of the State of Andhra Pradesh on or after the first day of April, 1922 and relates to any property situated or to any matter or thing done or to be done in the said State and is received in the said State.
Provided also that no duty shall be chargeable in respect of:
(1) .....
(2) .....
Section 33 (2) which deals with impounding of documents also speaks of stamp duty required "when such instrument was executed or first executed".
8. It will be noticed from the above said provisions of the Act that the criterion is the date of execution of the document for the purposes of the document being chargeable and be treated as duly stamped. The provisions of Section 2(6), 2(12) and 3 of the Act: 1899 show that it is the date of execution of I the document and not the date of presentation into Court that is relevant for purposes of stamp duty payable on the instrument.
9. The Andhra Pradesh Amending Act XVII of 1986 is an Act further to amend the Indian Stamp Act, 1899 and proceeds to amend certain provisions of the Central Act II of 1899, as also Schedule I-A of the principal Act of 1899. There is no provision in the Amending Act making it expressly retrospective, in the sense, of applying the provisions of the Amending Act of 1986 to instruments executed before 16-8-1986, the date on which the Amending Act came into force. It is well-settled that every statute and particularly a statute relating to taxation is not to be treated as retrospective in application unless the Amending Act discloses such an intention either expressly or by necessary implication. Fiscal legislation imposing liability is generally governed by the normal presumption that it is not retrospective (Interpretation of Statutes by G. P. Singh, 4th Edn. 1988, p. 280).
10. The principle that it is only the date of execution that is relevant for purposes of stamp duty is laid down in several decisions. In Narayanan Chetti v. Karuppathan (1881) ILR 3 Mad 251, a Division Bench of the Madras High Court consisting of Innes and Muttusami Ayyar, JJ. were dealing with an unstamped promissory note executed when the General Stamp Act, 1869 was in force. Holding that the instrument was not admissible under the General Stamp Act, 1869 as a promissory note, the trial court dismissed the suit. On revision under Section 622 of the old Civil Procedure Code, it was contended that the instrument came within the definition of the word 'bond' under the Stamp Act of 1879 and could be admitted in evidence on payment of penalty. It was contended that though the instrument was a promissory note, according to the definition in the Stamp Act of 1879, the same could be treated as a 'bond' under the Act of 1879 and treated as such and admitted in evidence on payment of penalty. The argument was that the Court must look to the Act in force on the date of presentation of the instrument. Reliance was placed on S. 34 of the Stamp Act of 1879 which states that "no instrument, chargeable ..with duty, shall be admitted in evidence for any purpose by any person having by law or by the 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". The Court then referred to the definition of the words 'Duly stamped' in S. 3(10) as 'stamped, or written upon paper bearing an impressed stamp, in accordance with the law in force when such instrument was executed or first executed' and held that the promissory note was not duly stamped according to the law in force on the date of its execution, namely, under the General Stamp Act, 1879 and that it could not be made admissible by treating it is a 'bond' as defined under the Act of 1879. Applying the proviso to S. 34 it was clearly held therein that the levy of penalty under the proviso to S. 34 of the 1879 Act would arise only when there was neglect in failing to affix the proper stamp at the time of execution. There would be no justification for the levy of a penalty on account of the increased stamp duty leviable under the Act in the force at the time of 'presention' over that leviable under the Act in force at the time of execution. The levy of stamp duty shows that the date of 'execution' is that which is regarded in the use of the word 'chargeable' and that, that word did not mean 'chargeable' under the later Act of 1879, but 'chargeable' under the Act in force on the date of execution. On that basis the revision was dismissed.
11. The above view was followed in a subsequent Full Bench decision of the Madras High Court in Reference under Stamp Act, S. 46 (1882), (1882) ILR S Mad 394 on a reference from the Board of Revenue under Section 46 of the Indian Stamp Act, 1879. The Full Bench consisting of Innes, Kernan and Muttusami Ayyar, JJ. reiterated, that according to the definition of the word 'chargeable' in Section 3(5) of the 1879 Act and also the word 'duly stamped', to determine whether any penalty is due upon a document executed prior to the Act, it is necessary to look to the Act in force at the date of 'execution' of the instrument, in order to see whether the document was 'duly stamped' and what is 'chargeable' as duty wholly unpaid or so deficient duty. The Full Bench also referred to the provisions of Sections 34 and 37 of the Act of 1879 as to the procedure to determine the amount of penalty to be levied on all documents not duly stamped, whether executed before or after the commencement of the 1879 Act. That procedure required that the stamp duty chargeable, i.e., originally payable at the date of execution and not paid, shall be levied, together with a penalty of only Five Rupees except in cases in which ten times was payable, if the proper duty originally payable, or the deficient portion thereof, exceeds Five Rupees, the penalty to be levied is a penalty of a sum equal to ten times such duly or portion. Thus, in the case of a document executed in 1869 in which the stamp duty properly payable at the date of its execution was, say, 100 rupees and the stamp used was Rs. 99-8-0, the amount to be levied on presentation, after Act 1 of 1879 came in force, would be a 8 annas Plus 5 rupees penalty, but supposing that the stamp used was ony 90 rupees, the amount to be levied on presentation would be 10 rupees, deficient duty, plus 100 rupees being ten times that deficient duty. Similarly, if the document were wholly unstamped, the amount to be levied would be 100 rupees, plus 1,000 rupees, being ten times the duty. That the stamp duty payable will be according to the law in force on the date of execution is also accepted by a Full Bench of the Rajasthan High Court in Nanga v. Dhannalal, . For the aforesaid reasons we are of the view that proper stamp duty payable on an instrument-will be duty payable as on the date of the execution of that instrument and the same applies to the provisions of the Indian Stamp Act, 1879, as amended from time to time in Andhra Pradesh. Accordingly, the provisions of the Indian Stamp (A.P.) Amendment Act, 1986, would be applicable only in respect of documents executed on or after 16-8-86, that is, the date of commencement of the said Act, as per G. O. 994 Revenue dated 14-8-86. The said provisions of the Amending Act would not apply to documents executed before the said date.
12. In A. Chandrasekhar v. R. Nara-simha Reddy, (1990-1 Andh LT 264) (supra) the learnd Judge held that a Memoranda of partition executed before 16-8-86 would still be chargeable to duty according to the amendment contained in S. 2(16) of the Act, inasmuch as with effect from 16-8-86 the definition has been enlarged to include Memoranda of partition also. The said decision was rendered without adverting to the relevant principles of law and provisions mentioned above, which clearly show that the stamp duty on instruments is payable according to law in force at the date of execution. We have already stated that there is nothing in the Amending Act, Act 17 of 1986, either expressly or by necessary implication which treats the Act as retrospective. We respectfully overrule the said judgment.
13. The next question is whether the order of the lower court not admitting the document dated 4-9-1959 in the evidence of D. W. 1 amounts to a "case decided". It is true, in K. Obaiah's, (AIR 1989 NOC J74) (Andh Pra) (supra) case it has been held that the rejection of a sale deed as inadmissible in evidence on the ground of non-registration is not a "case decided" for the purposes of Section 115, C.P.C. For that proposition, the learned Judge placed reliance on a judgment in Nandkishore v. Kishan Chand, decided by R. S. Pathak, CJ (as he then was) and on another judgment of Punjab & Haryana High Court in Sagarmal v. Gulab Chand, AIR 1978 Punj & Har 251.
14. Our attention has, however, been drawn to the decision of a learned single Judge of this Court, Ananthanarayana Ayyar, J. in Santakumari v. Suseela Devi, to the contrary. Therein, following the judgment of the Madras High Court in Devasikamani v. Andamuthu Gounder, (1955) 1 Mad LJ 457, the learned Judge held that the question as to whether a document requires stamp duty and penalty could gone into in a revision and for that purpose the Court could go into the question whether the document was an instrument of partition or not. The above decision of Anantanarayana Ayyar, J. was not brought to the notice of the learned Judge who decided K. Ibaiah v. T Venkatamma, (AIR 1989 NOC 174) (Andh Pra) (supra).
15. As to the meaning of the word ' case decided' it is necessary to refer to two decided cases of the Supreme Court. The first one is in S. S. Khanna v. F. J. Dhilion, . In that case it was held that:
"The expression 'case' is not defined in the Code, nor in the General Clauses Act. It is undoubtedly not restricted to a litigation in the nature of a suit in a Civil Court, It includes a proceeding in a Civil Court in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable."
"The meaning of the expression 'case' must be sought in the nature of the jurisdiction conferred by S. 115, and the purpose for which the High Courts were invested with it."
"The expression 'case' is a word of comprehensive import; it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court."
It was observed that:
"to interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpe-
tration of gross injustice. The expression 'case' includes a suit; but in ascertaining the limits of the jurisdiction of the High Court there would be no warrant for equating it with a suit alone.
.....the expression 'case', includes a part of the case.
.....revisional jurisdiction can be exercised irrespective of whether an appeal lay on the ultimate decree or order passed in the suit."
In that case, the trial Court held that the suit was not maintainable and it was held that the said order should be treated as a case decided.
16. The above decision was applied in Baldevdas v. Filmistan Distributors, . In that case, the Court overruled the objection to a question put to a witness as to the legal relationship between the parties arising out of a certain document. The trial Court held that the question was not a bar and could be put to, since it was not decided in a previous decree between the parties. On revision, it was held that :
"the expresson 'case' is not limited in its import to the entirety of the matter in dispute in an action. The expression 'case' is a word of comprehensive import; it includes a civil proceeding and is not restricted by anything contained in S. 11, C.P.C. to the entirety of the proceedings in a civil court.
But every order of the court in the course of a suit does not amount to a case decided."
The Supreme Court then observed that a case may be said to be decided if the Court "adjudicates" for the purpose of the suit "some right or obligation" of the parties in controversy and that every order in the suit cannot be regarded as a case decided within the meaning of S. 115, C.P.C. Overruling an objection to a question put to a witness and allowing the same to be put to, no case was decided.
17. The abovesaid decisions of the Supreme Court were further explained by Pathak CJ (as he then was) in a Division Bench in Ram Das v. Subhash Bakshmi, . After elaborate consideration of the provisions in S. 115, CPC and certain basic principles of law, it was observed that "a case is decided" when there is an adjudication on the rights or obligations of the parties' in controversy. Such adjudication may be in the nature of a decision expressly deciding those rights or obligations. For example, the entire suit or appeal may be disposed of or a distinct part of the suit or appeal may be disposed of finally so far as the subordinate Court is concerned." Having said so, Pathak CJ (as he then was) made the following significant observation:
"Or, the adjudication may be such as to have the necessary effect of deciding those rights or obligations."
The case before the learned Judges related to an application under S. 10, CPC which has been allowed by the trial Court. It was held that the order amounts to a case decided on the ground that to the extent that the court held that issues were the same in the two suits, there was adjudication of rights or obligations. Adverting to S. 115, CPC, Pathak CJ (as he then was) further observed in the same ease that the purpose of Section 115, C.P.C. was to remove jurisdictional errors from the record of cases so as to arrive at a "true adjudication" of the rights or obligations of the parties in the controversy. If there was no such true adjudication, it would amount to a case decided and could be interfered with under Section 115, C.P.C.
18. For the aforesaid reasons, we are not inclined to agree with the view taken by Quadri, J. in K. Obaiah's (AIR 1989 NOC 174) (Andh Pra) (supra) case that a document presented by the parties is treated as inadmissible either on the ground of stamp duty or registration or both. Though there is no express adjudication on the rights of the parties, the resultant effect is that the parties are precluded from claiming title based on the said document. Such a situation, in our view, is covered by the observations of Pathak, CJ (as he then was) in Ramdas's (supra) case extracted above, which shows that it is not always necessary that rights or obligations must be expressly decided. It is sufficient if an adjudication that has been made would have the "necessary effect of deciding these rights or obligations". It is true that the learned Judges has referred to another judgment of Pathak C.J. (as he then was) in Nand Kishore v. Kishan Chand (supra). We find that it was decided there that rejection of a document would amount to a decision of part of the issue arising in a suit and it would not amount to a 'case decided' Shah Prabhudas v, Coparceners Shaw Family, , was distinguished as a decision where the rejection of the document resulted in a disposal of the entire suit and amounted to a case decided. We are of the view that the abovesaid observations of Pathak, C.J. (as he then was) in Nand Kishor's case (supra) that unless all the issues in a suit are decided there is no 'case decided' run contrary to the observations of the same learned Judge in the Division Bench case in Ram Das v. Subhas Bakshi and also run contrary to the two decisions of the Supreme Court Quadri, J. also referred to Sagarmal v. Gulabchand, AIR 1978 Punj & Har 251. That case was decided by Narula, C J., wherein it was held that an order "admitting" an unregistered document in evidence overruling an objection was not a 'case decided'. For the purpose of this case, it is not necessary to decide whether the rejection of an objection as to the admissibility of a document on the ground of stamp duty would amount to a 'case decided.'
19. Coming to the facts of the case, once the decision of Radhakrishna Rao, J. is overruled, the main basis for the rejection of the document by the learned District Munsif goes. As to the other finding that the document amounted to a settlement deed and required registration also, it will be open to the affected party to question the same in appeal against the decree. The decision rendered by him as to the nature of the deed dated 4-9-1959 and as to his finding that it amounts to a settlement deed, and therefore requiring stamp duty or registration, will be open to altack in the event of an appeal being filed against the Judgment and decree in the suit. We need not go into the correctness of that part of the decision of the learned District Munsif.
20. Alternatively, it will be open to the first defendant, if she is so advised, to pay the necessary stamp duty as per law in force on 4-9-59. So far as penalty is concerned, it will be the penalty payable on the date of the presentation of the document. It is open to the plaintiff to attack the findings in appeal that may be filed against the decree and Judgment. The C.R.P. is disposed of accordingly. No costs.
21. Order accordingly.