Indian Kanoon - Search engine for Indian Law

11. It is admitted by the petitioners themselves that two mutual release deeds were executed between the co-owners and this is exactly what is done in a partition. The parties have chosen to execute two release deeds, to evade payment of stamp duty on a partition which is much more than a release. The documents Nos. 414 and 415/74/1 were registered at Registrar's Office, Palayamkottai, and not at Registrar's Office, Tuticorin, as alleged by the petitioners.

12. It is further stated in the counter-affidavit that it was the Accountant General Tamil Nadu, was (who) pointed out this and the District Registrar, Palayamkottai, was asked to submit his remarks. The District Registrar, Palayamkottai, in his letter No. K. Dis. 13681/N1/76 dt. 28-9-1978 reported the details of the case. Then the Inspector General of Registration, as departmental head, passed orders to prosecute the parties under Section 27 read with Section 64 of the Stamp Act, 1899.

19. According to Mr. N. T. Vanamamalai, learned counsel for the petitioners in the transaction now in question, petitioners 1 and 2 relinquished their claim against a specified property in favour of the petitioners 3 to 5 and vice versa. In view of the said decision the two documents in question can be characterised only as release deeds and not otherwise.

20. In the Full Bench decision referred to above in , it is observed as follows : --

"..... It is true that what name the parties choose to give to an instrument cannot be decisive, or even indicative of the true nature of the instrument for purposes of stamp duty. But this rule does not mean that the revenue authority is empowered to go behind the recitals and terms of the document before it and hold that the object of the transaction was something different from what the document discloses and therefore the document should be deemed to be that which it is not. We do not think that the revenue authorities can, ignore the terms of the document which is before them for adjudication and base their decision on the terms of some other collateral instrument....."

38. It is a fundamental principle of law of alienation that when once a partition has taken place in a family and that is acted upon, even if it is an oral one, thereafter there is no question of any release of any right with respect to that portion of the allotted property can take place and that property which is allotted to the share of a person in partition can only be alienated by way of settlement or any alienation known to Transfer of Property Act and not by way of any release or any right in it. When once a partition takes place in a family, there is nothing remaining in the property of the joint family which had been so partitioned and which lies in the hands of an allottee for releasing the right in the share of property that is allotted in the partition. Only if a property which is not capable of being partitioned is held in common by the persons, who got partition as members of a joint family, there can be a release of the interest in the said common property which is not capable of being partitioned becoming a subject matter of release. In the instant case, there is no such kind of any release of interest by any of the sharers with respect to the property which was considered indivisible in partition. A careful reading of the two deeds which are called as release deeds clearly show that the documents are partition deeds though they are described as release deeds by the parties concerned.

43. It is the specific contention of the respondents that the petitioners have chosen to execute two mutual release deeds to evade payment of stamp duty on a partition which is much more than a release. The document Nos. 414 and 415/74/1 were registered at Registrar's office, Palayamkottai, and not at Registrar's Office, Tuticorin, as alleged by the petitioners. It was the Accountant General, Tamil Nadu, who pointed out this and the District Registrar, Palayamkottai, was asked to submit his remarks. These are. all inter departmental actions and for which no notice need be given to the petitioners. It is only at the final decision arrived at by the Department, the District Registrar, Palayamkottai, in his letter No. K. Dise 13681/N1/76 dt. 28-9-1976 reported the details of the case. Then tne Inspector General of Registration, as department head, "passed orders to prosecute th'e parties under Section 27 read with Section 64 of the Stamp Act, 1899. The question of issuing notice to the parties will arise only when the District Registrar takes action to file the case under Section 27 read with Section 64 of the Indian Stamp Act, 1899 and at that stage it is seen that the petitioners were given due notice by the District Registrar, Tuticorin, in his proceedings No. 1910/81/79 dt. 28-11-1979.