Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12-12-2007CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.6815 of 19991.S.Thilagavathy2.S.Sivakumar3.S.Sankar4.S.Senthilkumar, (Major).. Petitioners. (Cause title amended and declared4th petitioner as major by MJJ inM.P.No.676 of 2007 in W.P.No.6815of 1999)Versus1.The Chief Controlling RevenueAuthority and Inspector Generalof Registration, Chennai.

The Assistant Inspector General of Registration, North Madras, Chennai.

The Sub-Registrar, Royapuram, Chennai-13... Respondents. Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directingthe Chief Controlling Revenue Authority and Inspector General of Registration, Chennai, the 1st respondent herein to state a caseunder Section 57(1) of the Indian Stamp Act and refer the questionof law set out of the affidavit in para 9 and in para 15 of thepetition, dated 7.9.97 and such other question of law as may ariseout of the order, dated 28.3.97, made in proceedings PMNo.47803/96/03/96 of the 1st respondent. For petitioners: Mr.P.VeeraraghavanFor respondents : Mr.V.Manoharan Government Advocate

O R D E RHeard Mr.P.Veeraraghavan, the learned counsel appearing forthe petitioners and Mr.V.Manoharan, the learned GovernmentAdvocate appearing for the respondents. https://hcservices.ecourts.gov.in/hcservices/

2. It is stated by the second petitioner that the firstpetitioner in the writ petition is his mother and the otherpetitioners are his brothers. The second petitioner's fatherS.Sivaramakrishnan and the petitioners were members of a Hinduundivided family of which the second petitioner's father was the Kartha. The joint family owned a land bearing No.106 L,Thiruvotriyur High Road, Tondairpet, Chennai, comprised inT.S.No.4310/1 (part), New No.4310/98, Block No.81, having anextent of eight grounds and 800 sq.ft and the land and building atNo.106, Thiruvotriyur High Road, Tondairpet, Chennai, with anextent of two grounds and 1603 Sq.ft., besides the agriculturallands in Thottakkadu village in Thanjavur Taluk and District. 3. The second petitioner's father had died intestate, on27.11.1988, and on his death, his mother, S.Sarojini and thesecond petitioner's mother, S.Thilakavathy and the otherpetitioner's became entitled to his undivided 1/4th share in thesaid joint family properties. Each of the petitioners 2 to 4, heldan undivided 1/4th share in the said properties as co-parceners ofthe Hindu joint family. On the death of S.Sivaramakrishnan, eachof the petitioners 2 to 4 owned an undivided 6/20th share in thejoint family properties, while the first petitioner and S.Sarojiniheld an undivided 1/20th share each, in the said properties. Undera deed of partition, dated 30.12.1991, registered as Doc. No.1045/92, in the office of the Sub-Registrar, Royapuram, thejoint family properties described in Schedule-A to the deed hadbeen divided amongst all the legal heirs and the properties in Schedules B to D of the deed, were divided and allotted to thevarious persons concerned, as stated therein.

The deed of partition, dated 30.12.1991, had been preparedon a stamp paper, calculated on the basis of the value throughseparate shares of S.Sarojini and S.Thilakavathy, in respect of B& C Schedule properties and it was presented for registrationbefore the Sub-Registrar, Royapuram, the third respondent herein. After registering, the deed of partition was delivered to thepetitioners. While so, the petitioners have received acommunication, dated 1.6.94, from the office of the thirdrespondent, calling upon the petitioners to pay the deficit stampduty and registration charges amounting to Rs.97,620/-, as pointedout in the report of the Regional Audit Officer of the AccountantGeneral's Office, Chennai in Report No.20/245-1993-94, dated4.11.1993. It had been pointed out by the Regional Audit Officethat each of the petitioners 2 to 4 had been allotted separateshares in the `D' schedule property and therefore, an additionalstamp duty of Rs.97,620/- was payable. The petitioners hadobjected to the payment, by their objections, dated 23.6.94.However, the third respondent, without furnishing the particularsand copies of the report, had sent a communication, dated18.8.1994, confirming the demand for payment of additional stampduty. Therefore, the petitioners had preferred an appeal againstthe said demand, under Section 33-A(3) of the Indian Stamp Act,1899, before the first respondent. https://hcservices.ecourts.gov.in/hcservices/

The first respondent, by a communication, dated 13.3.1995,had directed the second respondent to issue the necessarycertificate, under Section 33-A of the Indian Stamp Act, 1899,after holding an enquiry by giving an opportunity to submit theirrepresentations, as mentioned in their communication, dated24.3.1995. Thereafter, the second respondent had passed a revisedorder, dated 27.3.1996, confirming the certificate issued by himearlier, without holding any enquiry. Therefore, the petitionershad filed an appeal against the said order, dated 23.7.1996,before the appellate authority, the first respondent herein. Thefirst respondent by an order, dated 28.7.97, had dismissed theappeal after receiving a written representation, on 14.7.97, filedon behalf of the petitioners. Challenging the demand for paymentof additional stamp duty and registration charges, as set out inthe order of the second respondent, dated 23.7.96, the petitionershad filed a petition under Section 57(1) of the Indian Stamp Act,1899, before the first respondent, praying for an order to referthe question of law as set out in the petition, to this Court, forrendering an opinion on the same. The first respondent in hisproceedings, dated 17.11.1997, without holding an enquiry, declined to refer the question of law, as prayed for by thepetitioners. The petitioners had received the communication, dated17.11.1997, on 23.8.98. Therefore, they had submitted anotherpetition to the first respondent, along with the decision of this Court, for a fresh consideration. However, the first respondenthad rejected the same, on 11.2.1999, without holding an enquiryand without giving an opportunity to the petitioners. In suchcircumstances, the petitioners have preferred the present writpetition before this Court, invoking Article 226 of the Constitution of India.

At this stage of the hearing of the writ petition, theonly contention raised by the learned counsel appearing on behalfof the petitioners is that the first respondent had refused tostate the case in question, under Section 57(1) of the IndianStamp Act, 1899, even though it involves a question of law. Instead of stating the case, in accordance with Section 57(1) ofthe said Act, the first respondent had passed an order, dated9.1.99, rejecting the petition, dated 29.9.98, submitted by thepetitioners stating that the request of the petitioners cannot beaccepted. No reasons have been given by the first respondent whilepassing the said order. 7. In the counter affidavit filed on behalf of the thirdrespondent, the claims made by the petitioners are denied. It hasbeen submitted that no question of law is involved in deciding thechargeability of the Stamp Duty to the documents in question. Hence, no reference, under Section 57(1) of the Indian Stamp Act,1899, is required. As per Para-7 of the the partition deed, the D-Schedule property is to be enjoyed in equal shares, absolutely. Hence, each share shall be taken into account for chargeability ofstamp duty deeming it as separate share, as per the note to Article 45 of Schedule 1 to the Indian Stamp Act, 1899. https://hcservices.ecourts.gov.in/hcservices/

At this stage of the hearing of the writ petition, it wassubmitted by the learned counsel appearing on behalf of thepetitioners that no individual orders have been issued to thepetitioners till date, demanding an additional stamp duty and theregistration charges, after the impugned order of the firstrespondent had been passed. Therefore, it is prayed that thepetitioners may be given the liberty to challenge such orders, asand when they are issued, notwithstanding the order passed in thepresent writ petition.

The learned counsel appearing on behalf of the respondentshas no objection for this Court passing such an order, grantingliberty to the petitioners as prayed for.

On such submissions being made by the learned counselsappearing on behalf of the parties concerned, this Court is of theconsidered view that the petitioners have not shown sufficientcause or reason for this Court to grant the relief as prayed forin the present writ petition. However, it is made clear that it isopen to the petitioners to challenge the proceedings that may beissued to the petitioners, individually, if so advised, in themanner known to law. With the above observations, this writ petition standsdismissed. No costs. CshSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1.The Chief Controlling RevenueAuthority and Inspector Generalof Registration, Chennai. 2. The Assistant Inspector General of Registration, North Madras, Chennai. 3. The Sub-Registrar, Royapuram, Chennai-13.+ 1 cc to the Government Pleader, SR No.73814W.P.No.6815 of 1999PUR(CO)SR/3.1.2008