Mr.S.V.L.S.Ranga Rao v. The Secretary to the Government, Commercial Taxes (J1) Dept., Secretariat, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.04.2009CORAMTHE HONOURABLE MR. JUSTICE K.VENKATARAMANWrit Petition No.23263 of 2008and M.P.Nos.1 and 2 of 2008Mr.S.V.L.S.Ranga Rao... Petitioner vs.1.The Secretary to the Government, Commercial Taxes (J1) Dept., Secretariat, Chennai-9.2.The Sub Registrar, (Before the District Registrar), T.Nagar @ Saidapet Sub RegistrarOffice, No.9, Gennies Road, Saidapet, Chennai-15.... Respondents Writ petition has been filed under Article 226 of theConstitution of India to issue a writ of certiorarified mandamus tocall for the records of the second respondent dated 07.08.2008 inproceedings No.776/08 and quash the same and further direct therespondents to treat the deed of release executed by the stepmotherof the petitioner in favour of the petitioner and his brother dated13.11.2007 to be classified as transaction between the family membersas per Article 58 of Schedule-I of Indian Stamp (Tamilnadu Amendment)Act 31 of 2004.For petitioner:Mr.V.Srinivasa BabuFor respondents:Mr. L.S.M.Hasan Fizal, G.A. O R D E RBy consent, the main writ petition itself is taken up forfinal disposal. 2. The petitioner has come forward with the present writpetition challenging the proceedings of the second respondent dated07.08.2008 with a further direction directing the respondents totreat the deed of release executed by his stepmother in his favourand his brother dated 13.11.2007 to be classified as transactionbetween the family members as per Article 58 of Schedule-I of IndianStamp (Tamilnadu Amendment) Act 31 of 2004. https://hcservices.ecourts.gov.in/hcservices/

3. The short facts which are necessary for the disposal ofthe writ petition, are set out here under:-3.1. The property bearing No.58/A, Block No.109,T.S.No.4816, R.S.No.41 Part, in T.Nagar Village, measuring an extentof 9 Grounds and 964 sq.ft. along with immovable properties atvarious places in Andhra Pradesh were acquired by the petitioner'sgrandfather late S.V.Ranga Rao, who died intestate on 18.07.1974leaving behind his wife Samarla Leelavathi and his only son KoteswaraRao to inherit his properties. During the life time of SamarlaLeelavathi, she had executed a Will dated 15.11.1999 in respect ofher 5/8th share and she died 25.04.2000. On her death, KoteswaraRao, the father of the petitioner and his children, viz., thepetitioner, the other son and daughter acquired their rights in theproperties. After the death of the petitioner's motherS.Vijayalakshmi, his father married one Samarla Manjula in the year1988 and thereafter, the said Koteswara Rao died intestate on18.07.1989 leaving behind his stepmother Samarla Manjula and his twosons viz., the petitioner and one S.V.Ranga Rao and daughter AdimulamLakshmi Priya to inherit his undivided shares.3.2. The stepmother Samarla Manjula filed a suit forpartition for allotment of 5/32nd share of various propertiesacquired by Koteswara Rao in O.S.No.19 of 1997 before the AdditionalSenior Civil Judge at Eluru, which ended in a compromise, wherein,she was allotted 5/32nd share in 9 Grounds and 964 sq.ft.approximately 1-1/2 Grounds at New No.58/A, Block No.109,T.S.No.4816, R.S. No.41 Part in T.Nagar Village apart from otherproperties. 3.3. The stepmother Samarla Manjula had no issues and outof love and affection, she had executed a deed of release, releasingher right, title and interest over her undivided 5/32nd share in theproperty referred to above in favour of the petitioner and hisbrother on 13.11.2007 before the second respondent office. The stampduty had been paid as per Article 58 Schedule-I of the India Stamp(Tamilnadu Amendment) Act, 31 of 2004 apart from a sum of Rs.2,000/-as registration fees.3.4. The second respondent has kept the said deed aspending document and withholds the same without referring it to theCollector for adjudication under Section 31 and Section 47 (A) of theStamp Act.3.5. On 02.08.2008, the second respondent issued a noticecalling upon the petitioner to pay deficit stamp duty together withdeficit registration fees. The said notice was received by him onlyon 09.08.2008. Challenging the said notice, the petitioner preferreda writ petition in W.P.No.21625 of 2008 before this Court. However,in the meantime, the second respondent has passed the impugned orderdated 07.08.2008 under Section 40(1)(b) of the Stamp Act calling uponhim to pay the deficit stamp duty. Hence, the petitioner has https://hcservices.ecourts.gov.in/hcservices/ withdrawn the writ petition in W.P.No.21625 of 2008 with liberty tochallenge the final order dated 07.08.2008.3.6. As per Article 58 Schedule – I of the Indian Stamp(Tamilnadu Amendment) Act, 31 of 2004, 'mother' shall include notonly adoptive mother, but also stepmother. While so, the secondrespondent without considering the same, had directed the petitionerto pay deficit stamp duty together with deficit registration fees bythe impugned order dated 07.08.2008. Hence, the petitioner has toapproach this Court by filing the present writ petition challengingthe said order.4. Learned counsel appearing for the petitioner wouldmainly contend that --(i) the second respondent ought to have referred the matter foradjudication before the Collector as contemplated under Section 31 ofthe Indian Stamp Act. The Collector thereupon shall examine andenquire for impounding such document under Section 33 and shall passfinal orders under Section 49(1)(b) of the Stamp Act. In the case ofhand, the second respondent has passed the impugned order directingthe petitioner to pay the deficit stamp duty as well as registrationfees. Thus, the impugned order had been passed by the secondrespondent, who has no jurisdiction to do so;(ii) the second respondent has no manner of right to keep thedocument with him without releasing the same even though generaldirections have been given by this Court in a judgment reported in2001 2 M.L.J. 458, wherein it has been specifically held that thedocuments which have been submitted, have to be registered and handedover to the concerned person and if any deficit stamp duty has to bepayable, the matter has to be referred under Section 41 -A of theStamp Act by making an endorsement in the said document to thateffect.5. On the other hand, learned Government Advocateappearing for the respondents, on instructions, would submit that thesecond respondent who has acted as a District Registrar, is empoweredto pass orders directing the parties to pay the deficit stamp dutyand deficit registration fees as contemplated under Section 40(1)(b)of the Stamp Act. The notification to the effect would indicate thatit is not correct to state that the second respondent has nojurisdiction to do so. As per Explanation to Article 58 of Schedule-I of the Indian Stamp (Tamilnadu Amendment) Act, 31 of 2004, father,mother, husband, wife, son, daughter, grandchild, adoptive father,adoptive mother, adopted son and adopted daughter have been includedas family members. Further, by the letter of the first respondentdated 10.08.2006, brothers and sisters have also been included asfamily members. While so, the document in question had been executedby the stepmother in favour of the petitioner and his brother and thesame cannot be considered as an execution by the family members andhence, the deficit stamp duty and registration fees as required, have https://hcservices.ecourts.gov.in/hcservices/ to be paid by the petitioner.6. I have considered the submissions made by the learnedcounsel appearing for the petitioner and the learned GovernmentAdvocate appearing for the respondents.7. The facts which are not disputed are that --(i) the petitioner's grandfather one S.V.Ranga Rao diedintestate on 18.07.1974 leaving behind his wife Samarla Leelavathiand only son Koteswaran as his legal heirs;(ii) Samarla Leelavathi had executed a Will dated15.11.1999 in respect of her 5/8th share and she died on 25.04.2000.On her death, the petitioner's father, the petitioner, his brotherand sister acquired the properties;(iii) after the demise of the petitioner's motherS.Vijayalakshmi, his father married one Samarla Manjula in the year1988;(iv) the petitioner's father Koteswaran died on 18.07.1989intestate leaving behind Samarla Manjula, the petitioner, his brotherand his sister to inherit the common undivided shares;(v) Samarla Manjula filed a suit for partition forallotment of her shares over the immovable properties before thelearned Additional Senior Civil Judge at Eluru in O.S.No.19 of 2007which ended in a compromise wherein she was allotted 5/32nd share inthe property, which is subject matter in this writ petition;(vi) Samarla Manjula had executed a deed of releasereleasing her right over the said properties in favour of thepetitioner and his brother;(vii) notice was issued by the second respondent dated02.01.2008, to pay the deficit stamp duty as well as deficitregistration fees;(viii) against the demand notice dated 02.01.2008, thepetitioner preferred a writ petition in W.P.No.21625 of 2008; (ix) in the meanwhile, the second respondent had passedthe impugned order dated 07.08.2008 under Section 40(1)(b) of theStamp Act calling upon the petitioner to pay the deficit stamp dutytogether with deficit registration fees;(x) in view of passing of the impugned order, W.P.No.21625of 2008 was withdrawn with liberty to challenge the final order.8. Learned counsel appearing for the petitioner wouldcontend that as per Explanation to Article 58 of Schedule-I of the https://hcservices.ecourts.gov.in/hcservices/ Indian Stamp (Tamilnadu Amendment) Act 31 of 2004 (herein afterreferred to as Act), the word "family" shall include the stepmotheralso. According to the learned counsel, though father, mother,husband, wife, son, daughter, grandchild, adoptive father, adoptivemother, adopted son and adopted daughter alone were named as familymembers in the explanation to the said Article and later by theGovernment letter dated 10.08.2006 brothers and sisters wereincluded as family members, it is not an illustrative one andexhaustive one thereby a strict appliance to be made. Further more,according to the learned counsel appearing for the petitioner, whenadoptive mother could be considered as a family member, equally, thestepmother should also be considered as a family member.9. However, learned Government Advocate appearing for therespondents would contend that a strict meaning should be taken forthe word 'family' and Explanation to Article 58 of Schedule I of thesaid Act gives the list of persons who could be called as 'familymembers'. Since the stepmother is not one of the categories asdefined in the explanation for the word 'family', the petitioner hasto pay the deficit stamp duty for the document executed by thestepmother in favour of the petitioner and his brother.10. However, I am unable to accept the contentions of thelearned Government Advocate appearing for the respondents. ThoughExplanation to Article 58 of Schedule I of the said Act defines thepersons coming under the word 'family', it could be said that it isonly an illustration and not an exhaustive one. Therefore, strictmeaning cannot be construed so as to include only those persons whohave been named as 'family members'. Further more, when adoptivemother and adoptive father could be included as members of thefamily, it is neither legal nor logic to say that the stepmothercould not be construed as a family member.11. In the Tamil Nadu Buildings (Lease and Rent Control)Act, 1960, (Tamil Nadu Act XVIII of 1960), members of the family inrelation to the landlord is defined under Section 2 (6-A) of thesaid Act. There, it is stated that the members of the family of thelandlord means his spouse, son, daughter, grandchild or dependentparent. The question whether the daughter in law would be construedas a member of the family arose before this Court in Civil RevisionPetition Nos.1647, 1648, 1650 and 1651 of 1990. It has been answeredby this Court in the said revisions that the daughter-in-law couldalso be construed as a family member and the same is reported in1991-2- L.W. 692 – Madhurani Gupta and another v. Shairu Bux Damaniand another. Considering the various pronouncement of the Hon'bleApex Court as well as this Court, it has been held thereon that theword 'family' is one of the great flexibility; sometimes the word'family' in a broad sense would mean all those who are connected byblood relationship or marriage and therefore, are to be considered asbelonging to the family. Thus in Section 2(6-A) of the said Act,member of the family of a landlord has been defined to includespouse, son, daughter, grandchild or dependent parent and the https://hcservices.ecourts.gov.in/hcservices/ daughter-in-law was also considered as a family member. Thus, thesaid illustration given thereunder may not be construed strictly. Itdepends upon the facts and circumstances of each case. In the givencase on hand, excluding the stepmother that she is not a familymember could be farfetching. The object of the legislation and theintent in which the word used are relevant.12. Stepmother is one of the Class I heirs as per HinduSuccession Act, 1956 and she is a family member on par with themother. This position cannot be disputed by the respondents. Whenstepmother could be classified as Class I heir as per HinduSuccession Act, 1956, there may not be any reason in excluding herfor the purpose of explanation to Article 58 of Schedule I of thesaid Act while construing who are all the members of the family. Asstated already, the illustration given thereon in the explanation toArticle 58 of Schedule I of the said Act cannot be an exhaustive oneso as to exclude the other persons even though they could beconstrued as family members.13. In view of the reasons stated above, the othercontentions raised by the learned counsel appearing for thepetitioner may not be necessary to be considered in this writpetition.14. Considering the above facts and circumstances, I aminclined to set aside the impugned order of the second respondentdated 07.08.2008 and the writ petition stands allowed. Therespondents are directed to treat the deed of release executed by thestepmother of the petitioner in favour of the petitioner and hisbrother dated 13.11.2007 to be classified as transaction between thefamily members as per Article 58 of Schedule-I of Indian Stamp(Tamilnadu Amendment) Act 31 of 2004 and release the document infavour of the petitioner without insisting for the payment of deficitstamp duty and the deficit registration fees. The second respondentis directed to return the document to the petitioner, if it isotherwise in order, without insisting for the deficit stamp duty anddeficit registration fees, within two weeks from the date of receiptof a copy of this order. No order as to costs. Consequently,connected miscellaneous petitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sbi To 1.The Secretary to the Government, Commercial Taxes (J1) Dept., Secretariat, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/

2.The Sub Registrar, (Before the District Registrar), T.Nagar @ Saidapet Sub Registrar office, No.9, Gennies Road, Saidapet, Chennai-15.+ 1 CC to Government Pleader,SR.16282+ 1 CC to M/s.V.Srinivasababu,Advocate,SR.15741 W.P.No.23263 of 2008KJI(CO)EM/21.4