Allahabad High Court
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD WRIT - C No. - 22913 of 2009 Manoj Kumar And Others Addl. Commissioner J-Ii And Others Versus .....Petitioner(s) .....Respondent(s) Counsel for Petitioner(s) Counsel for Respondent(s) : A.K. Rai, V.K. Rai, Vishnu Kr. Singh : C.S.C. Court No. - 7 HON'BLE PIYUSH AGRAWAL, J.
Legal Reasoning
support of his submissions, he has placed reliance on the judgement of this Court in Somansh Prakash & 8 Others Vs. State of U.P. & 3 Others [Writ C No. 5229 of 2021, decided on 20.09.2024]. 7. Learned counsel for the petitioners further submits that the respective parties had come into actual and physical possession of their respective shares of the property even before any written execution of the partition deed was there, which is roughly made and not even duly signed, on the basis of which, the instant proceedings have been initiated and therefore, the same are liable to be set aside. 8. Per contra, learned Standing Counsel supports the impugned orders and submits that the proceedings have rightly been initiated. It is incorrect on the part of the petitioners to submit that there is no written partition deed. He further submits that on the basis of the partition deed, the petitioners have filed mutation application before the authorities for their endorsement in the record, annexed along with the supplementary counter affidavit, which clearly shows existence of partition deed duly signed by all the petitioners and therefore, the proceedings have rightly been initiated. 9. After hearing learned counsel for the parties, the Court has perused the record.
Arguments
1. Heard Shri Vishnu Kumar Singh, learned counsel for the petitioners and Shri S.K. Mishra, learned Standing Counsel for the State - respondents. 2. The instant writ petition has been filed against the impugned order dated 05.03.2009 passed by the Additional Commissioner (Judicial - II), Varanasi Division, Varanasi in Stamp Appeal No. 01/16 of 2008 as well as the impugned order dated 12.09.2008 passed by the Assistant Commissioner of Stamps, Ghazipur in Stamp Case No. 168/41/ACS of 2008-09. 3. Learned counsel for the petitioners submits that against the order dated 10.05.2005 passed by the Assistant Commissioner of Stamps, Ghazipur, imposing deficiency of stamp duty, along with interest and penalty, the petitioners preferred an appeal before the Commissioner, Varanasi Division, Varanasi, which was allowed vide order dated 20.02.2007 and the matter was remanded for deciding the issue afresh. He further submits that after remand, vide impugned order dated 12.09.2008, the Assistant Commissioner determined the deficiency of stamp duty, along with interest and penalty. Aggrieved by the order dated 12.09.2008, the petitioner preferred an appeal, which has been dismissed vide impugned order dated 05.03.2009. 4. Learned counsel for the petitioners further submits that the instant proceedings have been initiated against the petitioners, who are three in number, on the alleged ground that the petitioners have executed a partition deed on 13.01.2003 and on the said premise the proceedings under section 47-A of the Indian Stamp Act were initiated against the petitioners. 5. Learned counsel for the petitioners further submits that the father of the petitioners, Vishwanath, had three houses, namely, house nos. 719, 718 & 717, situated at Qasba - Saidpur, Pargana & Tehsil - Saidpur, District - Ghazipur. The said houses were independently occupied by the petitioners and on the basis of the possession on mutual 2 WRIC No. 22913 of 2009 understanding and oral partition, they remained in their possession and the oral partition was accepted. He further submits that house no. 719 was in possession and occupation of petitioner no. 1 - Manoj Kumar, house no. 718 was in possession and occupation of petitioner no. 2 - Sunil Kumar and house no. 717 was in possession and occupation of petitioner no. 3 - Arvind Kumar. He further submits that an application for mutation was moved, which was signed jointly by the petitioners, but no written partition deed was executed; rather, only on a rough paper, the partition deed was drawn, which was not even signed by the petitioners. 6. He further submits that the mutation application was subsequently withdrawn by the petitioners. Therefore, neither any mutation, nor any partition deed was ever executed in writing. He further submits that the petitioners have occupied their respective shares as per oral settlement. He submits that once the petitioners are in possession of their portion as per the mutual oral settlement, even assuming without admitting that rough partition is there, no adverse inference can be drawn against the petitioners. In
Decision
10. The proceedings against the petitioners have been initiated only on the basis of an application filed by the petitioners for mutation of their names. On the application for mutation of the names of the petitioners, the petitioners signed. Specific fact have been mentioned in the impugned order passed by the Commissioner (Annexure No. 9 to the writ petition), wherein, following observations have been made:- ".... अपीलकतार्गण इस तथ्य से इनकार नही करते है िक उनके िपता से ्ऺाप्त सम्पि्त के अलग-अलग अंश को चौह्दी में दशार्ते हुए उस पर दािखल-खािरज हेतु नगर पंचायत सैदपुर में आवेदन ्ऺस्तुत िकया गया था। उ्व दािखल-खािरज के आवेदन-प्ऴ पर मनोज कु मार व सुनील कु मार व अरिवन्द कु मार के हस्ता्षर मय 3 WRIC No. 22913 of 2009 आलेख व नक्शा बॅटवारा सिहत मौजूद है और इसमें यह िनवेदन िकया गया है िक ्ऺाथर् के िमले हुए िहस्से के अनुसार नाम दजर् िकया जाये। इस ्ऺकार मैं अवर न्यायालय के इस अिभमत से सहमत हूँ िक ्ऺश्नगत आवेदन- प्ऴ स्प्ितः बँटवारा का िवलेख है और स्टाम्प ऐक्ट की धारा-2 (15) में बँटवारे की दी गयी पिरभाषा से आच्छािदत है। भारतीय स्टाम्प अिधिनयम के अनुसूची 1 बी के अनुच्छेद 45 में स्प्ितः अंिकत है िक धारा-2 (15) में बँटवारें की दी गयी पिरभाषा से आच्छिदत है। भारतीय स्टाम्प अिधिनयम के अनुसूची 1 बी के अनुच्छेद 45 में स्प्ितः अंिकत है िक धारा-2(15) के अन्तगर्त आने वाले बँटवारे के िवलेख पर स्टाम्प ्यूटी अनुसूची 1 (ख) के अनुच्छेद 45 के अन्तगर्त देय है। ...." 11. Along with the supplementary affidavit dated 11.01.2022 filed on behalf of the respondent nos. 2 & 3, the aforesaid application has been brought on record at pages 6, 7 & 8. On perusal of the same, there are signatures of all the petitioners, but copy of the partition deed is not there. 12. On a pointed query to the learned Standing Counsel as to why the copy of the partition deed, on the basis of which the present proceedings have been initiated, have not been brought on record, he submits that there was none and only refers to the findings of the impugned order quoted above. 13. Findings have been recorded that उ्व दािखल-खािरज के आवेदन-प्ऴ पर मनोज कु मार व सुनील कु मार व अरिवन्द कु मार के हस्ता्षर मय आलेख व नक्शा बॅटवारा सिहत मौजूद है, which only refers that the application for mutation is duly signed by all the three petitioners, but the partition deed is not stated to be signed by all the petitioners. 14. There is a finding of fact without mentioning the fact that partition deed was duly signed, which has been disputed by the petitioners upto this Court, that there was no partition deed reduced in writing or signed by all the petitioners. The said fact is also proved by itself that there was no partition deed duly signed by the petitioners as the same has not been brought by the State in any of their affidavit filed before this Court. 15. The record shows that the petitioners have occupied their respective shares on the basis of the oral settlement and there was no written/execution of the partition deed. Even assuming that there exists partition deed on a later date, but none of the authorities below has recorded any finding rebutting the submission of the petitioners that they did not occupy their respective shares. Therefore, they do not form part of the co-owners of the property in question at the time of execution of the alleged instrument. 16. This Court in Somansh Prakash (supra) has categorically observed that if the family member on oral settlement divides their shares and occupied their respective shares before execution of the partition deed in writing, they ceased to be co-owners of the property at the time of execution of any family settlement in writing on a later date. 4 WRIC No. 22913 of 2009 17. The issue in hand is also covered by the judgement & order of this Court in Somansh Prakash (supra). 18. In view of the aforesaid facts & circumstances of the case, the impugned orders cannot be sustained in the eyes of law. The same are hereby quashed. 19. The writ petition succeeds and is allowed. 20. The document, if any, impounded shall be released within a period of one month from the date of production of a certified copy of this order. September 22, 2025 Amit Mishra (Piyush Agrawal,J.) Digitally signed by :- AMIT KUMAR MISHRA High Court of Judicature at Allahabad