Hanuman Prasad Sharma … v. Commissioner Faizabad And Others

Judgment

1. Heard Sri Shobhit Mohan Shukla, learned counsel for the petitioner and learned Standing Counsel for the respondent - State.

2. The instant writ petition has been filed against the order passed by the Assistant Commissioner (Stamp), District Ambedkar Nagar dated

30.04.2001 in Stamp Case No.199 under Section 33/47-A of the Indian Stamp Act, 1899 with respect to agricultural property situated in village Jalalpur Dehat and Village Wazidpur and dwelling house situated in Kasba Jalalpur, District Ambedkar Nagar. Through the impugned order dated 30.04.2001, the Assistant Commissioner (Stamp) has determined the alleged deficiency in the stamp duty to the tune of Rs.5,06,496/- and imposed a penalty of Rs.50,000/- totalling Rs.5,56,496/- has been ordered to be realised from the petitioner. A further request has been made to issue a writ in the nature of certiorari quashing the impugned 2 WRIT - C No. - 1003328 of 2001 order dated 14.06.2001 passed by respondent No.1 contained as annexure-2 to the writ petition as well as order dated 04.07.2002

contained as annexure 6 to the writ petition.

3. Factual matrix of the case is that the petitioner along with his real brothers, namely, Sri Ambika Prasad Sharma, Sri Chandrika Prasad Sharma and Sri Onkar Nath Sharma had inherited certain properties, namely, the dwelling house in Kasba Jalalpur within territorial limit of Nagar Palika, Jalalpur, District Ambedkar Nagar and the grove land situated in village Jalalpur Dehat and Village Wazidpur, Tehsil Jalalpur District Ambedkar Nagar.

4. The petitioner and his brothers are only legal heirs and representative who are entitled to succeed the properties aforementioned left behind by their father late Sri Balbhadra Prasad Mishra, who died in the year 1965.

5. With a view to arrive at a settlement relating to the aforesaid properties, all the four brothers executed a memorandum of family settlement which was got duly notarised on 25.06.1998. By the aforesaid memorandum of family settlement, shares of the brothers were not transferred to each other. As a matter of fact, the said document can only be said to be in recognition of the properties inherited by all the four brothers.

6. On the basis of said memorandum of family settlement, the petitioner along with his brothers, applied for mutation of their names in the records maintained by Nagar Palika, Jalalpur, District Ambedkar Nagar and accordingly, their names were mutated in place of deceased late Sri Balbhadra Prasad Mishra.

7. The petitioner received a notice dated 26.02.2000 from office of Additional District Magistrate (Finance and Revenue), District Ambedkar Nagar requiring him to show cause as to why the deficiency 3 WRIT - C No. - 1003328 of 2001 of stamp duty and consequential penalty be not imposed and realised from him. The petitioner submitted his reply to the said notice on

21.03.2000 and submitted that the memorandum of family settlement was duly notarised and it cannot be said to be a partition deed and as such no stamp duty was payable on the said document. It was also submitted by the petitioner that the said memorandum of family settlement was written only with a view to avoid any conflict between the legal heirs of late Sri Balbhadra Prasad Mishra. Through the said memorandum of family settlement, no transfer of shares had taken place. As such, no deficiency in the stamp duty can be alleged neither any penalty can be imposed on the said document and prayed that the notice issued to him on 26.02.2000 be discharged.

8. The Assistant Commissioner (Stamp) District Ambedkar Nagar without considering the relevant facts and circumstances of the case vide order dated 30.04.2001 determined the deficiency to the tune of Rs.5,06,496 and also imposed a penalty amounting to Rs.50,000/-.

9. Against order dated 30.04.2001, the petitioner preferred a revision to the Commissioner, Faizabad Division, Faizabad (Chief Controlling Revenue Officer under the Act) under Section 56 of the Act. Along with said revision, the petitioner also preferred an application seeking stay of the order dated 30.04.2001, which was rejected vide order dated

14.06.2001.

10. In the order dated 04.07.2002, the Commissioner returned the file of the revision parties to be presented before the Chief Controlling Revenue Authority, Prayagraj, U.P. No one chose to approach the said authority when the writ petition to the original order is pending before this Hon'ble Court.

11. Submission of learned counsel for the petitioner is that impugned order dated 30.04.2001 reveals that respondent No.2 - Assistant Commissioner (Stamp) has treated the memorandum of family 4 WRIT - C No. - 1003328 of 2001 settlement to be a partition deed and has further calculated the valuation of the property and has imposed the deficiency in the stamp duty. The document in question cannot in any manner be termed to be a partition deed and as such no deficiency can be alleged so far as payment of stamp duty is concerned.

12. He next submitted that the Commissioner ought to have allowed the application of stay moved by the petitioner keeping in view the well settled proposition of law that if a person avails the statutory remedy of appeal or revision, the appellate or revisional court should apply its mind in favour of passing the order, staying the order appealed against. Thus, the respondent No.1 has erred in law while passing in the impugned order dated 14.06.2001.

13. He further submitted that respondent No.1 has returned the file on the ground that the court being Chief Controlling Authority does not have remedy to entertain the cases where the value of stamp duty involved in dispute exceeds Rs.5,00,000/-, however, the pecuniary jurisdiction was enhanced by the State Govt. vide notification published in official gazette on 18.10.2002 through which the jurisdiction to entertain the revision petition of value of stamp duty involved in the dispute exceeding Rs.5,00,000/- was conferred on Member Judicial, Board of Revenue, Allahabad. Since, the revision petition were prior to

18.10.2002, there was no occasion to return the file which was filed in the year 2001.

14. He submitted that the impugned order dated 04.07.2002 is liable to be quashed on the ground that pecuniary jurisdiction was changed subsequently on 18.10.2002. The notification dated 18.10.2002 would not be applicable on the pending revision prior to 18.10.2002 and on the date of passing of order dated 04.07.2002, the notification dated

18.10.2002 was not in existence. 5 WRIT - C No. - 1003328 of 2001

15. He next submitted that the document which has been impounded under Section 33 of Indian Stamps Act is not a partition deed and the respondents have erred in law in treating the same as partition deed and imposing deficiency in the stamp duty as well as penalty. The document is only a memorandum incorporating the portion of the property which has devolved upon the legal heirs of late Sri Balbhadra Prasad Mishra.

16. He further submitted that in the present case Section 47 or Section 47-A of the Indian Stamps Act cannot be said to be attracted as the document in question was never presented for registration before the Sub Registrar or before any other registering authority under the provisions of Indian Stamps Act.

17. He submitted that the documents in question were produced before the authorities of Nagar Palika only for the purpose of mutation of names, hence, the documents could not have been impounded under Section 33 or under Section 43 of Indian Stamps Act and the court below has erred treating the documents as partition deed. In support of his submissions, he placed reliance upon a judgment in the case of Somansh Prakash and 8 others Vs. State of U.P. and 3 others; Writ C No.5229 of 2021 dated 20.09.2024.

18. On the other hand, learned Standing Counsel opposed the submissions advanced by learned counsel for the petitioner and submitted that there is no illegality in the impugned orders and the same are just and valid.

19. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

20. To resolve the controversy involved in the matter, relevant portion of the judgment relied upon by learned counsel for the petitioner is being quoted below: 6 WRIT - C No. - 1003328 of 2001 "19. The record reveals that the partition deed was executed in writing on 23.05.2012; wherein it has specifically been mentioned that the petitioners being the family members, entered into an oral partition of the joint property of the family and after due process, they occupied their respective shares of the property, this fact has not been disputed at any stage of litigation by the State-respondents. 20. Once the possession had already been taken by the respective family members i.e. ten months ago from the date of execution of the partition deed, the question arises as to whether Section 2 (15) of the Indian Stamp Act, 1899 as amended in 1972 is applicable, which reads as under:- Section 2(15)-"Instrument of partition means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and also includes (i) a final order for effecting a partition passed by any revenue authority or any civil court; (ii) an award by an arbitrator directing a partition; and (iii) when any partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners. 21. From bare reading of the afore-quoted Sections, it clearly shows that if an instrument of partition is executed, duly signed by the co- owners, on previous terms of partition without possession, stamp duty is liable to be paid on the said instrument. 22. In other words, Section 2 (15) (iii) of the Act will be applicable, if an instrument of partition is executed by co-owners of the property, on a declaration of terms of a previous partition by co-owners, then it should be without possession. 23. Once the shares of each family member were divided and separate possession of their respective shares were occupied by them, they cease to be co-owners of the property on the date of execution of memo of partition in written. In other words, once the respective parties had taken possession of their shares, they cease to be the co- owner of the property. 24. From perusal of the memorandum of settlement, it further reveals that an agreement of partition of the property was reduced in writing, which had already completed and respective parties had come into actual physical possession of their respective shares of the property, which was agreed to be allotted to them and the necessary steps were already taken into consideration to get their respective title duly recorded in terms of oral family settlement and to abide by the memorandum. 25. But in the case at hand, at the time of execution of partition deed, the possession of the respective shares of the petitioners had already 26. The Full Bench of this Court in the case of Siya Ram (supra), in para no.3 has specifically held as under:- "........................ before aid of this sub-section can be taken, the instrument must be one which is executed by co-owners, and the partition must be effected by that instrument. In the present case as the partition had already taken place earlier and the parties had entered into separate possession of their shares, they ceased to beco-owners of the properties over which they had taken over separate possession. Moreover, inasmuch as the present document only referred to the fact of partition having taken place earlier, it did not come within the purview of this sub-section................." 27. The Hon'ble Supreme Court in the case of S. Sai Reddy (supra) has dealt with the issue of the claim of the daughters to claim a share in the joint Hindu family property on the basis of a State amendment to the Hindu Succession Act granting equal rights to the daughters in Hindu joint families. A preliminary decree defining the shares of the parties had already been passed in the suit when the law was amended by the State granting equal rights to daughters. The Supreme Court held “unless and until the final decree is passed and the allottees of the shares are to be in possession of the respective property, the partition is not complete†. A completed partition was explained as “a partition of the property by metes and bounds." 28. The Hon'ble Apex Court in S. Sai Reddy (supra) in para no.7 has held as under:- occupied them. ߸݄ 7 WRIT - C No. - 1003328 of 2001 "........ Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition.........." 29. Further, no cogent material was brought on record by the State- respondents to show that the partition was not complete on the date of execution of settlement of memorandum as well as petitioners were not in possession of their respective shares of the property. 30. In the case in hand, the petitioners, on an oral settlement, had already put in possession of the respective shares, the partition was completed much before the date of reducing in writing the memo of partition. 31. The aforesaid principle was applied by the A.P. High Court in A. Krishna and Anr. Vs. A. Arjun Rao and Anr. AIR 2004 AP 502. The Court held: "10. The underlying object of Section 35 of the Stamp Act is to ensure that the instrument chargeable with duty is duly stamped, as otherwise it would cause loss to the exchequer, and in order to save revenue to the State, the provision makes the instrument which is not duly stamped inadmissible in evidence. In the instant case, the plaintiffs by seeking to produce the document dated 3-6-1977, which is in the nature of memorandum of partition between the parties, are seeking to extinguish the exclusive right created in favour of Defendant No. 2. As per the recitals of the document, it is clear that partition has been effected by specifying the shares, which includes payment of maintenance to their mother, in that view of the matter, the document dated 3-6-1977 cannot be said to be memorandum regarding past partition. A perusal of the document further discloses that actual partition was not done by metes and bounds as per earlier partition. By virtue of the document, according to the plaintiffs, separate possession was sought to be delivered to the respective parties, and as such, it is evidencing partition. In this context, it is relevant to state that the document sought to be marked does not contain recitals that the parties have already taken possession of the properties by virtue of the earlier oral partition and continue to enjoy the said property separately after taking possession by virtue of the earlier partition. In the absence of any such recitals in the document, the Court below has rightly come to the conclusion that the document is required to be stamped and registered."(emphasis supplied) 32. The Delhi High Court in the case of Mangat Ram (supra) has held that the parties had not taken complete possession of their shares, therefore, instrument for partition are covered under Section 2 (15) of the Indian Stamp Act, 1899 and the same is liable for payment of due stamp duty. However, in the case at hand, the parties had already occupied their respective shares of the property before reducing the memorandum of settlement in writing on 23.05.2012 and therefore, they cease to be co-owners. 34. The record further reveals that the parties had arrived at an oral family settlement and to implement its terms, steps were taken to occupy the respective possession by metes and bounds i.e. by delivery of possession of the respective shares of property that were occupied before reducing the memo of partition deed in writing. 36. The record shows that in view of the oral family settlement, the respective parties not only divided their shares but also taken possession of their respective shares by metes and bounds, then at the time of reducing in writing the memorandum of settlement, will not be treated as instrument which is covered under Section 2 (15) (iii) of the Act. 37. There is no finding recorded in the impugned orders that there was any attempt to evade stamp duty or to deprive the State Exchequer or the rightful revenue. In the absence of such finding, there appears to be no justification for imposing the penalty. 38. It is settled law that reason is the heartbeat of every conclusion. An order without valid reasons cannot be sustained. To give reasons is the rule of natural justice. One of the most important aspect for necessitating to record reason is that it substitutes subjectivity with objectivity. It is well settled that not only the judicial order, but also the administrative order must be supported by reasons recording in it. 39. Highlighting this rule, the Hon'ble Supreme Court, in the cases of Assistant Commissioner, Commercial Tax Department, Works Contract & Leasing, Kota Vs. Shukla & Brothers, (2010) 4 SCC 785, 8 WRIT - C No. - 1003328 of 2001 M/s Travancore Rayon Ltd. v. Union of India, 1969 (3) SCC 868 have observed that the administrative authority and the tribunal are obliged to give reasons, absence whereof would render the order liable to judicial chastisement."

21. The impugned order dated 30.04.2001 reveals that respondent No.2 - Assistant Commissioner (Stamp) has treated the memorandum of family settlement to be a partition deed and has further calculated the valuation of the property and has imposed the deficiency in the stamp duty. The document in question cannot in any manner be termed to be a partition deed and as such no deficiency can be alleged so far as payment of stamp duty is concerned.

22. The Commissioner ought to have allowed the application of stay moved by the petitioner keeping in view the well settled proposition of law that if a person avails the statutory remedy of appeal or revision, the appellate or revisional court should apply its mind in favour of passing the order, staying the order appealed against. Thus, the respondent No.1 has erred in law while passing in the impugned order dated 14.06.2001.

23. respondent No.1 has returned the file on the ground that the court being Chief Controlling Authority does not have remedy to entertain the cases where the value of stamp duty involved in dispute exceeds Rs.5,00,000/-, however, the pecuniary jurisdiction was enhanced by the State Govt. vide notification published in official gazette on 18.10.2002 through which the jurisdiction to entertain the revision petition of value of stamp duty involved in the dispute exceeding Rs.5,00,000/- was conferred on Member Judicial, Board of Revenue, Allahabad. Since, the revision petition was prior to 18.10.2002, there was no occasion to return the file which was filed in the year 2001.

24. The impugned order dated 04.07.2002 is liable to be quashed on the ground that pecuniary jurisdiction was changed subsequently on

18.10.2002. The notification dated 18.10.2002 would not be applicable on the pending revision prior to 18.10.2002 and on the date of passing of 9 WRIT - C No. - 1003328 of 2001 order dated 04.07.2002, the notification dated 18.10.2002 was not in existence.

25. The document which has been impounded under Section 33 of Indian Stamps Act is not a partition deed and the respondents have erred in law in treating the same as partition deed and imposing deficiency in the stamp duty as well as penalty. The document is only a memorandum incorporating the portion of the property which has devolved upon the legal heirs of late Sri Balbhadra Prasad Mishra.

26. In the present case Section 47 or Section 47-A of the Indian Stamps Act cannot be said to be attracted as the document in question was never presented for registration before the Sub Registrar or before any other registering authority under the provisions of Indian Stamps Act. The documents in question were produced before the authorities of Nagar Palika only for the purpose of mutation of names, hence, the documents could not have been impounded under Section 33 or under Section 43 of Indian Stamps Act and the court below has erred treating the documents as partition deed.

27. The record reveals that the partition deed was not executed nor registered. It has specifically been mentioned that the petitioners being the family members, are entitled to an oral partition of the property of family and after due process, they occupied their respective shares of the property. This fact has not been disputed at any stage of litigation by the State-respondents. Once the possession had already been taken by the respective family members before the date of execution of the partition deed, the question arises as to whether Section 2(15) of the Indian Stamp Act, 1899 as amended in 1972 is applicable, which reads as under:- "Section 2(15)-"Instrument of partition means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and also includes (i) a final order for effecting a partition passed by any revenue authority or any civil court; (ii) an award by an arbitrator directing a partition; and (iii) when any partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners." 10 WRIT - C No. - 1003328 of 2001

28. In the case in hand, at the time of execution of notorial affidavit the possession of respective shares of the petitioners had already been occupied by them. The Full Bench of this Court in the case of Siya Ram (supra), in para no.3 has specifically held as under:- "........................ before aid of this sub-section can be taken, the instrument must be one which is executed by co-owners, and the partition must be effected by that instrument. In the present case as the partition had already taken place earlier and the parties had entered into separate possession of their shares, they ceased to beco-owners of the properties over which they had taken over separate possession. Moreover, inasmuch as the present document only referred to the fact of partition having taken place earlier, it did not come within the purview of this sub- section................."

29. There is no finding recorded in the impugned orders that there was any attempt to evade stamp duty or to deprive the State Exchequer or the rightful revenue. In the absence of such finding, there appears to be no justification for imposing the penalty. It is settled law that reason is the heartbeat of every conclusion. An order without valid reasons cannot be sustained. To give reasons is the rule of natural justice. One of the most important aspect for necessitating to record reason is that it substitutes subjectivity with objectivity. It is well settled that not only the judicial order, but also the administrative order must be supported by reasons recording in it.

30. Highlighting this rule, the Hon'ble Supreme Court, in the cases of Assistant Commissioner, Commercial Tax Department, Works Contract & Leasing, Kota Vs. Shukla & Brothers, (2010) 4 SCC 785, M/s Travancore Rayon Ltd. v. Union of India, 1969 (3) SCC 868 has observed that the administrative authority and the tribunal are obliged to give reasons, absence whereof would render the order liable to judicial chastisement.

31. In view of totality of facts and circumstances of the case stated above, the order passed by the Assistant Commissioner (Stamp), District Ambedkar Nagar dated 30.04.2001 in Stamp Case No.199 under Section 33/47-A of the Indian Stamp Act, 1899 with respect to agricultural property situated in village Jalalpur Dehat and Village Wazidpur and dwelling house situated in Kasba Jalalpur, District Ambedkar Nagar by 11 WRIT - C No. - 1003328 of 2001 which, the Assistant Commissioner (Stamp) has determined the alleged deficiency in the stamp duty to the tune of Rs.5,06,496/- and imposed a penalty of Rs.50,000/- totalling Rs.5,56,496/- has been ordered to be realised from the petitioner and the impugned order dated 14.06.2001 passed by respondent No.1 contained as annexure-2 to the writ petition as well as order dated 04.07.2002 contained as annexure-6 to the writ petition are hereby quashed.

32. The writ petition succeeds and is allowed.

33. No order as to costs. September 26, 2025 Adarsh K Singh (Irshad Ali,J.) ADARSH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench

contained as annexure 6 to the writ petition.

3. Factual matrix of the case is that the petitioner along with his real brothers, namely, Sri Ambika Prasad Sharma, Sri Chandrika Prasad Sharma and Sri Onkar Nath Sharma had inherited certain properties, namely, the dwelling house in Kasba Jalalpur within territorial limit of Nagar Palika, Jalalpur, District Ambedkar Nagar and the grove land situated in village Jalalpur Dehat and Village Wazidpur, Tehsil Jalalpur District Ambedkar Nagar.

4. The petitioner and his brothers are only legal heirs and representative who are entitled to succeed the properties aforementioned left behind by their father late Sri Balbhadra Prasad Mishra, who died in the year 1965.

5. With a view to arrive at a settlement relating to the aforesaid properties, all the four brothers executed a memorandum of family settlement which was got duly notarised on 25.06.1998. By the aforesaid memorandum of family settlement, shares of the brothers were not transferred to each other. As a matter of fact, the said document can only be said to be in recognition of the properties inherited by all the four brothers.

6. On the basis of said memorandum of family settlement, the petitioner along with his brothers, applied for mutation of their names in the records maintained by Nagar Palika, Jalalpur, District Ambedkar Nagar and accordingly, their names were mutated in place of deceased late Sri Balbhadra Prasad Mishra.

7. The petitioner received a notice dated 26.02.2000 from office of Additional District Magistrate (Finance and Revenue), District Ambedkar Nagar requiring him to show cause as to why the deficiency 3 WRIT - C No. - 1003328 of 2001 of stamp duty and consequential penalty be not imposed and realised from him. The petitioner submitted his reply to the said notice on

21.03.2000 and submitted that the memorandum of family settlement was duly notarised and it cannot be said to be a partition deed and as such no stamp duty was payable on the said document. It was also submitted by the petitioner that the said memorandum of family settlement was written only with a view to avoid any conflict between the legal heirs of late Sri Balbhadra Prasad Mishra. Through the said memorandum of family settlement, no transfer of shares had taken place. As such, no deficiency in the stamp duty can be alleged neither any penalty can be imposed on the said document and prayed that the notice issued to him on 26.02.2000 be discharged.

8. The Assistant Commissioner (Stamp) District Ambedkar Nagar without considering the relevant facts and circumstances of the case vide order dated 30.04.2001 determined the deficiency to the tune of Rs.5,06,496 and also imposed a penalty amounting to Rs.50,000/-.

9. Against order dated 30.04.2001, the petitioner preferred a revision to the Commissioner, Faizabad Division, Faizabad (Chief Controlling Revenue Officer under the Act) under Section 56 of the Act. Along with said revision, the petitioner also preferred an application seeking stay of the order dated 30.04.2001, which was rejected vide order dated

14.06.2001.

10. In the order dated 04.07.2002, the Commissioner returned the file of the revision parties to be presented before the Chief Controlling Revenue Authority, Prayagraj, U.P. No one chose to approach the said authority when the writ petition to the original order is pending before this Hon'ble Court.

11. Submission of learned counsel for the petitioner is that impugned order dated 30.04.2001 reveals that respondent No.2 - Assistant Commissioner (Stamp) has treated the memorandum of family 4 WRIT - C No. - 1003328 of 2001 settlement to be a partition deed and has further calculated the valuation of the property and has imposed the deficiency in the stamp duty. The document in question cannot in any manner be termed to be a partition deed and as such no deficiency can be alleged so far as payment of stamp duty is concerned.

12. He next submitted that the Commissioner ought to have allowed the application of stay moved by the petitioner keeping in view the well settled proposition of law that if a person avails the statutory remedy of appeal or revision, the appellate or revisional court should apply its mind in favour of passing the order, staying the order appealed against. Thus, the respondent No.1 has erred in law while passing in the impugned order dated 14.06.2001.

13. He further submitted that respondent No.1 has returned the file on the ground that the court being Chief Controlling Authority does not have remedy to entertain the cases where the value of stamp duty involved in dispute exceeds Rs.5,00,000/-, however, the pecuniary jurisdiction was enhanced by the State Govt. vide notification published in official gazette on 18.10.2002 through which the jurisdiction to entertain the revision petition of value of stamp duty involved in the dispute exceeding Rs.5,00,000/- was conferred on Member Judicial, Board of Revenue, Allahabad. Since, the revision petition were prior to

18.10.2002, there was no occasion to return the file which was filed in the year 2001.

14. He submitted that the impugned order dated 04.07.2002 is liable to be quashed on the ground that pecuniary jurisdiction was changed subsequently on 18.10.2002. The notification dated 18.10.2002 would not be applicable on the pending revision prior to 18.10.2002 and on the date of passing of order dated 04.07.2002, the notification dated

18.10.2002 was not in existence. 5 WRIT - C No. - 1003328 of 2001

15. He next submitted that the document which has been impounded under Section 33 of Indian Stamps Act is not a partition deed and the respondents have erred in law in treating the same as partition deed and imposing deficiency in the stamp duty as well as penalty. The document is only a memorandum incorporating the portion of the property which has devolved upon the legal heirs of late Sri Balbhadra Prasad Mishra.

16. He further submitted that in the present case Section 47 or Section 47-A of the Indian Stamps Act cannot be said to be attracted as the document in question was never presented for registration before the Sub Registrar or before any other registering authority under the provisions of Indian Stamps Act.

17. He submitted that the documents in question were produced before the authorities of Nagar Palika only for the purpose of mutation of names, hence, the documents could not have been impounded under Section 33 or under Section 43 of Indian Stamps Act and the court below has erred treating the documents as partition deed. In support of his submissions, he placed reliance upon a judgment in the case of Somansh Prakash and 8 others Vs. State of U.P. and 3 others; Writ C No.5229 of 2021 dated 20.09.2024.

18. On the other hand, learned Standing Counsel opposed the submissions advanced by learned counsel for the petitioner and submitted that there is no illegality in the impugned orders and the same are just and valid.

19. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

20. To resolve the controversy involved in the matter, relevant portion of the judgment relied upon by learned counsel for the petitioner is being quoted below: 6 WRIT - C No. - 1003328 of 2001 "19. The record reveals that the partition deed was executed in writing on 23.05.2012; wherein it has specifically been mentioned that the petitioners being the family members, entered into an oral partition of the joint property of the family and after due process, they occupied their respective shares of the property, this fact has not been disputed at any stage of litigation by the State-respondents. 20. Once the possession had already been taken by the respective family members i.e. ten months ago from the date of execution of the partition deed, the question arises as to whether Section 2 (15) of the Indian Stamp Act, 1899 as amended in 1972 is applicable, which reads as under:- Section 2(15)-"Instrument of partition means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and also includes (i) a final order for effecting a partition passed by any revenue authority or any civil court; (ii) an award by an arbitrator directing a partition; and (iii) when any partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners. 21. From bare reading of the afore-quoted Sections, it clearly shows that if an instrument of partition is executed, duly signed by the co- owners, on previous terms of partition without possession, stamp duty is liable to be paid on the said instrument. 22. In other words, Section 2 (15) (iii) of the Act will be applicable, if an instrument of partition is executed by co-owners of the property, on a declaration of terms of a previous partition by co-owners, then it should be without possession. 23. Once the shares of each family member were divided and separate possession of their respective shares were occupied by them, they cease to be co-owners of the property on the date of execution of memo of partition in written. In other words, once the respective parties had taken possession of their shares, they cease to be the co- owner of the property. 24. From perusal of the memorandum of settlement, it further reveals that an agreement of partition of the property was reduced in writing, which had already completed and respective parties had come into actual physical possession of their respective shares of the property, which was agreed to be allotted to them and the necessary steps were already taken into consideration to get their respective title duly recorded in terms of oral family settlement and to abide by the memorandum. 25. But in the case at hand, at the time of execution of partition deed, the possession of the respective shares of the petitioners had already 26. The Full Bench of this Court in the case of Siya Ram (supra), in para no.3 has specifically held as under:- "........................ before aid of this sub-section can be taken, the instrument must be one which is executed by co-owners, and the partition must be effected by that instrument. In the present case as the partition had already taken place earlier and the parties had entered into separate possession of their shares, they ceased to beco-owners of the properties over which they had taken over separate possession. Moreover, inasmuch as the present document only referred to the fact of partition having taken place earlier, it did not come within the purview of this sub-section................." 27. The Hon'ble Supreme Court in the case of S. Sai Reddy (supra) has dealt with the issue of the claim of the daughters to claim a share in the joint Hindu family property on the basis of a State amendment to the Hindu Succession Act granting equal rights to the daughters in Hindu joint families. A preliminary decree defining the shares of the parties had already been passed in the suit when the law was amended by the State granting equal rights to daughters. The Supreme Court held “unless and until the final decree is passed and the allottees of the shares are to be in possession of the respective property, the partition is not complete†. A completed partition was explained as “a partition of the property by metes and bounds." 28. The Hon'ble Apex Court in S. Sai Reddy (supra) in para no.7 has held as under:- occupied them. ߸݄ 7 WRIT - C No. - 1003328 of 2001 "........ Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition.........." 29. Further, no cogent material was brought on record by the State- respondents to show that the partition was not complete on the date of execution of settlement of memorandum as well as petitioners were not in possession of their respective shares of the property. 30. In the case in hand, the petitioners, on an oral settlement, had already put in possession of the respective shares, the partition was completed much before the date of reducing in writing the memo of partition. 31. The aforesaid principle was applied by the A.P. High Court in A. Krishna and Anr. Vs. A. Arjun Rao and Anr. AIR 2004 AP 502. The Court held: "10. The underlying object of Section 35 of the Stamp Act is to ensure that the instrument chargeable with duty is duly stamped, as otherwise it would cause loss to the exchequer, and in order to save revenue to the State, the provision makes the instrument which is not duly stamped inadmissible in evidence. In the instant case, the plaintiffs by seeking to produce the document dated 3-6-1977, which is in the nature of memorandum of partition between the parties, are seeking to extinguish the exclusive right created in favour of Defendant No. 2. As per the recitals of the document, it is clear that partition has been effected by specifying the shares, which includes payment of maintenance to their mother, in that view of the matter, the document dated 3-6-1977 cannot be said to be memorandum regarding past partition. A perusal of the document further discloses that actual partition was not done by metes and bounds as per earlier partition. By virtue of the document, according to the plaintiffs, separate possession was sought to be delivered to the respective parties, and as such, it is evidencing partition. In this context, it is relevant to state that the document sought to be marked does not contain recitals that the parties have already taken possession of the properties by virtue of the earlier oral partition and continue to enjoy the said property separately after taking possession by virtue of the earlier partition. In the absence of any such recitals in the document, the Court below has rightly come to the conclusion that the document is required to be stamped and registered."(emphasis supplied) 32. The Delhi High Court in the case of Mangat Ram (supra) has held that the parties had not taken complete possession of their shares, therefore, instrument for partition are covered under Section 2 (15) of the Indian Stamp Act, 1899 and the same is liable for payment of due stamp duty. However, in the case at hand, the parties had already occupied their respective shares of the property before reducing the memorandum of settlement in writing on 23.05.2012 and therefore, they cease to be co-owners. 34. The record further reveals that the parties had arrived at an oral family settlement and to implement its terms, steps were taken to occupy the respective possession by metes and bounds i.e. by delivery of possession of the respective shares of property that were occupied before reducing the memo of partition deed in writing. 36. The record shows that in view of the oral family settlement, the respective parties not only divided their shares but also taken possession of their respective shares by metes and bounds, then at the time of reducing in writing the memorandum of settlement, will not be treated as instrument which is covered under Section 2 (15) (iii) of the Act. 37. There is no finding recorded in the impugned orders that there was any attempt to evade stamp duty or to deprive the State Exchequer or the rightful revenue. In the absence of such finding, there appears to be no justification for imposing the penalty. 38. It is settled law that reason is the heartbeat of every conclusion. An order without valid reasons cannot be sustained. To give reasons is the rule of natural justice. One of the most important aspect for necessitating to record reason is that it substitutes subjectivity with objectivity. It is well settled that not only the judicial order, but also the administrative order must be supported by reasons recording in it. 39. Highlighting this rule, the Hon'ble Supreme Court, in the cases of Assistant Commissioner, Commercial Tax Department, Works Contract & Leasing, Kota Vs. Shukla & Brothers, (2010) 4 SCC 785, 8 WRIT - C No. - 1003328 of 2001 M/s Travancore Rayon Ltd. v. Union of India, 1969 (3) SCC 868 have observed that the administrative authority and the tribunal are obliged to give reasons, absence whereof would render the order liable to judicial chastisement."

21. The impugned order dated 30.04.2001 reveals that respondent No.2 - Assistant Commissioner (Stamp) has treated the memorandum of family settlement to be a partition deed and has further calculated the valuation of the property and has imposed the deficiency in the stamp duty. The document in question cannot in any manner be termed to be a partition deed and as such no deficiency can be alleged so far as payment of stamp duty is concerned.

22. The Commissioner ought to have allowed the application of stay moved by the petitioner keeping in view the well settled proposition of law that if a person avails the statutory remedy of appeal or revision, the appellate or revisional court should apply its mind in favour of passing the order, staying the order appealed against. Thus, the respondent No.1 has erred in law while passing in the impugned order dated 14.06.2001.

23. respondent No.1 has returned the file on the ground that the court being Chief Controlling Authority does not have remedy to entertain the cases where the value of stamp duty involved in dispute exceeds Rs.5,00,000/-, however, the pecuniary jurisdiction was enhanced by the State Govt. vide notification published in official gazette on 18.10.2002 through which the jurisdiction to entertain the revision petition of value of stamp duty involved in the dispute exceeding Rs.5,00,000/- was conferred on Member Judicial, Board of Revenue, Allahabad. Since, the revision petition was prior to 18.10.2002, there was no occasion to return the file which was filed in the year 2001.

24. The impugned order dated 04.07.2002 is liable to be quashed on the ground that pecuniary jurisdiction was changed subsequently on

18.10.2002. The notification dated 18.10.2002 would not be applicable on the pending revision prior to 18.10.2002 and on the date of passing of 9 WRIT - C No. - 1003328 of 2001 order dated 04.07.2002, the notification dated 18.10.2002 was not in existence.

25. The document which has been impounded under Section 33 of Indian Stamps Act is not a partition deed and the respondents have erred in law in treating the same as partition deed and imposing deficiency in the stamp duty as well as penalty. The document is only a memorandum incorporating the portion of the property which has devolved upon the legal heirs of late Sri Balbhadra Prasad Mishra.

26. In the present case Section 47 or Section 47-A of the Indian Stamps Act cannot be said to be attracted as the document in question was never presented for registration before the Sub Registrar or before any other registering authority under the provisions of Indian Stamps Act. The documents in question were produced before the authorities of Nagar Palika only for the purpose of mutation of names, hence, the documents could not have been impounded under Section 33 or under Section 43 of Indian Stamps Act and the court below has erred treating the documents as partition deed.

27. The record reveals that the partition deed was not executed nor registered. It has specifically been mentioned that the petitioners being the family members, are entitled to an oral partition of the property of family and after due process, they occupied their respective shares of the property. This fact has not been disputed at any stage of litigation by the State-respondents. Once the possession had already been taken by the respective family members before the date of execution of the partition deed, the question arises as to whether Section 2(15) of the Indian Stamp Act, 1899 as amended in 1972 is applicable, which reads as under:- "Section 2(15)-"Instrument of partition means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and also includes (i) a final order for effecting a partition passed by any revenue authority or any civil court; (ii) an award by an arbitrator directing a partition; and (iii) when any partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners." 10 WRIT - C No. - 1003328 of 2001

28. In the case in hand, at the time of execution of notorial affidavit the possession of respective shares of the petitioners had already been occupied by them. The Full Bench of this Court in the case of Siya Ram (supra), in para no.3 has specifically held as under:- "........................ before aid of this sub-section can be taken, the instrument must be one which is executed by co-owners, and the partition must be effected by that instrument. In the present case as the partition had already taken place earlier and the parties had entered into separate possession of their shares, they ceased to beco-owners of the properties over which they had taken over separate possession. Moreover, inasmuch as the present document only referred to the fact of partition having taken place earlier, it did not come within the purview of this sub- section................."

29. There is no finding recorded in the impugned orders that there was any attempt to evade stamp duty or to deprive the State Exchequer or the rightful revenue. In the absence of such finding, there appears to be no justification for imposing the penalty. It is settled law that reason is the heartbeat of every conclusion. An order without valid reasons cannot be sustained. To give reasons is the rule of natural justice. One of the most important aspect for necessitating to record reason is that it substitutes subjectivity with objectivity. It is well settled that not only the judicial order, but also the administrative order must be supported by reasons recording in it.

30. Highlighting this rule, the Hon'ble Supreme Court, in the cases of Assistant Commissioner, Commercial Tax Department, Works Contract & Leasing, Kota Vs. Shukla & Brothers, (2010) 4 SCC 785, M/s Travancore Rayon Ltd. v. Union of India, 1969 (3) SCC 868 has observed that the administrative authority and the tribunal are obliged to give reasons, absence whereof would render the order liable to judicial chastisement.

31. In view of totality of facts and circumstances of the case stated above, the order passed by the Assistant Commissioner (Stamp), District Ambedkar Nagar dated 30.04.2001 in Stamp Case No.199 under Section 33/47-A of the Indian Stamp Act, 1899 with respect to agricultural property situated in village Jalalpur Dehat and Village Wazidpur and dwelling house situated in Kasba Jalalpur, District Ambedkar Nagar by 11 WRIT - C No. - 1003328 of 2001 which, the Assistant Commissioner (Stamp) has determined the alleged deficiency in the stamp duty to the tune of Rs.5,06,496/- and imposed a penalty of Rs.50,000/- totalling Rs.5,56,496/- has been ordered to be realised from the petitioner and the impugned order dated 14.06.2001 passed by respondent No.1 contained as annexure-2 to the writ petition as well as order dated 04.07.2002 contained as annexure-6 to the writ petition are hereby quashed.

32. The writ petition succeeds and is allowed.

33. No order as to costs. September 26, 2025 Adarsh K Singh (Irshad Ali,J.) ADARSH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench