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Anna Rao Vs. Bandappa - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1614 of 1967
Judge
Reported inAIR1971Kant63; AIR1971Mys63; (1970)2MysLJ442
ActsMysore Stamp Act, 1957 - Sections 3 and 17; Mysore Stamp (Amendment) Act, 1962; ;Transfer of Property Act, 1882 - Sections 54; Hyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 47
AppellantAnna Rao
RespondentBandappa
Advocates:Murlidhar Rao, Adv.
Excerpt:
.....several aspects to which we have referred, were not argued nor were they otherwise considered and hold that for the purposes of the stamp act, the crucial time for determining whether an instrument chargeable with duty is duly stamped or not, is before or at the time of execution, and that apart from its execution, no other formalities under any other law need be satisfied. we are clearly of the opinion that stamp duty under the act is chargeable on instruments on execution and the instruments should be stamped before or at the time of execution. the failure to register the instrument after execution is an irrelevant matter for the purpose of determining the question whether the document is chargeable to duty under the act. simi-larly, failure to obtain the previous sanction of the..........referred to the full bench for opinion is: 'whether the instrument in question is not liable for stamp duty under item 20 of the schedule of the mysore stamp act, 1957?' 2. the english translation of the document which is in kannada reads thus: date 23-1-1963,sale deed executed in favour of siddappa s/o erappa tiralapur, resident of karakmukul village, chinocholi taluk, district gulbarga, by bandappa s/o sangappa para, resident of karakmukul village, chincholi taluk, is as follows: the land 'anehole' bearing survey no. 157-a, measuring 14 acres and 29 guntas, assessed at 5-57, stands entered in the patta in my name and i havesold the same for a sum of rs. 3,000/-(three thousand) of india currency. at present, a sum of rs. 2,700/- (rupees two thousand and seven hundred) in cash has.....
Judgment:

Govinda Bhat, J.

1. The question referred to the Full Bench for opinion is:

'Whether the instrument in question is not liable for stamp duty under Item 20 of the Schedule of the Mysore Stamp Act, 1957?'

2. The English translation of the document which is in Kannada reads thus:

Date 23-1-1963,Sale deed executed in favour of Siddappa s/o Erappa Tiralapur, resident of Karakmukul village, Chinocholi Taluk, District Gulbarga, by Bandappa s/o Sangappa Para, resident of Karakmukul village, Chincholi Taluk, is as follows:

The land 'Anehole' bearing Survey No. 157-A, measuring 14 acres and 29 guntas, assessed at 5-57, stands entered in the patta in my name and I havesold the same for a sum of Rs. 3,000/-(Three thousand) of India currency. At present, a sum of Rs. 2,700/- (Rupees two thousand and seven hundred) in cash has been received. I have delivered the said survey number to your possession. I have agreed to receive the remaining amount in the ensuing Uganda day. For getting the patta made in respect of the said survey number which is sold, I will come to any office where I am called and give my consent. Hereafter my family members and I shall have no right over the said survey number. I have executed this sale deed out of my own free will and with full consciousness, and the contents thereof are correct.

Sd/- Bandappa Para.

Witnesses:

Sd/- Gundappa Pyati,

Sd/- Rachappa Bhandar.

'Thumb mark of Revappa

Rayappa.

Attestation of Rachappa.

Handwriting of Shiva Patil Elmandi.'

3. The contention of Sri Murlidhar Rao, the learned counsel for the petitioner is that the document is not a 'conveyance' within the meaning of the definition of the term found in Section 2 (1) (d) of the Mysore Stamp Act, 1957 (hereinafter called the 'Act'.). The learned counsel argued that a transfer by way of sale of immovable property of a value of more than Rs. 100/- can be effected only by a registered instrument as provided by Section 54 of the Transfer of Property Act, 1882 and that where a document purporting to transfer immovable property of a value of more than Rs. 100 is not registered, it does not in law convey any valid title; that since Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 provides that no transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Collector, any transfer of agricultural land made without the previous sanction of the Collector is invalid in law; that in the instant case the previous sanction of the Collector not having been obtained for the transfer of the agricultural land, the sale is invalid. Therefore, both on the ground that the document is not registered and that the previous sanction of the Collector for the transfer of the land has not been obtained, the sale deed is invalid and does not operate to convey any title. Since the document in question does not effect a valid transfer, it does not amount to a 'conveyance.'

4. In support of his contention, Sri Murlidhar Rao relied on the decision in Crompton Engineering Co. (Madras) Ltd. v. Chief Controlling Revenue Authority, Madras, : AIR1953Mad764 (FB). In the said case, the document in question purported to be a mortgage deed but was neither attested nor registered. The contention was that there could be no transfer of rights over or in respect of 'specified' property unless the requirements of Section 59 of the Transfer of Property Act were satisfied. Section 59 of the Transfer of Property Act provides that a mortgage other than a mortgage by deposit of title deeds where the principal money secured is Rs. 100/- or upwards can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. It was held that the transfer contemplated by Section 2(17) of the Stamp Act, 1899 is a transfer valid in law; that such a transfer would not have been effected under the document in question which was neither attested nor registered. Since the document was neither attested nor registered, it was held that it does not amount to a deed of mortgage. The decision in Crompton Engineering Co's case, ( : AIR1953Mad764 (FB)) was followed by this Court in Malkajappa y. Ayyamma, 1964-1 Mys LJ 299. That is a decision by a learned Single Judge. A Full Bench of five Judges of the Andhra Pradesh High Court in Hazrami Gangaram v. Kamala-bai, : AIR1968AP213 (FB) has dissented from Crompton Engineering Company's case : AIR1953Mad764 (FB). After referring to the relevant provisions of the Stamp Act, 1899 Jaganmohan Reddy, Chief Justice, who delivered the judgment of the Full Bench Stated:

'There is no warrant for the importation of the requirements of either of the Transfer of Property Act or the Registration Act to construe documents or instruments under the Stamp Act as the latter Act itself specifically defines the terms used therein.....

x x x x x It is clear that the document mustbe stamped without reference to anyother formality or requirement of lawto make the instrument valid at or before the execution of the document.'

The learned Chief Justice concluded asfollows at page 218:

'In our opinion, there is not the slightest indication in any of the provisions of the Stamp Act to lend support to the contention that a document must be validly executed either under the provisions of the Transfer of Property Act or under the Registration Act or for that matter, under any other provision of law, before it is chargeable to Stamp Duty.

x x x x x In the view we have taken, wemust, with great respect, dissent fromthe views of the eminent Judges of the Full Bench of the Madras High Court in Crompton Engineering Company's case, : AIR1953Mad764 (FB), before whom the several aspects to which we have referred, were not argued nor were they otherwise considered and hold that for the purposes of the Stamp Act, the crucial time for determining whether an instrument chargeable with duty is duly stamped or not, is before or at the time of execution, and that apart from its execution, no other formalities under any other law need be satisfied.'

5. In Chief Controlling Revenue Authority v. Canara Industrial and Banking Syndicate Ltd.. : AIR1969Mad1 (FB) a later Full Bench of the Madras High Court has stated that the dicta in : AIR1953Mad764 (FB) will have to be interpreted as of restricted scope and with reference to the facts of that case. Anantanarayana. Chief Justice. after referring to the relevant provisions of the Stamp Act, 1899 stated that the liability of an instrument to stamp duty arises on execution, that once a document is complete in execution, the question of its subsequent registration is a distinct matter altogether, and the document is certainly liable to stamp duty with reference to the relevant Article of the Stamp Act since execution is complete. The question referred for the opinion of the Full Bench was whether the instrument in question was not liable to be stamped under Article 23 of the Schedule 1 of the Stamp Act even though it was not registered and whether instruments in general are to be stamped on execution notwithstanding that other conditions which validate the transfer of rights which the instruments purport to make are not present. The Full Bench answered the reference in the form that the document was liable for stamp duty under Article 23 of Schedule 1 of the Stamp Act and that the dicta in Crompton Engineering Co.'s case, : AIR1953Mad764 (FB) will have to be interpreted as of restricted scope and with reference to the facts of that case as pointed out earlier.

6. The provisions of the Act are In pari materia with the provisions of the Stamp Act of 1899. Section 3 is the charging section which makes the instruments mentioned in the schedule to the Act executed in the territories in the State of Mysore on or after the commencement of the Act chargeable with duty of the amount indicated in the schedule.

7. Section 17 of the Act provides that all instruments chargeable with duty and executed by any person in theState of Mysore shall be stamped before or at the time of the execution.

8. Section 34 provides that no instrument chargeable with duty shall be registered unless such instrument is duly stamped. If the contention of the learned counsel for the petitioner, that where a document which requires registration under the law has not been registered, it is not liable to stamp duty, is accepted as valid, then the registration officer before whom an unstamped document or insufficiently stamped document is presented for registration cannot refuse to register the document on the ground that it is not duly stamped nor can such an officer impound the document under Section 33. The registration officer before whom any document is presented for registration has the statutory duty to consider whether the instrument is duly stamped in accordance with the provisions of the Act in force at the time of its execution. Under the Registration Act. a document can be presented for registration before the appropriate officer within four months from the date of its execution. If the argument of the learned counsel for the petitioner is accepted as valid, if there is any alteration in the rate of duty between the date of execution of a document and its registration, the rate of duty that will govern is the one in force at the time of the registration of the document. The provisions of the Act do not lend any support for such an argument. We are clearly of the opinion that stamp duty under the Act is chargeable on instruments on execution and the instruments should be stamped before or at the time of execution. The failure to register the instrument after execution is an irrelevant matter for the purpose of determining the question whether the document is chargeable to duty under the Act. Simi-larly, failure to obtain the previous sanction of the Collector for the transfer which invalidates the transfer has no, bearing on the question of the liability of the document to Stamp Duty under the Act.

9. In the instant case the document has been drawn up as a sale deed of immovable property. It has been signed by the executant and attested by more than two witnesses. The execution of the document being complete, it is chargeable to stamp duty as a 'conveyance' under item 20 of the Schedule of the Act notwithstanding that other conditions which validate the transfer of rights which the instrument purports to make are not present.

10. We accordingly answer the question referred that the document is liable to stamp duty under item 20 ofthe Schedule of the Mysore Stamp Act, 1957.


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