1. The question referred to us by the Commissioner of Survey Settlements and Land Records, Andhra Pradesh, under S. 57. Stamp Act, is whether the document styled as release deed by the petitioners is a sale deed for consideration or whether it is a release deed.
2. Six petitioners, viz, (1) Kothuri Venkata Subba Rao, (2) Kothuri Sambasiva Rao, (3) Kothuri Srinivasa Rao alias Venkateswaralu, (4) Kothuri Bhaskara Rao, (5) Kothuri Vijaya Bhaskara Rao and (6) Ramesh Babu being minor represented by guardian and mother Kothuri Vijaya Laxmi and four others, viz., (1) Kothuri Ramulu, (2) Penugonda Lakshmi Bapamma, (3) Murikipudi Venkataranganadham and (4) Kothuri Laxmaiah purchased jointly two plots of lands under two registered sale deeds dt. 7-11-1968 for Rs. 70,000/- and dt. 29-8-1973 for Rs. 20,000/- for constructing a Cinema Theatre. They were in enjoyment of the properties jointly as co-owners and no partnership was entered into. Later the four persons did not want to continue in business, executed four separate relinquishment deeds dt. 31-5-1976 in favour of the remaining members, who wanted to continue in business after receiving a consideration of Rs. 12, 000/- each. These documents were tendered before the District Registrar.
The District Registrar relying upon the observations of the Referred Case No. 83 of 1970 dt. 18-1-1974 of this Court took the view that inasmuch as the property was jointly owned by ten individuals as co-owners and the executants have transferred their 1/10th share in favour of the six owners only i.e., the six petitioners, the documents should, therefore, be treated as conveyance deeds on sale for a consideration of Rs. 12,000/- The District Registrar impounded the documents accordingly and issued orders in his proceedings No. G.1/I.No.3/77 dt. 18-8-1977, G1/I.No.1/77 dt. 18-8-1977, G1./I.No.2/77 dt. 18-8-1977 and G.1/I.No.4/77 dt. 18-8-1977 for payment of deficit stamp duty of Rs. 3896/- each together with a penalty of Rs. 100/- each.
3. Aggrieved with the orders of the District Registrar, the four executants, who will hereinafter be referred to as the petitioners, approached the Commissioner of Survey Settlements and Land Records, Andhra Pradesh under S. 56, Stamp Act, questioning the correctness of the order of the District Registrar.
4. It was contended before the Commissioner that the view of the District Registrar that the documents in question are deeds of conveyance on sale is not at all correct and on the other hand, the documents in question are only deeds of release.
5. The Commissioner did not accept this contention and held that each deed is a deed of conveyance for consideration of Rs. 12,000/- and it is not a deed of release. As the Commissioner felt that an important question of law is involved, he made this reference.
6. Thus, the reference came before us. We have to examine whether the documents in question are deeds of release or deeds of conveyance for sale.
7. The word 'conveyance' is defined under S. 2(10), Stamp Act, which reads as follows :
'Conveyance' includes a conveyance on sale and every instrument by which property, whether moveable or immovable is transferred inter vivos and which is not otherwise specially provided for by Schedule 1 (or by Sch. 1-A) as the case may be.'
8. The word 'Release' is not defined but Art. 46 of Sch. 1-A reads as follows :--
'46. Release : that is to say, (A) any instrument (not being such a release as is provided for by S. 23-A) whereby person renounces a claim upon another person or against any specified property.
9. The definition of conveyance is very comprehensive so as to include not only a sale deed but also any instrument under which the property is transferred inter vivos. According to this definition, all transfers of property movable or immovable on sale or otherwise but not otherwise specifically provided for by the schedule are chargeable as conveyance. The transfers otherwise provided for in the schedule are composition deed No. 22, exchange of property No. 31, release No. 55, settlement No. 58, transfer No. 62, transfer of lease No. 63 and declaration of trust No. 64.
10. A deed of release is an instrument by which one of the co-owners releases or renounces his interest in the specified property and the result of such release would be the enlargement of the share of the other co-owner. Thus there is a clear and marked distinction between a deed of conveyance and a deed of release.
11. The stamp duty payable for a deed of conveyance is under Art.20 of sch. 1-A, stamp act ,is more than the duty payable for a deed of release under Art.46 of the Sch. 1-A of the act. Hence the parties to the transaction of sale describe the deeds of conveyance as deeds of release.
12. It is now well settled that in order to determine the nature of an instrument, neither the nomenclature nor the language which the parties may choose to employ in framing the document is decisive. What is decisive is the actual nature and the character of the transaction intended by the executant.
13. In T. Mamoo v. K. Ramunni : AIR1966SC337 , their Lordships of the Supreme Court clearly laid down thus:
'a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to transfer of the rights.....................Ex. B.1 stated that the releaseor was the owner of the properties. It showed an intention to transfer his title and its operative words sufficiently conveyed the title. The instrument on its true construction took effect as a gift..................'
14. From this rulling, it is clear that the intendment of the parties to the instrument, and the purpose of the transaction for which the instrument is brought into existence, the recitals or the language employed in the instrument should be given paramount consideration for judging whether a particular document is a deed of release or a deed of conveyance. Where the executant while executing an instrument conveying property but describes the same as a release deed, it is open to the Court to ignore the description given by the executant and deal with the document on the footing that is a sale deed. Similarly in case where the executant's intention can legally be achieved by executing a deed of release but the document is described as a conveyance, the description given by the executant can be ignored and the document can be dealt with as a deed of release, since the purpose and intention underlying the execution of the document but not the nomenclature or the description should be taken into consideration for determining the nature of the document.
15. The documents before us, of course, were described as deeds of release. The recitals of each of the documents also go to show that all the ten persons purchased the property jointly under two sale deeds dt. 7-11-1968 and 29-8-1973. All the ten persons are, therefore, co-owners. Out of them, four co-owners executed these four documents each of them relinquishing his share in the property i.e., his 1/10th share, in favour of the remaining six persons taking the consideration of Rs. 12,000/- which he contributed towards his share of purchase money at the time of the purchase conveying absolute title in their favour and undertaking to make the good to them the entire loss to be sustained by them due to any dispute raised by them in respect of the 1/10th share mentioned in the deeds.
16. As stated above, the description given in the instrument is not decisive in determining the nature of the document and it is, therefore, of no consequence. It is now well settled that a deed f release need not be gratuitous only. Even if it is supported by consideration still it can be treated as a deed of release if the intendment of the parties and the purpose of the transaction satisfy the requirements of a deed of release in a case of the property owned by the co-owners.
17. It is now well settled that each co-owner in theory is entitled to enjoy the entire property in part or in whole. In each of the documents in question, the recitals clearly show that each of the four executants has relinquished under each instrument his 1/10th share in favour of the remaining six co-owners. The District Registrar adjudicated each of the documents as a deed of conveyance or sale on the ground that the relinquishment of 1/10th share was not in favour of all the co-owners but only in favour of all the co-owners. For taking this view, he relied upon an unreported decision of the Full Bench of this Court in Referred Case No. 83 of 1970 dt. 18-1-1974. In that case, Lingareddy Ramakrishna Reddy died in a car accident on July 2, 1976. The joint family property was divided even prior to his death between himself and his son, Sri Venkatasubba Reddy.
After his death, the property owned by him came into the hands of his mother Smt. Subhadramma, his wife Smt. Venkatasubbamma, and son Sri Venkatasubba Reddy. The mother of the deceased executed a release deed in favour of her grandson over the property of her son to the extent of her share for a cash consideration of Rs. 32,000/-. She reserved her right over an extent of Ac. 6-00 of land valued at Rs. 2,000/- till her death and that is to go to her grandson after her death. This document was treated by the Board of Revenue as a deed of conveyance. The matter was referred to this Court under S. 57 of the Act. The Full Bench examined the recitals and held that it is not a deed of release but it is a deed of conveyance or sale. The Full Bench while holding that it is not a deed of release observed as follows :--
'Subsequent to the death of Ramakrishna Reddy, who died divided, on July 2, 1967, according to the deed in question, his mother, wife and son are entitled to the property left by the deceased. The release, in this case, is not in favour of all the persons who are interested in the property, but, it is only in favour of the son of the deceased. The release, to be effective and operative must be in favour of all the persons interested in the property. Here that is not the case. Therefore, we are of the view that the document in question cannot be considered or construed as a deed of release.'
18. Sri Ramarao, the learned counsel for the petitioners, contends that out of the ten co-owners four co-owners executed relinquishment deeds in favour of the remaining six co-owners and hence each of the documents ought to have been treated by the District Registrar as a deed of release. But the learned Government Pleader, on the other hand, contends that the District Registrar having followed the principles laid down by this Court in Referred Case No. 83/70 dt. 18-1-1974 has rightly treated the documents as deeds of conveyance.
19. The leading case on the aspect of relinquishment by co-owner is the decision of the Full Bench of the Madras High Court in Board of Revenue v. Murugesa : AIR1955Mad641 . In that case, out of the five partners, three partners of the registered firm known as 'Gudiyatham Lungi Company', executed a deed renouncing all their interests in the property receiving the proportionate value of their shares in cash. The relevant portion of the document reads as follows :
'This deed witnesseth that, in consideration of the sum of Rs. 9858-9-7 ps., the receipt whereof on or before the date of these presents through adjustment of accounts the releasors hereby release, extinguish, abandon, cancel and otherwise relinquish all their respective rights, claims, demands or interest, in any manner or to any extent, in respect of the property set out and fully described in the schedule hereunder.'
The parties charged the instrument with stamp duty taking it as release falling under Art. 44-D. But Board took it as a deed of conveyance and is, therefore, chargeable with the duty under Art. 9-A of the Stamp Act. The Full Bench observed that :--
'It is not the case f any one that there was a division of the property by merits and bounds and in accordance with the said shares. In such circumstances the document in and by which the co-owner purports to abandon or relinquish his claim to the share to which he would be entitled would be in the nature of release within Art. 44.
In such a case there need be no conveyance as such by one of the co-owners in favour of other co-owners. Each co-owner in theory is entitled to enjoy the entire property in part and in whole. It is not, therefore, necessary for one of the other co-owners to convey his interest to the other co-owners. It is sufficient if he releases his interest. The result of such release would be the enlargement of the share of the other co-owner. There can be no release by one person in favour of another, who is not already entitled to the property as a co-owner.'
Thus Rajamannar, C.J., speaking for the Bench succinctly laid down in a terse language all the principles necessary for treating a document, executed by one of the co-owners of the property in which the other co-owners have interest, as a release deed. Those principles are --
1. Each co-owner in theory is entitled to enjoy the entire property in part or in whole.
2. It is not, therefore, necessary for one of the co-owners to convey his interest to the other co-owners.
3. It is sufficient if one of the co-owners releases his interest.
4. The result of such release would be the enlargement of the share of the other co-owner.
5. In such a case there need be no conveyance as such by one of the co-owners in favour of the other co-owners.
6. There can be no release by one person in favour of another, who is not already entitled to the property as a co-owner.'
20. The ruling of the Full Bench in the Board of Revenue v. Murugesa : AIR1955Mad641 was followed by the subsequent Full Bench of the Madras High Court in chief Controlling Revenue Authority v. Patel, : AIR1968Mad159 . In this case the releasor and the releasee are brothers and they are having equal shares in the property as co-owners. The releasor relinquished his undivided half share and the interest in the entire property in favour of his elder brother for the discharge of the mortgage deed which forms the consideration for he releasee. The question that was decided was whether the documents should be construed as a deed of release or a deed of conveyance. Even though one of the co-owners (releasor) relinquishes his interest in favour of the other co-owner (releasee) for a consideration, the Full Bench took the view that the releasor can efface his rights in the property in favour of another named individual under an instrument which can be validly held as a deed of release.
21. The above two decisions of the Full Bench of the Madras High Court were followed by the Special Bench of the Allahabad High Court in Balwant Kaur v. State, : AIR1984All107 . In that case Smt. Balwant Kaur and Smt. Pritam kaur who are the daughters of the deceased Sardar Varyam Singh executed a relinquishment deed in favour of their mother and brother relinquishing their shares in the property owned by them as well as by their mother and brother as co-owners. The question was whether the deed should be construed a deed or release or a deed of conveyance. The Bench ultimately treated the deed as a deed of conveyance, and held that inasmuch as a release be made by one co-owner in favour of mother co-owner where title to the property already exists and he is just as much seized of the whole as a releasee or himself.
21A. We think is better to narrate the facts relating to these cases and also reasoning given by the learned judges in each of these two cases so that the decisions given by the two Benches can be understood in their proper prospective.
22. In Chief Controlling Revenue Authority v. Patel : AIR1968Mad159 (FB) the settlement deed dt. 5-4-1955 recited that there are certain immovable properties of which the settlor (N.K. Patel) and his first son (K.N. Patel) are co-owners and joint tenants with a right of survivorship reserved to the surviving party. The settlor out of natural love and affection for the second son (donee) makes the settlement of his undivided half share in the properties the other co-owner (the first son) joining in the instrument as thereby the right of survivorship comes to end. The document precees to state that the donee will thereafter hold the property along with the first son as tenant-in-common in equal shares. The next document is dt. 12-7-1957. This instrument refers to a mortgage dt. 14-7-1955 and the releasee (first son) assigns this mortgage to the releasor (second son) which forms the element of consideration for the release itself. The donee (second son) and the reeleasor purports to release his undivided half share and interest in the entire property in favour of the first son (releasee). The document proceeded to state that the amount of Rs. 51, 250/- secured under the mortgage forms the consideration in the sense that this half share itself is valued at about that figure. The second document is material document for giving a decision on the question in dispute. The learned Judges considered the ruling of Rajamannar, C.J., in Board of Revenue v. Murugesa : AIR1955Mad641 (FB) and observed in para 10 :
'.......................these two parties are co-owners with a title which cannot be demarcated or fixed with reference to any particular part of the property. In other words, there is a joint possession that can only be severed by partition and further commanalty of title in the sense that the title of the releasor is derived from the father who jointly held the property with the other son, the releasee. In that context we therefore do not think that the mere fact that these persons can be described in a certain sense as tenants-in-common would convert a document which purports to be a document of release into a conveyance.'
The learned Judges further observed in para 11 :
'......................we may emphasise that the essential ingredients of release are that there should already be a legal right in the property vested in the release and the release should operate to enlarge that right into an absolute title for the entire property as far as the parties are concerned...............Art. 55 refers to release, that is to say, 'any instrument...................whereby a person renounces a claim upon any other person, or against any specified property.' We do not think that this means that a releasor cannot validly state, in the instrument that he is effacing his rights in the property in favour of another named individual. There is an entitty known to law as a document of release and we have no reason to think that by this Article that entity was not indicated but only one particular kind a sub-species release, wherein the person in whose favour the release is declared or intimated is not designated by identity or name.
We would, therefore, unhesitatingly answer the question in the form that the document was rightly interpreted as a release under Art. 55 of Sch. 1, Stamp Act.'
23. In Balwant Kaur v. State : AIR1984All107 , one Sardar Waryam Singh died on 26-2-1970 leaving behind his widow Smt. Jiwan Devi, son Sardar Kuldeep Singh, and two daughters Smt. Balwant Kaur and Smt. Pritam Kaur as his heirs and legal representatives. Subsequently on 9-3-1970 the two daughters of Sardar Waryam Singh, namely, Smt. Balwant Kaur and Smt. Paritam Kaur executed a document describing themselves as the first party and their brother Sardar Kuldeep Singh and mother Jiwan Devi as the second party. The document contained the following stipulation :
'That in consideration of the receipt of a total sum of Rs. 2,200/- to be shared equally by the first party, they hereby release all the properties movable and immoveable possessed or owned by Sardar Waryam Singh, deceased at the time of his death from all their claims to any share or interest in the said properties or assets and declare that the said properties and assets will be free from all claims of any nature whatsoever against the said properties or assets by them or any person or persons claiming through either of them and neither they will claim any right or interest at any time hereafter in any property or assets which may be inherited by the second party from Sardar Waryam Singh deceased.'
When the said deed was presented for registration, the Chief Sub-Registrar came to the conclusion that even though the document, on the face of it, appeared to be a deed of release, it in fact was a deed of conveyance by which the two executants had conveyed their share in the properties inherited by them from their father to their mother and brother for a consideration. As in his opinion, the deed was deficiently stamped, he, after impounding the same, forwarded it to the Collector for necessary action under S. 38 of the Act. The Collector, after considering the objections raised by Sardar Kuldeep Singh and his mother Smt. Jiwan Devi, agreed with the view of the Chief Sub-Registrar that the said document was in fact a deed of conveyance and directed the Tahsildar to ascertain the market value of the properties and business assets left by Sardar Waryam Singh. The Tahsildar reported that market value of the two houses left by the deceased was 70,000/- and Rs. 40,000/- respectively. But then he was unable to ascertain the value of the business assets left by the decease. However, the Collector acting under S. 56 of the Act referred the matter for decision to the Chief Controlling Revenue Authority.
24. After considering the submission made on behalf of the objectors and the Department, the Chief Controlling Revenue Authority came to the conclusion that the two sisters had along with their brother and mother inherited the properties left by their father in terms of S. 14, Hindu Succession Act, 1956, as tenants-in-common and not as co-owners. It noticed a decision of the Madras High Court in the case of Chief Controlling Revenue Authority v. Rustom Nusserwanji Patel : AIR1968Mad159 (FB) and observed that under the law a release can be made by one co-owner in favour of another co-owner where title to the property already exists and he is just as much seized of the whole as the releasee or himself. As in the instant case the two sisters along with their mother and brother owned the property left by their father as tenants-in-common and not co-owners, they were incompetent to release their share. In the result, it concluded that the document in question was a conveyance and not a release.
25. The two objectors then moved the Chief Controlling Revenue Authority and prayed that five questions of law along with any other question deemed proper be referred for the opinion of the High Court. Question No. 2 is relevant for the purpose of our case and it is sufficient if it is mentioned hereunder.
'2. Whether on a proper and plain interpretation of the document dt. 9-3-1970 and the conduct of the parties the transaction in question is to be regarded as release or conveyance within the meaning of the Stamp Act?'
Answering this question, the Bench observed :
'In the instant case, the recitals made in the document clearly show that the two sisters were, in consideration of receipt of a sum of Rs. 2,200/- renouncing whatever claim they had in the property left by their father. They do not purport to convey their share in the properties left by their father to their mother and brother. It is thus a document which on the face of it is a deed of release, specified in Art. 55 of Sch., I-B to the Act.'
The learned Judges further observed that 'Clearly in the case the releasors owned the concerned properties in which they were seeking to release their interests as co-owners and not as joint owners. Referring to the decision of the Full Bench of the Madras High Court in Chief Controlling Revenue Authority v. Patel : AIR1968Mad159 the learned Judges observed that the Full Bench in that case took the view that like a joint owner a person, who owns the property as a co-tenant can also execute a release deed in favour of this co-owner. When such a deed is executed the share of the co-owner in whose favour the property is released gets augmented and in such a case it is not necessary for the executant to execute a deed of conveyance. The Full Bench further observed :
'It is thus clear that under the law it is open to a person holding property as a tenant-in-common to execute a release deed in favour of the other co-owner renouncing his claims to interest in the uppartitioned property and for this purpose it is not necessary for him to execute a deed of conveyance..........the recitals made by the two sisters in the document dt. 9-3-1970 clearly amount to renunciation of their interest in the properties left by their deceased father. They do not contain any stipulation whereunder they seek to convey their title to their mother and brother. The two sisters were fully competent to release their undivided interest in the property in favour of their mother an brother. When their objective could be achieved merely by executing a release deed, there is no reason to think that they in fact were executing a deed of conveyance misdescribing it as a release deed. Question No. 2, therefore, has to be answered by saying that on plain interpretation, the document dt. 9-3-1970, was a deed of release and not a conveyance deed within the meaning of the Stamp Act.'
26. When Rajamannar, C.J., speaking for the Bench in Board of Revenue v. Murugesa : AIR1955Mad641 unequivocally declared that it is not necessary for one of the co-owners to convey his interest to the other co-owners as it is sufficient if one of the co-owners releases his interest and there need be no conveyance by one of the co-owners in favour of the other co-owners, can we say that the rulings in Chief Controlling Revenue Authority v. Patel : AIR1968Mad159 (FB) and Balwant Kaur v. State : AIR1984All107 (SB) are in conflict with the ruling in Board of Revenue v. Murugesa since in these two decisions the learned Judges enunciated that the releasor can validly state in the instrument that he is effacing his rights in the property in favour of another named individual vide Chief Controlling Revenue Authority v. Patel or a release can be made by one co-owner in favour of another co-owner where title to the property already exists and as just as much seized of the whole as the releasee or himself vide Balwant Kaur v. State (supra).
27. We do not think that the rulings in Chief Controlling Revenue Authority v. Patel : AIR1968Mad159 (FB) and Balwant Kaur v. State : AIR1984All107 (SB) are in conflict with the proposition of law pronounced by Rajamannar, C.J., in Board of Revenue v. Murugesa : AIR1955Mad641 (FB). The reasons are obvious. If there are two co-owners as in the case of Chief Controlling Revenue Authority v. Patel and one of the co-owners relinquished his share in the property owned by them in favour of the other the result of the relinquishment is the enlargement of the share of the other co-owner (releasee). If one of the co-owners who is the releasor merely mentions in the document that he relinquishes his right of or interest in the property owned by them as co-owners instead of using the expression 'in favour of the other co-owner', the result is the same, namely, the enlargement of the share of the other co-owner. Rajamannar, C.J., never intended to prohibit such a conveyance in favour of the other co-owner, the effect of which is the enlargement of the share of the releasee.
What his Lordship really meant by stating that it is sufficient if one of the co-owners releases his interest and it is not necessary for one of the co-owners to convey his interest to the other co-owners and in such a case there need be no conveyance as such by one of the co-owners in favour of the other co-owner, is that a co-owner cannot and should not convey his share or interest in the property (owned by the co-owners) in favour of one or a few named co-owners/out of the several co-owners, as such a conveyance would defeat the principle that the relinquishment would result in the enlargement of the share of the remaining co-owner or co-owners. In other words, the well settled principle of relinquishment is the enlargement of the share or shares of the co-owners and that principle will be defeated if the relinquishment is made in favour of one or a few named co-owners from out of the several co-owners.
28. Judged from the view, the rulings in Chief Controlling Revenue Authority v. Patel : AIR1968Mad159 (FB) for the ruling in Balwant Kaur v. State : AIR1984All107 (SB) are not in conflict with the decision of Rajamanar, C.J., in Board of Revenue v. Murugesa : AIR1955Mad641 (FB), as in both the cases, there is enlargement of the shares of the co-owners and a particular co-owner from out of the several co-owners is not preferred, while making relinquishments.
29. Even the Full Bench of this Court in R.C. No. 83/70 dt. 18-1-1974 also took the view that inasmuch as the release was only in favour of the son of the deceased but not in favour of all the co-owners having rights and interests in the property, the deed was not found to be a deed of release but it is only a deed of conveyance as it was supported by consideration also. That ruling of this Court is again consistent with the proposition laid down by Rajamanner, C.J., in Board of Revenue v. Murugesa : AIR1955Mad641 (FB) that it is sufficient if one of the co-owners releases his interest and it is not necessary for one of the co-owners to convey his interest to the other co-owner since the result of such release would be the enlargement of share and in such a case there need be no conveyance as such by one of the co-owners in favour of the other co-owner.
30. In the case on hand, from out of ten co-owners, four co-owners executed separate four deeds each relinquishing his 1/10th share in the property in favour of the remaining six co-owners. If the four co-owners out of the ten co-owners would have executed one relinquishment deed, relinquishing their rights and interests in the property owned by all of them as in the case of Board of Revenue v. Murugesa : AIR1955Mad641 (FB) such a document could have been construed to be a deed of release. In the case of Balwant Kaur v. State : AIR1984All107 (SB), two daughters, who are co-owners, relinquished their rights and interest in favour of the remaining co-owners, namely, mother and brother. But in the case on hand, each has executed separate deed though of course in favour of the remaining co-owners. The execution of separate relinquishment deed by individual co-owner relinquishing his share is not contemplated by the decision of the Full Bench of the Madras High Court in Board of Revenue v. Murugesa.
31. The ruling in Board of Revenue v. Murugesa requires the release by one co-owner or by two or few co-owners in favour of all the co-owners. If each co-owner's document in the case on hand is taken into consideration, it reveals that the release is not in favour of all the co-owners. Thus the relinquishment is not in accordance with the law pronounced by the Full Bench in Board of Revenue v. Murugesa. The document, therefore, cannot be construed to be deeds of release.
32. Sri Ramarao, of course, argues that, by executing such a deed, the result is the enlargement of the shares of the remaining co-owners. We cannot accept this contention, as the execution of such a deed by each individual out of several co-owners in favour of the few co-owners is not contemplated by law of release under Art. 46. The law relating to releasee permits one co-owner or a few co-owners jointly, where there are more number of co-owners, to execute a deed or release relinquishing his interest or their interests in the property in favour of the remaining co-owners as in the case of the decisions of the Madras High Court cited above or in the case of the decision of the Allahabad High Court cited above.
33. Added to this, the recitals of the documents clearly show the intention of the parties or the purpose for which and the circumstances under which the transactions came into existence. They and also the warranty of title stated in the documents clearly establish that they are not deeds of release. The intention and the purpose of the transaction are given in the document thus :--
'I have jointly purchased along with the abovementioned persons and I have got 1/10th share from out of the property ............ As the property is not very much useful to me and as it is not fetching any income and as the elders advised me to include this property along with your property after receiving my sum of Rs. 12,000/- (twelve thousand only) and then only to include with the same property. I have agreed thereto and executed and delivered this deed of relinquishment of right. Therefore, I have hereby relinquished the entire right possessed by me in the sale deed mentioned property and executed all absolute rights in favour of all of you (sharers)...............Under this deed of relinquishment of right................ You shall enjoy with absolute rights from your son to grandson and so on in succession with power of disposition by way of gift, sale and transfer etc., as long as sun and moon enure while you so enjoy, I or my heirs or claimants through me shall never raise any disputes whatever at any time, hereafter with you on your heirs or claimants through you. Excepting the disputes that may be raised by the vendors in respect of 1/10th share mentioned in the schedule which will be under your enjoyment. I or my heirs shall settle all disputes that would cause prejudice to your right and enjoyment from my agnates or neighbours and other persons pertained to me and see to it that the same is continued in your favour free from obstruction. Not only that we shall also make good to you the entire loss sustained by you on our personal liability and on the liability of our other movable and immovable properties.'
34. These recitals besides the fact that each of the co-owners executed separate deed conveying 1/10th share in favour of a few but not in favour of all will clearly establish that the instruments are not the deeds of release but they are deeds of conveyance.
35. Sri Ramarao, the learned counsel for the petitioners, contends that similar recitals are found in the Full Bench decision of this Court in Board of Revenue v. Ramakrishnaiah : AIR1973AP275 . Relying upon this decision he contends that the documents in the present case should be treated as deeds of release but not deeds of conveyance. We find it difficult to accept this contention. It is now well settled that the each document should be considered on the basis of its recitals for determining the nature of the document. In the document considered by Krishnarao, J., who spoke for the Bench in Board of Revenue v. Ramakrishnaiah it is clear that it was executed by only one of the co-owners. The executant, Seetharama Sastry, with a view to take Sanyasa Asaramam, desired to give up the joint interest in the property as a co-owner in favour of the other co-owner. There is no warranty of title in that deed as recited in the documents before us.
It is true that the executant received certain amounts towards consideration in the case before us. But on the basis of that recital that he or his heirs or his representatives shall not raise any dispute in the enjoyment thereof, it cannot be concluded that the documents before us are similar to that which is the subject-matter of Board of Revenue v. Ramakrishnaiah : AIR1973AP275 (supra). We, therefore, find no substance in the contention of Sri Rama Rao. In fact the broad principles laid down by Krishnarao, J., in Board of Revenue v. Ramakrishnaiah (Supra) are also applicable to the case on hand as the learned Judge also followed the rulings of the Madras High Court cited above.
36. Having regard to our above discussion, we hold that each document before us is a deed of conveyance on sale but not a deed of release and it is, therefore, chargeable under Art. 20, Stamp Act. The reference is answered accordingly. No costs. Advocate's fee Rs. 500/-.
37. Answered accordingly.