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K. Manavala Naicker Vs. K.R. Gopala Krishnaiah Chetti - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1182 of 1966
Judge
Reported inAIR1969AP417
ActsStamp Act, 1899 - Sections 27, 35, 36 and 64; Registration Act; Madras District Municipalities Act, 1920 - Sections 78-A, 116-A, 116-B and 116-C; Madras Local Authorities (Duty on Transfer of Property) Rules, 1948 - Rules 2, 4 and 5; Code of Civil Procedure (CPC), 1908
AppellantK. Manavala Naicker
RespondentK.R. Gopala Krishnaiah Chetti
Appellant AdvocateC. Padmanabha Reddy, Adv.
Respondent AdvocateR. Venugopal Reddy and ;M. Krishnamachari, Advs.
Excerpt:
.....that a penal provision should not be read into any enactment, unless it is so specifically provided for. as we have already said, a penal provision like (section 35 of (sic) the indian stamp act cannot be made applicable by inferences......is a conveyance within the meaning of section 2 (1) of the stamp act and, therefore, is liable for stamp duty and penalty under art. 20 of schedule 1-a of the stamp act.the petitioner paid the stamp duty and penalty that were so levied against him. still another objection was taken on behalf of the respondent, that the document is inadmissible for the reason that a duty on transfer of property, in the form of surcharge liable under section 116-a of the madras district municipalities act, had not been paid. the trial court upheld this objection and held that both surcharge and also penalty are payable in respect of the document, under s. 116-a of the act. it is this order that the petitioner seeks to be revised in this revision petition. pending the revision petition, the petitioner has.....
Judgment:

Sambasiva Rao, J.

1. Obul Reddi, J., has referred this revision petition to a Division Bench. It is preferred against the order of the Subordinate Judge's Court, Chittoor passed in O. S. No. 64 of 1962, holding that surcharge and penalty are payable on a unstamped conveyance under Section 116-A of the Madras District Municipalities Act.

2. The respondent as plaintiff filed O. S. No. 64 of 1962, for declaration of his title to the plaint schedule property, which is a house situated within the municipal limits of Chittoor and for possession of the same after ejecting the petitioner therefrom. He based his claim on a sale deed dated 24-8-1964 from one Ramachandra Naicker, who was the owner of the property. The defence of the petitioner, who is the defendant the house orally from the owner Ramachandra Naicker for a sum of Rs. 9,900 and that in pursuance of the aforesaid oral sale, he paid a sum of Rs. 5,400 towards a mortgage decree passed against the owner and also discharged several other debts of the owner to an extent of Rs. 3,700. It is also stated by him that the owner Ramachandra Naicker followed up his oral sale by executing a letter dated 6-2-1950 confirming the sale. It is this letter that was sought to be let in evidence by the defendant. On behalf of the respondent, an objection was taken that the letter is inadmissible in evidence as it is not stamped and registered. The Court upheld that objection holding that the document is a conveyance within the meaning of Section 2 (1) of the Stamp Act and, therefore, is liable for stamp duty and penalty under Art. 20 of Schedule 1-A of the Stamp Act.

The petitioner paid the stamp duty and penalty that were so levied against him. Still another objection was taken on behalf of the respondent, that the document is inadmissible for the reason that a duty on transfer of property, in the form of surcharge liable under Section 116-A of the Madras District Municipalities Act, had not been paid. The trial Court upheld this objection and held that both surcharge and also penalty are payable in respect of the document, under S. 116-A of the Act. It is this order that the petitioner seeks to be revised in this revision petition. Pending the revision petition, the petitioner has applied for stay of the operation of the trial Court's order. On 20th of September, 1956, this Court granted stay of the payment of surcharge and penalty, but directed that the trial of the suit should go on and the document should be tentatively received in evidence, subject to final orders and also to any objections that may be raised under the Registration Act.

3. The first contention of Sri Padmanabha Reddi, the learned counsel for the petitioner, is that by virtue of the order of this Court dated 20th of September, 1966, the document has been admitted in evidence and some evidence also has been let in on that basis. Once a document is admitted, neither the trial Court at a later stage, nor the appellate Court in appeal, can call such admission in question. He relies upon Section 36 of the Indian Stamp Act in support of this contention, which lays down that 'where an instrument has been admitted in evidence such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.'

4. The learned counsel, therefore, argues that now that the document has been admitted for whatever reason it might be, it is not open for the trial Court or for that matter, any other Court to object to receiving that document in evidence, on the ground that surcharge has not been paid on it. He invites our attention to the decision of the Supreme Court in Javer Chand v. Pukhraj Surna, : [1962]2SCR333 and that of the High Court of Andhra in N. Basavaiah Naidu v. T. Venkateswaru, 1956 Andh WR 490 = (AIR 1957 Andh Pra 1022).

5. In 1956 Andh WR 490 = (AIR 1957 Andh Pra 1022) Viswanatha Sastri, J. was considering a case where a document had, in fact, been admitted in evidence, though is disregard of the provisions of S. 35 of the Stamp Act. The learned Judge took the view that Section 36 of the Stamp Act prohibited the rejection of a document, which had been already admitted and that objections could not be taken when there had been such admission of the document.

6. In : [1962]2SCR333 the Supreme Court held that -

'Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses. Section 36 of the Stamp Act comes into operation. Once document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same or a Court of superior jurisdiction.'

This was a case which arose under the Stamp Act directly. An examination of the facts would show that the two documents, about the admissibility of which the point in consideration arose before the Supreme Court, were exhibited and numbered under the signature of the presiding officer of the Court and in pursuance thereof, they were introduced in evidence and were also referred to and read in evidence by the counsel. It is thus clear that the documents in question were unconditionally received in evidence by the Court and it was in the light of those circumstances, the Supreme Court held that it was not open to the Court to go behind the order admitting the documents.

7. The contention of the learned counsel, based on Section 36 of the Stamp Act and the two above referred decisions cannot be upheld. It is not possible to accept that Section 36 of the Stamp Act would apply to a case, that arises under Section 116-A of the Madras District Municipalities Act. We will presently consider this aspect of the matter in detail. Even supposing it does, the principle behind Section 36 and the principle behind Section 36 and the two decisions is that there should be an `admission' within the meaning of the Stamp Act. If a document is provisionally admitted, subject to final orders that may be passed in a revision case or subject to objections that may be raised under any other enactment like the Registration Act, there is no actual admission of the document. At best, it can be said that the document is only tentatively brought on record. Such tentative or provisional reception of the document does not tantamount, in our view, to an admission of the document within the meaning of Section 36. Otherwise, any amount of difficulty and inconvenience may be caused to the parties and to the courts. For instance, in this case, the document has been directed by this Court, at the time of passing an order on an interlocutory application for stay, to be received by the trial Court, pending final disposal of the revision petition. The lower Court is bound to obey the directions issued by the higher Court and, therefore, the trial Court in this case has, in obedience to the directions contained in the order of this Court dated 20th of September 1966, received the document on record and marked it.

That interlocutory order which was passed on 20th of September, 1966, is subject to the final order that will be passed in the main revision petition itself. It ultimately, the revision is dismissed or some other order is passed which goes against the admission of the document the trial Court will once again be bound to exclude the document from admission. It is important to note that the order passed on 20th of September, 1966 is only an order that would be in force during the pendency of the revision petition and is, in any case, subject, to the final orders that are going to be passed in the main case. The interim order was evidently passed to avoid delay in the disposal of the matter. The interim order was evidently passed to avoid delay in the disposal of the matter. If the document received into record on the basis of such an interlocutory order is to be treated as finally admitted, it would lead to untenable positions when the final decision in the case is to the contrary. In all such cases, only tentative directions are given and there is no finality about the reception of the document. Such reception cannot, therefore, be an admission of the document.

8. We find support to this view in the following decisions:

The decision in S. Yerri Swami v. Vannurappa, Air 1949 Mad 300 is one of such cases. In that case, a plea was taken in the written statement that the suit promissory notes were inadmissible in evidence, because they were insufficiently stamped. A specific issue on the question of inadmissibility was also raised. The promissory notes were, however, marked without disposing of the issue. Satyanarayana Rao, J., dealing with `the contention that the defendant was precluded under Section 36 of the Stamp Act from raising the objection as to the admissibility of the promissory notes in the appellate Court, held that -

'There more serious objection to his remarks is that the learned District Munsif seems to have overlooked the plea in the written statement and the issue in the case which definitely raised the question of the insufficiency of the stamp. In the face of these objections it is difficult to see what necessity there was for the counsel for the defence to go in repeating his objections at each time. The very finding of the learned District Munsif discloses that when the promissory notes were marked at the preliminary trial, as Exs. P. and P. 1 he did not all consider the admissibility of the documents and must have marked them tentatively for the purpose of the disposal of that issue.

The learned appellate Judge in my opinion came to the correct conclusion in holding that in view of the circumstances set forth above there was no admission of the documents in evidence within the meaning of Section 36, Stamp Act. As in the present case there was a specific issue the present case there was a specific issue on the point and as the documents were marked at the preliminary trial without disposing of that issue, it cannot be said that the documents were admitted in evidence within the meaning of Section 36 so as to preclude the defendants from raising question that the documents were not properly stamped. Even if the learned District Munsif had decided issue 3 in favour of the plaintiff and came to the conclusion that they were admissible, it would have been perfectly open to the appellate Court to reserve that finding and reject the documents as it must be deemed that an admission under Section 36 must be only subject to his finding on issue 3.'

9. Deciding a similar question and referring to the aforesaid decision of Satyanarayana Rao, J., Satyanarayana Raju J., made the following observations in Simhadri v. Varalakshmi, AIR 1962 Andh Pra 398 in Paragraph 6:

'The question as to whether a document has been admitted or not depends upon the facts of each case. Where, as was the case in Venkanna v. Parasuram Byas, ILR 53 Mad 137 = AIR 1929 Mad 522 the clerk of the Court made the endorsement or where, as in the decision rendered by Mr. Justice Satyanarayana Rao, the admission was tentative, there can be no difficulty and it is open to the Court to consider the question of the admissibility of the document at the subsequent stage.'

10. The following observation of the Supreme Court in AIR SC 1655 at p. 1657, itself also lends support to our view.

'Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs. P. 1 and P. 2 and bore the endorsement `admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witness, Section 36 of the Stamp Act comes into operation.'

It is thus clear that only when the admissibility of a document is judicially determined and then the document is admitted as evidence, that Section 36 of the Stamp Act comes into operation. If, on the other hand, it is admitted by inadvertence without the Court applying its mind or admitted subject to the final decision of the case, there is no admission of the document within the meaning of Section 36.

11. For these reasons we cannot accept the first contention of the learned counsel for the petitioner that the admission of the letter dated 6-2-1950 cannot be called in question at any stage of the suit or in appeal.

12. The next and more substantial point made by the learned counsel for the petitioner is that the Madras District Municipalities Act does not confer any power the Civil Court to levy and to exact surcharge or penalty and the Civil Court has no jurisdiction to do so. He argues that, in any event, the Act does not contemplate the levy of a penalty. Sections 78A, 116A, 116B, and 116C are the provisions of the Act which are material for the consideration of this question. Section 78-A provides for the levy of a duty on transfers of property in every municipality. Section 116-A to 116-C come under the caption 'duty on transfers of property.' It states that the transfer duty is levied in the form of a surcharge on the stamp duty, at such rates as may be prescribed by the State Government. It, however, prescribes that such duty shall not exceed 5 percent on the amount specified in the table therein. Both parties are agreed that this section provides only the method of assessment and does not throw any light on the question on hand.

13. Section 116-B makes Sections 27 and 64 of the India Stamp Act applicable to the levy of the transfer duty. It would be useful to notice in this context, the scope of Section 27 and Section 64 of the Indian Stamp Act. The said Sec. 27 lays down that -

'The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein.'

Section 64 provides for penalty for omission to comply with the provisions of Section 27. Thus, by importing Sections 27 and 64 of the Indian Stamp Act into the Madras District Municipalities Act, for the purpose of levy and collection of the transfer duty Section 116-B only insists upon the disclosure of all material particulars and facts in the document under which a transfer is made so that the proper duty (may be - sic) levied and collected. It is also very significant to note that Section 116-B does not make other provisions of the Indian Stamp Act applicable to the levy and collection of transfer duty under the Madras District Municipalities Act, while it makes Section 27 and 64 alone, applicable. The last provision in the context of transfer duty is Section 116-C. It empowers the State Government to -

'make rules not inconsistent with this Act for regulating the collection of the duty, the payment thereof to the municipal councils concerned and the deduction of any expenses incurred by the Government in the collection thereof.'

It requires that the rules to be made, should not be inconsistent with the Act and that such rules should regulate the collection of the duty, its payment to the Municipal Council, and the deduction of any express incurred by the Government in its collection. It is thus to be seen, that none of the provisions of the Madras District Municipalities Act confer any power on any Civil Court to levy and exact transfer duty or any penalty in respect thereof.

14. The lower Court evidently sought to apply Section 35 of the Indian Stamp Act to this case and to exact the transfer duty and penalty from the petitioner on that basis. Section 35 of that Act is, as the Supreme Court observed in : [1962]2SCR333 , in the nature of a penal provision and has far-reaching effects. It is well established that a penal provision should not be read into any enactment, unless it is so specifically provided for. As we have stated, there is nothing in the Madras District Municipalities Act to show that Section 35 of the Indian Stamp Act should be read into its provisions. On the other hand, the reasonable inference is that it is not made applicable, because Section 116-B specifically makes, only Sections 27 and 64 of that Act applicable to the levy of transfer duty. Nothing prevented the legislature to include Section 35 of the Stamp Act that applies to the levy of transfer duty. It is inconceivable to infer that the legislature has omitted the inclusion of Section 35 of the Indian Stamp Act, by inadvertence. The very fact that Ss. 27 and 64 are specifically made applicable and not other provisions would lead to the interference that the legislature did not contemplate the application of Section 35 to the levy and collection of the transfer duty under the Madras District Municipalities Act.

15. The learned counsel for the respondent, however, invites our attention to Rule 3 of the 'Madras Local Authorities (Duty on Transfer of Property) Rules, 1948.' It is as follows:-

'Provisions of the Stamp Act to apply to transfer duty: - (1) All the provision of the Stamp Act and the rules made thereunder shall, so far as may be, apply in relation to the transfer duty as they apply in relation to the duty chargeable under that Act.

(2) Where the transfer duty or any portion thereof is less than two annas, such duty or portion shall not be collected.'

Relying on this rule, it is contended that all the provisions of the Stamp Act, including Section 35, would apply to the transfer duty. But, this argument overlooks the very material words in sub-rule (1) namely. 'so far as may be.' It is always a cardinal rule of construction, that unless the contrary is firmly established, the different provisions of an enactment are consistent and in accordance with the provisions of the main enactment and the powers conferred on the rule making authority under the Statute. Construing Rule 3 in the light of the aforesaid maxim, it would be seen that the provisions of the Stamp Act would apply to levy and collection of transfer duty, only in so far as they are permitted by the Act. As we have already stated, we do not find any warrant in the provisions of the Madras District Municipalities Act, for the supposition that Section 35 of the Indian Stamp Act is made applicable to the transfer duty. Rule 3 is obviously referring to Sections 27 and 64 of the Indian Stamp Act and the Rules made thereunder. Moreover, it is difficult to hold that the Rule making authority intended to make all the provisions of the Stamp Act applicable to the transfer duty, though the main enactment makes only two sections applicable.

16. A reading of Rule 4 makes the position clear. It refers to the duties of registering officers and requires those officers to see, whenever any instrument is presented for registration to them, whether the particulars referred to in S. 27 of the Stamp Act are set forth in the instrument. It is obviously for the purpose of ensuring that the proper transfer duty is levied and collected, that Sec. 27 of the Stamp Act is made applicable. Its application would enable the registering officer, to notice all the relevant particulars regarding levy of the duty. If such particulars are not stated, the parties to the transaction would become liable to the penalty, that would be imposed under Section 64 of the Stamp Act.

17. Sub-rule (2) of Rule 4 enjoins upon the registering officer to impound the document and forward it to the Collector, if the particulars as required under Section 27 of the Stamp Act, are not set forth in the document, so that the penalty under Section 64 of the Stamp Act could be levied. Rule 5 relates to `maintenance and consolidation of accounts in respect of transfer duty'. It requires that an account of the transfer duty should be maintained, showing separately the duty imposed under the Stamp Act and the transfer duty. It is also pertinent to note that even Rs. 5 does not make any reference to Section 35 of the Stamp Act.

18. It is thus seen that none of the provisions of the Madras District Municipalities Act or the relevant rules made thereunder, refers to Section 35 of the Indian Stamp Act and makes it applicable to the duty on transfer of property. If the legislature had intended to make such a penal provision as Section 35 of the Indian Stamp Act applicable to such duty, it would not have omitted it from Section 116-B, while referring to Sections 27 and 64 of that Act. As we have already said, a penal provision like (Section 35 of (sic) the Indian Stamp Act cannot be made applicable by inferences. There should be a specific provision to that effect before such penal provision is applied. In the absence of any such provision, we cannot uphold the contention that the Civil Court has power to levy or exact the duty on transfer and penalty in respect of such duty.

19. The learned counsel places reliance upon the definition of the word `chargeable' contained in Section 2 Cl. (6) of the Indian Stamp Act, which is in the following term:

'Chargeable' means, as applied to an instrument executed or first executed after the commencement of this Act, chargeable under this Act, and as applied to any other instrument, chargeable under the law in force in India when such instrument was executed or, where several persons executed the instrument at different times, for first executed.'

20. On the basis of this definition, it is argued that, `chargeable' means under any law in force in India and, therefore, an instrument which is chargeable under the Madras District Municipalities Act also comes within the purview of the Indian Stamp Act. No authority is placed before us in support of this contention. Besides, it is difficult to understand this definition as bringing, within its purview, instruments which are chargeable to any duty under any law in force in India, other than the laws relating to Stamp Duty. It appears to us that the words `chargeable under the law in force in India' mean, only under any other Stamp Law in the country. The definition itself makes the distinction clear. In its first part it deals with instruments chargeable under the Indian Stamp Act itself. In its second part, it refers to `any other instrument chargeable `under the law in force in India' which must logically mean the instruments other than the instruments chargeable under the Indian Stamp Act, but which are chargeable under any other Stamp Act, but which are chargeable under any other stamp law in force in the country. It is common knowledge that there are other stamp laws than the Indian Stamp Act, which are in force in the Country. For instance, there are separate Stamp Laws with varying schedules of Stamp duties now in force in several States. We have, therefore, no hesitation to reject this contention of the learned counsel for the respondent.

21. The learned counsel for the petitioner advances another argument in support of his main contention that S. 35 of the Indian Stamp Act does not apply to the transfer duty leviable under the Madras District Municipalities Act. Section 35 rules that instruments not duly stamped are inadmissible in evidence. The learned counsel, therefore, contends that Section 35 obviously refers to only those documents which are required to be stamped, but not duly stamped. He states that in the matter of payment of duty on transfers, cash is usually collected and it transfers, cash is usually collected and it is not paid in the form of affixing stamps on the instruments. He cities the practice that is obtaining in the City of Hyderabad, as an instance, that such transfer duty is collected by way of cash and not in the form of stamps. However, we do not propose to express any view on this aspect of the matter, because sufficient data is not made available to us in this regard.

22. The learned counsel on both sides state that there is no decided case this point. We are, therefore, obliged to decide the case on the provisions of the Madras District Municipalities Act and the Rules made thereunder.

23. For the reasons we uphold the contention of the learned counsel for the petitioner and hold that the Curt has no power to levy and exact the duty on transfers leviable under the Madras District Municipalities Act and to exclude an instrument from evidence, for non-payment of that duty and penalty.

24. We, therefore, allow the Civil Revision Petition and set aside the order of the lower Court. The lower Court will now proceed with the trial of the suit in accordance with law, after receiving the letter dated 6-2-1950 in evidence. Since there has been no guidance by way of a decided case one way or the other so far and the lower Court had to decide it entirely on the provisions of the Statute, we think that this is a fit case where we should direct that each party that each party should bear its own costs in the revision petition.

25. Petition allowed.


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