Skip to content


The Chief Controlling Revenue Authority, Gujarat State, Ahmedabad Vs. Mahesh Fakirchand Mehta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberStamp Reference No. 3 of 1971
Judge
Reported inAIR1977Guj158; (1977)GLR83(GJ)
ActsBombay Stamp Act, 1958 - Sections 2(9) - Schedule - Article 25; Transfer of Property Act, 1882 - Sections 54
AppellantThe Chief Controlling Revenue Authority, Gujarat State, Ahmedabad
RespondentMahesh Fakirchand Mehta and ors.
Appellant Advocate J.F. Nanavati, Asst. Govt. Pleader and; H.M. Bhagat, Adv. of Ambubhai and Divanji
Respondent Advocate J.G. Shah, Adv.
Excerpt:
- - the documents in question with which we are concerned in this reference clearly do not provide any interest or charge on the property......not duly stamped and, therefore forwarded the said documents to the collector under s. 37 of the bombay stamp act, 1958. the collector and assistant superintendent of stamps has passed orders under s. 39 of the bombay stamp act and levied stamp duty of rupees 360/- and penalty of rs. 5/- by his order of march 13, 1969.3. being aggrieved by this order of the collector, respondent no. i preferred revision application under s. 53 of the bombay stamp act to the chief controlling revenue authority who, being of the opinion that the application involved intricate questions of law, referred the following three questions to us for our opinion:(1) whether 'banakhat' rights which is the property under sale is a moveable property requiring stamp duty as per art. 25 (a) of schedule i of the bombay.....
Judgment:

B.K. Mehta, J.

1. A few facts need be noticed in order to appreciate the questions which have been referred to us for our opinion.

2. The first respondent is a partner in one partnership firm carrying on 'business under the name and style of Hemant Land Corporation. In lieu of the land bearing, S. Nos. 24, 27/2 and 28/1/2 situated within the revenue limits of village Paldi in Ahmedabad city, final plots Nos. 34, 35 and 36 sub-plots Nos. 28, 29 and 40 were allotted to the executers and trustees of the will of one Chhotalal Dahyalal Patel. The aforesaid sub-plots Nos. 28, 29 and 40 were agreed to be sold by the said executors and trustees to the aforesaid Hemant Land Corporation. The Hemant Land Corporation has agreed to sell the said plots to respondent No. 2 which is a Co-operative Housing Society. Respondent No. I accordingly presented eight documents in the nature of sale of Banakhat rights on May 2, 1958 in favour of respondent No. 2 in the office of Sub-Registrar, Ahmedabad. The Sub-Registrar impounded the documents as he was of the opinion that the same were not duly stamped and, therefore forwarded the said documents to the Collector under S. 37 of the Bombay Stamp Act, 1958. The Collector and Assistant Superintendent of Stamps has passed orders under S. 39 of the Bombay Stamp Act and levied stamp duty of Rupees 360/- and penalty of Rs. 5/- by his order of March 13, 1969.

3. Being aggrieved by this order of the Collector, respondent No. I preferred revision application under S. 53 of the Bombay Stamp Act to the Chief Controlling Revenue Authority who, being of the opinion that the application involved intricate questions of law, referred the following three questions to us for our opinion:

(1) Whether 'Banakhat' rights which is the property under sale is a moveable property requiring stamp duty as per Art. 25 (a) of Schedule I of the Bombay Stamp Act, 1958.

Or

(2) Whether 'Banakhat rights' which is the property under sale is immoveable property (land) requiring stamp duty as per Article 25 (b) of Schedule I of the Bombay Stamp Act, 1958.

Or

(3) If the answer to question No. 2 is in affirmative, whether it will attract the benefit of remission granted vide Government Notification Revenue Department No. CHM/ 903/-H, dated 28-3-1968 (Annexure-D) as the purchase in each case is by Registered Co-operative Housing Society,

4. It is really a matter of surprise for us why this reference has been sought for. Since in the opinion of the authority contract for sale of immovable property does not by itself create interest or charge on such property under S. 54 of the Transfer of Property Act. Since a contract for sale is in no way a conveyance and it does not confer any right or interest on such property, the Banakhat rights do not create any benefits to arise out of land which can be said to hp, in the. nature of rights in immovable property. In spite of this opinion, since the reference has been sought for, we will answer the questions referred to us.

5. Article 25 of the Bombay Stamp Act, 1958 prescribes duty for deed of conveyance. Clause (a.) of Art. .95 prescribes duty for conveyance other than a conveyance specified in Clause, (b), not being a transfer charged or exempted under Art. 59. Clause (b) of Article 25 prescribes duty for conveyance not being a transfer charged or exempted under Art 59 so far as it relates to immovable property situated within an Urban area. For attraction of Art. 25, the requisite condition is that the instrument must be an instrument in the nature of conveyance which is defined under S. 2(g) of the Bombay Stamp Act. S. 2(g) reads as under:

'(g) 'conveyance' includes a conveyance of sale and every instrument by which property, whether moveable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I.'

It is axiomatic to say that an agreement to sell does not convey anything in the first instance, nor is there any transfer of any property either moveable or immovable by an instrument inter vivos. S. 54 of the Transfer of Property Act provides that sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promise. It further provides that a contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties, though it does not of itself create any interest or charge on such property. The documents in question with which we are concerned in this reference clearly do not provide any interest or charge on the property. By the proposed agreements, respondent No. I did not intend to create any interest or charge in the property in favour of respondent No. 2. As has been said above, there is no transfer much less a conveyance of any rights or interest in the property covered by the documents in question. Question No. 2 which has been referred to us should, therefore, be answered in negative on the plain reading of the documents in question.

6. A faint attempt has been made on behalf of the Revenue that in that view of the matter, the documents in question would fall within the purview of Clause (a) of Art. 25 of the Bombay Stamp Act since the documents in question confer right on respondent No. 2 to obtain conveyance of the property covered by the said documents. We are not inclined to accede to this submission made on behalf of the Revenue since, as stated above, Clause (a) of Art. 25 postulates that there must be a conveyance. In our opinion, the documents in question do not convey nor transfer any rights nor create any interest in the property in question covered by the documents. They merely confer the right on respondent No. 2 to get benefits of the contract for sale on the terms and conditions mentioned in the said documents. In that view of the matter, therefore. question No. 1 should ,also be answered in negative. Question No. 3, therefore, does not arise for our answers

7. The reference is answered accordingly, but having regard to the facts and circumstances of this case there should be no order as to costs in this reference.

8. Reference answered accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //