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Subramaniam Chettiar Vs. Revenue Divisional Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported inAIR1956Mad454; (1956)2MLJ126
AppellantSubramaniam Chettiar
RespondentRevenue Divisional Officer and anr.
Cases ReferredRangaraju v. Kamesam
Excerpt:
- - thereupon this writ was filed on the ground that even if there is an alternative remedy open to the petitioner, like taking the matter in appeal or revision to the board of revenue that remedy was not equally convenient or beneficial or effective, since the petitioner's properties were in imminent danger of being sold for recovering the stamp duty and penalty as arrears of land revenue. but it is well settled now, by decisions of the supreme court and the high courts, that there is no absolute bar to entertaining writ petitions, and issuing a writ, even when there are alternative remedies, when these alternative remedies are, in the opinion of the court, not effective, speedy, adequate or sufficient, and the facts of each case have to be considered before deciding whether the.....panchapakesa ayyar, j.1. these three are connected matters. w.p. no. 921 of 1955 is against the order of the revenue divisional officer, devakottai, confirmed by the collector of ramnad at madurai, with certain modifications, levying stamp duty and penalty on two bonds from subramanian chettiar, the petitioner and the executant of those two bonds.2. the facts were briefly these : the two documents were produced before the subordinate judge of sivaganga by one palaniappa chettiar in o.s. no. 81 of 1952 on his file, filed by the said palaniappa chettiar, against the petitioner, subramaniam chettiar, for recovering moneys due under a document renewing the debt under the two bonds, which were labelled 'deposit letters'. the court-fee examiner put in a check-slip contending that the alleged.....
Judgment:

Panchapakesa Ayyar, J.

1. These three are connected matters. W.P. No. 921 of 1955 is against the order of the Revenue Divisional Officer, Devakottai, confirmed by the Collector of Ramnad at Madurai, with certain modifications, levying stamp duty and penalty on two bonds from Subramanian Chettiar, the Petitioner and the executant of those two bonds.

2. The facts were briefly these : The two documents were produced before the Subordinate Judge of Sivaganga by one Palaniappa Chettiar in O.S. No. 81 of 1952 on his file, filed by the said Palaniappa Chettiar, against the Petitioner, Subramaniam Chettiar, for recovering moneys due under a document renewing the debt under the two bonds, which were labelled 'deposit letters'. The Court-fee Examiner put in a check-slip contending that the alleged deposit letters were really bonds and had not been duly stamped and suggesting that they should be impounded and sent to the Collector. When the matter was taken up by the Court, the plaintiff Palaniappa Chettiar agreed to have the document impounded and sent to the Collector for levying the appropriate stamp duty and penalty. The learned Subordinate Judge impounded those documents under Section 35 of the Indian Stamp Act and sent them to the Collector (the Revenue Divisional Officer, Devakottai). The Revenue Divisional Officer, Devakottai, received the documents. The amount covered by the first document, which was dated 9th July, 1938, had been taken over to the second document, dated 19th September, 1946, including interest. The Revenue Divisional Officer, Devakottai, Mr. Subramaniam, finally passed an order under Section 40 of the Stamp Act levying a duty of Rs. 135 and penalty of Rs. 675 on the first document, and a duty of Rs. 60 and a penalty of Rs. 300 on the second document, and called upon the petitioner Subramaniam Chettiar (instead of the plaintiff Palaniappa Chettiar, as had been intended by his predecessor Mr. Ramakrishnan) to pay the amount of Rs. 1170. The Petitioner moved him to reconsider the order stating that the documents in question were only deposit letters, and not bonds. That petition was rejected by the Revenue Divisional Officer, Mr. Subramaniam, on 12th March, 1955, and the Petitioner was asked to pay the amount within 10 days of the receipt of his order, failing which he was told that the amount would be realised from him as arrears of land revenue and steps would be taken to prosecute him under the provisions of the Stamp Act, evidently under Section 62, as the executant of the two documents chargeable with duty but not duly stamped. The Petitioner then appealed to the Collector of Ramnad. The Collector reduced the penalty from five times the duty to three times the duty in both the cases, as he considered it to be somewhat excessive, but otherwise dismissed the appeal. As the Petitioner did not pay the amount, a warrant was issued for the attachment of the petitioner's properties for the recovery of the stamp duty and penalty. Thereupon this writ was filed on the ground that even if there is an alternative remedy open to the Petitioner, like taking the matter in appeal or revision to the Board of Revenue that remedy was not equally convenient or beneficial or effective, since the Petitioner's properties were in imminent danger of being sold for recovering the stamp duty and penalty as arrears of land revenue.

3. The only question raised by Mr. A. Sundaram Ayyar, the learned Counsel for the Petitioner, was that the Collector went wrong in requiring the Petitioner, the executant, to pay the stamp duty and penalty, instead of asking the plaintiff in the suit, who had produced the documents in Court in support of his claim and wanted them to be admitted in evidence to pay them. He said that there was a conflict of ruling regarding this and wanted a clear ruling from us as to the person against whom the Collector can legally proceed for recovering the stamp duty and penalty by proceeding against his property under Section 48 of the Stamp Act and recover them as arrears of land revenue, whether it is the person tendering the document in evidence, leaving him to recover, later on, under Section 44 from the person liable under the agreement or under Section 29, or from the executant himself in the first instance.

4. Writ Appeals Nos. 48 and 76 of 1955 are both filed against the judgment of Ramaswami, J., in W.P. No. 697 of 1954. Reported as Rangaraja Naidu v. Collector of Madras (1955) 2 M.L.J. 276. The facts in that Writ Petition were briefly these:

5. One Dr. Kamesam (since dead) filed O.S. No. 8 of 1947 in the Sub-Court, Salem, for recovering, two lakhs of rupees from the defendant, Rangaraju Naidu, the Agent of Burmah-Shell, Suramangalam, Salem, on the basis of the conveyance of half the patent right for manufacturing and exploiting a wood preservative called ascu invented and possessed by him. The document was executed according to him on 9th. April, 1945, at Bangalore in Mysore State, which was then foreign territory, as the independence of India and the merger of Mysore in it had not occurred by then. A copy of the document, produced by Dr. Kamesam along with the plaint, stated that half the patent right was being conveyed to the defendant, Rangaraju Naidu, for three lakhs of rupees of which Rs. 50,000 had been paid by means of a cheque on 12th March, 1945, and Rs. 50,000 was to be paid at the time of the execution and registration of the conveyance deed, and the balance of two lakhs of rupees was to be paid in convenient instalments, on the dates named in the document, on or before 30th April, 1946. The assignee, Rangaraju Naidu, had covenanted, under Clause 2 of the conveyance deed, to pay the balance of two lakhs of rupees in instalments on or before 30th April, 1946 and had signed in the conveyance, as a co-executant, along with Dr. Kamesam because of the obligation undertaken by him under that document. Dr. Kamesam had, of course, also signed as executant in token of the obligation undertaken by him regarding the conveyance. The conveyance deed was stamped with a stamp duty of Rs. 4,687-8-0, the correct stamp duty payable on such a conveyance under the Mysore Stamp Act, and the entire duty was paid by the assignee, Rangaraju Naidu, as per the agreement between the parties. The original conveyance deed was kept in the possession of Rangaraju Naidu, arid only a copy was given to Dr. Kamesam.

6. On 31 d July, 1946, the defendant, Rangaraju Naidu, contended in a notice that Rs. 1,00,000 more than what was admitted in the plaint had been paid to Dr. Kamesam by him, by a payment made on 29th March, 1945, and that only Rs. 1,00,000, were due from him, and that the conveyance was executed actually on 2nd April, 1945 and the date had been altered by Dr. Kamesam to 9th April, 1945. Thereupon Dr. Kamesam filed O.S. No. 8 of 1947 on 19th December, 1946. The defendant contended in his written statement that the conveyance deed was vitiated by undue influence and misrepresentation amounting to fraud by Dr. Kamesam, and that the transaction was unfair and unconscionable in its nature, and advantage had been taken of the defendant's youth and inexperience, and that the conveyance deed, which ought to have been stamped under the Madras Stamp Act, as it related to the conveyance of property rights in Madras State required a stamp duty of Rs. 9,000 under the Madras Stamp Act, and had not been stamped properly, and was inadmissible in evidence and unenforceable. Thereupon, Dr. Kamesam summoned the defendant to produce the original conveyance deed, and the defendant produced it in Court, and Dr. Kamesam wanted to mark it on his behalf in order to establish his claim. On 23rd April, 1950, the Subordinate Judge of Salem impounded the document under Section 35, as not duly stamped, and sent it to the Collector for action under Section 40 of the Stamp Act, as the defendant, who had produced the document, did not pay the stamp duty and penalty.

7. A revision petition was filed by the defendant in the High Court against the order of the Subordinate Judge. Govinda Menon, J., heard arid decided that Revision petition, after giving notice to the Government Pleader and hearing him, and his judgment is reported in Rangaraju Naidu v. Kamesam : AIR1953Mad698 . He agreed with the defendant that a mere handing over of a document to an officer of Court, even if it was a result of a summons from Court, could not be said to be 'production' of the document by him in Court, as there must be volition on the part of the person bringing it to Court to use it for some purpose, and the mechanical act of carrying the document as a result of an order of Court and handing it over to an Officer of Court would not be 'production', but that such an act would come within the meaning of the term 'comes before the Court in the performance of its judicial functions' within the meaning of Section 33 of the Stamp Act and so the document could be impounded if not properly stamped. He, however, left it open to the Collector or the Revenue Board to decide which party was liable to pay the stamp duty and penalty, as it had not been finally determined which of the parties, whether Dr. Kamesam or Rangaraju Naidu, was liable to pay the stamp duty and penalty.

8. After this the suit was withdrawn to the Original Side of this Court and was numbered as C.S. No. 30 of 1953. Then the original of the assignment deed was sent to the Collector of Madras for action under Section 40 of the Stamp Act. The Collector levied a stamp duty of Rs. 9,000, the correct duty due in the Madras State on the document, and a penalty of Rs. 5, under Section 40(1)(b) of the Madras Stamp Act, and gave a notice to the defendant Rangaraju Naidu to remit the amount on or before 20th October, 1954, in order to return the document duly stamped with the necessary certificate to this Court, as directed by the order of this Court dated 13th August, 1954.

9. Rangaraju Naidu thereupon filed W.P. No. 697 of 1954 in this Court. Ramaswami, J., heard the writ petition and held, after an elaborate discussion of the learned rulings on the subject and the opinion of leading commentators on the Stamp Act that the Stamp Act is silent as to the person from whom the Collector can demand the proper stamp duty and penalty payable under Section 40 on a document forwarded to him by a Court, and that Judicial Opinion is sharply divided in regard to the initial recovery of such stamp duty and penalty by the Collector, one view holding that it should be from the person who wishes the document to be admitted in Court for the purpose of resting his claim in the suit upon it, the other view being that the stamp duty and penalty were compulsorily recoverable only from the person liable to pay the duty in the first instance. In his opinion, the language of Sections 40 and 48 and the provision made in Section 44, and the balance of convenience, and fair play, and the fact that an instrument, although not written upon a stamp, is effective from its commencement but is incapable of being made use of in evidence until it is stamped, all indicated that the recovery of stamp duty and penalty by the Collector should in the first instance be from the party wishing to use the document in evidence in support of his claim, leaving it open to him to recover the same under Section 44 from the person liable in the first instance, under the agreement or under Section 29. In that view, he quashed the order of the Collector directing the defendant Rangaraju Naidu to pay the stamp duty and penalty, and held that Sonti and Sivaji, the legal representatives of Dr. Kamesam, the plaintiff in the suit, who wanted the document in evidence in support of their claim, were the persons to be proceeded with in the first instance by the Collector for recovering the stamp duty and penalty.

10. The Collector of Madras has filed W.A. No. 48 of 1955 against the order of Ramaswami, J., raising two main contentions, firstly, that a writ would not lie, as there was an alternative remedy open to Rangaraju Naidu, viz., an appeal to the Board of Revenue under Sections 56 and 57, and secondly, that the Collector's order directing Rangaraju Naidu to pay the stamp duty and penalty; as he was the j person deriving benefit under the document by letting it in evidence in support of his contentions against the validity of that document was correct. Sonti and Sivaji have filed W.A. No. 76 of 1955 against the same order of Ramaswami, J., on three grounds: firstly, that a writ would not lie as there was another remedy open by way of appeal or revision to the Board of Revenue; secondly that this foreign document had not been 'received in India outside the Part B States,' (under Section 18) by them and this document was not produced by them into Court, and had not come to Court by their bringing it from Mysore, and that it had been brought by Rangaraju Naidu who was liable to pay the stamp duty and penalty, because he was the person liable under the agreement and under Sections 3, 18 and 29 for the entire duty and had, indeed, paid the stamp duty payable in Mysore; and thirdly, that Rangaraju Naidu was the person who had raised contentions regarding the validity of the conveyance deed, and alleged alterations therein, and had, therefore, to let in the document as evidence in support of his contentions.

11. We have heard the learned Advocate-General regarding all these matters, and his arguments have been of great help to us. The first question that arises for determination in all these three matters is whether these petitions for issue of writs of certiorari were maintainable in this Court, especially when there were two alternative remedies available, viz., moving the Board of Revenue, either to revise the order or to make a reference to this Court, and the petitioners, after paying the stamp duty and penalty demanded by the Collector, could ask the Court to include them in the Order as to costs in the suits, under Section 44(3) of the Stamp Act. We are of opinion that these petitions for issuing writs of certiorari would, in the circumstances, lie. It has never been doubted that this Court, as the inheritor of the jurisdiction possessed by the original Supreme Court, has power to quash the order of an inferior tribunal, quasi-judicial or administrative, if that order was passed either without jurisdiction or in excess of jurisdiction or if there is an apparent error in the order. This power of entertaining a writ petition for certiorari existed long before the Constitution, and has been enormously increased under Article 226 of the Constitution of India relating to Fundamental Rights. It is clear that this Court can exercise, at the instance of an aggrieved party, irrespective of any fundamental right being involved in the matter, such a power of issuing a writ of certiorari in suitable cases. Normally it will not issue a writ where there is an alternative remedy. But it is well settled now, by decisions of the Supreme Court and the High Courts, that there is no absolute bar to entertaining writ petitions, and issuing a writ, even when there are alternative remedies, when these alternative remedies are, in the opinion of the Court, not effective, speedy, adequate or sufficient, and the facts of each case have to be considered before deciding whether the alternative remedies are speedy, effective, sufficient or adequate. In the present case, the writ petitions were, in our opinion, rightly entertained, as the alternative remedies were not Speedy, effective and adequate. The properties of the petitioners would be attached and sold for the stamp duty and penalty for recovering the amount as arrears of land revenue under Section 48 of the Stamp Act, and warrants were issued or were about to issue. There was no point in taking to the alternative remedies indicated above as they would not be speedy, effective or adequate to afford relief before the safe of the properties was effected. The learned Advocate-General and the other counsel had no valid contention to urge regarding this. We hold that the writ petitions, were properly admitted in all these three cases.

12. The next question for determination is as to who is the person against whom the Collector has to proceed under Section 48 by way of recovering the stamp duty and penalty as arrears of land revenue by distress and sale, or by attachment and sale, where defectively stamped documents have been produced in Courts or have come before the Court in the performance of its functions and have been impounded and sent by the judge to the Collector for action under Section 40. Sections 40 and 4S of the Stamp Act are silent as to the person against whom the Collector has to proceed, that is, whether against the executant, who is the person bringing the document into existence and is primarily liable to the State, under Section 17, which says that all instruments chargeable with duty and executed by any person in India, except Part B States, shall be stamped before or at the time of execution and under Section 62 which says that he shall be liable to be prosecuted and punished for executing or signing otherwise than as a witness in an instrument chargeable with duty, without the same being duly stamped, or whether he should proceed against the person liable for the stamp duty payable on the instrument either under the agreement between the parties or under Section 29 providing for cases where there is no such agreement to the contrary, or whether he should proceed against the person who wants to let in the defectively stamped instrument as evidence to prove his case in any suit or proceeding before the Court which impounds it. There is absolutely no doubt that an unstamped or defectively stamped document is not void and that it is effective from the date of its execution, though it is incapable of being made use of, as evidence, until it is stamped properly. As Lindley, L.J., has remarked in Powell v. London and Provincial Bank (1893) 2 Ch. 555.

No case that I know of can be cited to show that an erroneous stamp would invalidate the deed.

13. There is no difficulty where the person who wishes the document to be admitted as evidence in Court is the person who is initially bound to bear the expense of providing the stamp duty, like the executant. But, very often, the person wishing to admit the instrument as evidence in Court will not be the executant, as the suit may be, and very often is, against the executant. In such a case, the question, when the party wishing to let it in as evidence does net pay the stamp duty and penalty, and it is impounded and sent to the Collector, is whether the party bringing a suit and wanting to let in the document as evidence in his favour (or the defendant, who wants to let in the document in his favour) can be compelled by the Collector, under Sections 40 and 48 to pay the stamp duty arid penalty when he is not the executant. There are two rulings of two High Courts, holding contrary views and hence the difficulty of settling the question. In Secretary of State for India, in Council v. Bhasharatullah I.L.R.(1908) All. 271, a Bench of the Allahabad High Court, consisting of Knox and Aikman, JJ., has held that if a plaintiff produces in Court in support of his claim an unstamped or improperly stamped document, he primarily is the person from whom the stamp duty and penalty have to be recovered by the Collector under Section 40 of the Stamp Act, and the person to be proceeded against under Section 48, and that such duty and penalty cannot be recovered from the other parties to the instrument. A Special Bench of the Lahore High Court, consisting of three judges, Dalip Singh, Bhide and Blacker, JJ., has decided in Mohammad Hussain v. Emperor I.L.R. (1940) Lah. 637 : A.I.R. 1940 Lah. 315, that Sections 35, 40 and 48 of the Stamp Act and the other Sections of that Act contain no provision to enable either the Court or the Collector to compel the person, who wishes to have an. insufficiently stamped document admitted in evidence in Court, to pay the duty or the penalty when he is not the person who was originally bound to bear the expense of providing the duty and so the stamp duty and penalty cannot be recovered from him under Section 48. They considered the ruling in Secretary of State for India in Council v. Bhasharatullah I.L.R.(1908) All. 271, and expressly dissented from the view taken therein. They went en to say:

As already pointed out, there is no provision in the Act making a person, who merely presents an insufficiently stamped document for being admitted in evidence, liable for payment of the requisite stamp duty or penalty on the document. He cannot, therefore, be considered to be a person from whom the stamp duty or penalty is due, and consequently the same cannot be recovered from him under Section 48. If the stamp duty or penalty has to be recovered compulsorily, it can be legally recovered, under Section 48, only from the person from whom the same is due. In order to ascertain the person or persons from whom the duty or penalty is due, we must go back to, Section 29.... But it may be observed that if it is found that the Stamp Act does not in fact fix the liability for payment of stamp duty on any particular person in the case of any instrument, the consequence will presumably be that the Collector will keep the impounded document in his custody and ho person interested in the document will be able to make any use of it until and unless the necessary stamp duty and penalty is paid.

We are unable to agree with the views of either, Bench in full. We are of opinion that a distinction must be made between the person liable in the first instance to pay the stamp duty and penalty under the agreement between the parties or under Section 29, which provides for that liability in the absence of an agreement to the contrary, and the person from whom the Collector can levy the stamp duty and penalty under Sections 40 and 48. The State, obviously, is not a party to any such agreement between the parties and cannot be, therefore, bound by any such agreement, or by the provisions of Section 29 fixing the liability for the stamp duty on one of the parties in the absence of an agreement to the contrary. So, Section 29, relied on so much be the learned Judges in Mohammed Hvssain v. Emperor I.L.R. (1940) Lah. 637 : A.I.R. 1940 Lah, can have no application to the Collector's powers under Sections 40 and 48. Section 44 relied on so much by the learned Judges in Secretary of State for India in Council v. Bhasharatullah I.L.R.(1908) All. 271 provides only for the case of parties who have agreed to pay stamp duty inter se or who would be bound, under the provisions of Section 29, or any other enactment in force, at the time when the instrument was executed, to pay the stamp duty in the absence of an agreement to the contrary. Section 44 does not deal with the right of the State to levy the stamp duty and penalty under Sections 40 and 48. Nor does it provide for the State applying to the Court for a provision, as regards the stamp duty and penalty payable to it, in its order of costs in the suit or proceeding.

14. We are, therefore, of opinion that the solution to the question propounded above, as to who is the person, against whom the Collector could proceed under Sections 40 and 48, has to be searched for elsewhere than in Sections 29 and 44, and we are unable with great respect, to accept the decision in either of the two rulings quoted above.

15. The learned Advocate-General has suggested, and we agree with him entirely that the true solution lies by following the clue afforded by Sections 17 and 62 regarding instruments chargeable with duty and executed by any person in India, except Part B States, and that the person against whom the Collector should proceed in all such cases, under Sections 40 and 48, is the executant of the document. Section 17 says, 'An instrument chargeable with the duty and executed by any person in India, except Part B states shall be stamped before or at the time of execution', and Section 62 says that the executant of such instruments shall for every such offence be punished with fins which may extend to Rs. 500, provided that when any penalty has been paid in respect of any instrument under Section 35, 40 or 61, the amount of such penalty shall be allowed in reduction of the fine, if any, subsequently imposed under this section in respect of the same instrument upon the person who has paid such penalty. Thus, these sections read together indicate, in the opinion of the learned Advocate-General, with which opinion we entirely agree, that the executant of such document is the person against whom the Collector should proceed under Sections 40 and 48 for collecting the stamp duty and penalty. It is significant that the proviso to Section 62 makes mention also about the penalty levied under Section 40 and makes a provision for its deduction from the fine. Sections 17 and 62 show that the agreement between the parties and the provisions of Sections 29 and 44 are applicable only between the parties, leaving the Collector's right under Sections 40 and 48 unaffected. It is well settled that if the Collector passed an-erroneous order by proceeding against the wrong person under Sections 40 and 48 his order will be subject to appeal or revision by the Board of Revenue, or quashing by this Court, either on a reference by the Board of Revenue or on a writ. The ruling of a Full Bench of the Lahore High Court, consisting of Tek Chand, Abdul Qadir and Bhide, JJ., in Thakar Das v. The Crown I.L.R.(1932) Lah. 745 (F.B.), shows the maintainability of such a reference and revision, and we have already stated above that a writ also lies to this Court in suitable cases. We may add that where several persons jointly execute a document, the Collector can proceed under Sections 40 and 48, against any of them, as they are all jointly and severally liable. He is not bound to collect the pro rata shares from each. That pro rata division is a matter for them to effect amicably or get settled in suits for contribution, or by moving the Court to include in its order of costs where suits and proceedings are pending. That Section 29 will not bind the Collector under Sections 40 and 48 is not only clear from the fact that that section and Section 44 relate only to rights between the parties (the Collector is, of course not one of them) but can also be deduced from the ruling of Venkataramana Rao, J., in Panakala Rao v. Kumaraswami (1937) 46 L.W. 470. There the learned Judge has held that Section 291 of the Stamp Act will only apply to a case where a document is not produced before the Court, and that once the document has been produced before the Court arid tendered in evidence, the plaintiff is not entitled to recover the penalty levied from him in respect of that document except under Section 44 of the Stamp Act when that amount has been included in the costs at the time of passing of the decree.

16. Mr. K. Krishnaswami Iyengar and Mr. A. Sundaram Iyer for the executants of the three instruments in these writs, urged that, under the 1949 Stamp Manual, the Collector has been directed not to levy stamp duty and penalty under Section 48 from the producer of a document, unless he is the executant or is bound under Section 29 of the Stamp Act to pay the stamp duty, and that, therefore, Section 29 would be applicable. We do not agree. It is obvious that the instructions in the Stamp Manual are only administrative instructions and cannot bind Courts which are bound to consider the matter in the light of provisions of law and lay down the correct principle applicable to the case. The administrative direction in the Stamp Manual was, in our opinion, based on the reliance on Section 29 by the Special Bench of the Lahore High Court in Mohammad Hussian v. Emperor I.L.R. (1940) Lah. 637 : A.I.R. 1940 Lah., the latest ruling which had differed from the ruling in Secretary of State for India in Council v. Bhasharatullah I.L.R.(1908) All. 271, and has laid emphasis on Section 29. It is obvious that such administrative directions, issued at a high level, are based on the rulings current at the time. It may also be noticed that the directions in the Stamp Manual do not preclude proceedings against the executant, the person who brings the document into existence and the person we have held primarily liable to be proceeded against by the Collector, under Sections 40 and 48, in the case of an instrument executed in India, except Part B States.

17. Nor can the contention of Mr. Krishnaswami Iyengar and Mr. Sundaram Iyer, for the executants of the three instruments in these writs, than in some cases the executants, after paying the stamp duty and penalty levied under Sections 40 and 48 of the Stamp Act, cannot get recoupment of the whole or part thereof from the parties liable under the agreement or under Section 2g to pay the stamp duty, by proceeding under Section 44 as they are not innocent parties not liable for the default by any valid argument against our finding that the executants of such defectively stamped or unstamped instruments in India, except the Part B States, are the persons against whom the Collector should proceed under Sections 40 and 48. No doubt, the rulings in Raman Chetti v. Nagappa Chetty (1915) 2 L.W. 1024, Sundararami Reddi v. Pattabhiramireddi (1915) 2 M.L.J. 253, and Kashinathsa v. Narsingsa : AIR1955Bom368 , show as pointed out by Messrs. Krishnaswami Iyengar and Sundaram Iyer, that Section 44 of the Indian Stamp Act is only intended to give a right to an innocent party, not guilty of any default in the matter of the proper stamping of a document, to recover the duty and penalty he is obliged to pay from the person or persons guilty of default, and that the section is not intended to enable one of several persons who are under a common duty to pay proper stamp duty on a document in proportionate shares to file a suit and claim from the others contribution in respect of the amount of the stamp duty and penalty which he has been compelled to pay in full owing to their common default, and the executants cannot, therefore, after paying the stamp duty and penalty in full to the Collector, under Sections 40 and 48, as a consequence of their default, file suits for contribution against the others, like co-executants, equally in default. But, then, there is no real hardship or injustice involved in this, even though mere hardship will be no reason for deviating from the law. The executants, after paying the stamp duty and penalty in full on documents which have been produced or have come before the Court and been impounded and sent to the Collector, can apply to the Court under Section 44(3) to provide for the stamp duty and penalty levied from them under Sections 40 and 48 in the costs, and can get appropriate relief, if entitled thereto. The ruling of Venkataramana Rao, J., in Panakala Rao v. Kumaraswami (1937) 46 L.W. 470, also shows that the Court can include in its order regarding costs, in suits or proceedings, such stamp duty and penalty paid under Sections 40 and 48 if it thinks fit.

18. Now the question arises as to who are the executants of such instruments who can be proceeded against under Sections 40 and 48 by the Collector for recovering the stamp duty and penalty. Section 2(12) of the Stamp Act says 'executed' and 'execution' used with reference to instruments, mean 'signed' and 'signature.' But Section 62 makes only persons signing otherwise than as a witness liable to prosecution and penalty, showing thereby that witnesses who sign any document are not 'executants' bound to pay the stamp duty and penalty. The Privy Council has held as early as 1927 in Puran Chand Nahatta v. M.N. Mukherjee , that persons executing, i.e., 'executants' do not include all persons signing in the document but only persons who by a valid execution have entered into an obligation under the document. So, not only witnesses but even other persons, like persons in whose favour the document is executed, but who undertake no obligation under the document, will not be executants for purposes of being proceeded against under Sections 40 and 48. In Shams Din v. The Collector Amritsar I.L.R.(1936) Lah. 223 , a Special Bench of the Lahore High Court consisting of three Judges, Addison, Goldstream and Abdul Rashid, JJ., has held that fourteen creditor firms, which had signed in the conveyance deed as vendees, the petition writer who had signed in it as writer, and the witnesses, who had signed as witnesses, could not be said to have executed the instrument within the meaning of Sections (12) of the Stamp Act, and would not be liable therefore, under Sections 40 and 48. But, of course, this does not preclude any number of persons being liable as executants if they have signed the instruments and undertaken some obligation thereunder, as held in the Privy Council ruling in Puran Chand Nahatta v. M.N. Mukerjee . Mr. Krishnaswami Iyengar, for the appellants in W.A. No. 76 of 1955, urged that, under this interpretation, Rangaraju Naidu, the petitioner in the writ, will also be an executant of the instrument of assignment of half the patent right, along with Dr. Kamesam, as he had undertaken substantial obligations under the deed namely, the payment of the balance of two lakhs in instalments by the dates fixed. The learned Advocate-General agreed with that view, and we also agree, as Mr. Bhashyam for Rangaraju Naidu had no valid argument to urge against it, and as the Privy Council ruling referred to above directly covers it.

19. In the view we have taken regarding the executants being the persons who would be liable to be proceeded against by the Collector for recovering the stamp duty and penalty under Sections 40 and 48 it follows that the order of the Collector regarding the stamp duty and penalty leviable on the two bonds concerned in W.P. No. 921 of 1955 was correct, as Subramaniam Chettiar, the petitioner would be the executant of those documents and the person proceedable under Sections 40 and 48. So, W.P. No. 921 of 1955 is dismissed. But, as the law was not clear at the time the writ petition was filed, we direct all the parties to that petition to bear their own costs.

20. Regarding W.P. No. 697 of 1954 covered by the two writ appeals, there are, according to Mr. Krishnaswami Iyengar, three differences. The first is that the instrument of assignment of half the patent rights was executed in Mysore, a Part B State, to which Sections 17 and 62 and indeed the Indian Stamp Act itself will not apply and that therefore, the rule that the executants are the persons who are liable to see that such instruments are stamped before or at the time of the execution, cannot apply in terms and can only be applied if at all, by adopting that rule analogously as a rule of equity. Secondly, it is urged that this instrument was stamped properly under the Mysore Stamp Law, and was executed in Bangalore, and so would not be liable to be charged with any stamp duty or penalty, even though it relates also to property in India unless it was brought outside Mysore to India outside the Part B States, and the liability to pay such Indian Stamp duty and penalty arises only when the instrument which relates also to property in India was brought to a part of India outside the Part B States, namely, Salem and the liability lies on the person who brings such an instrument to India or receives it in India outside the Part B States, as the Indian Stamp Act is not yet brought into operation in Mysore and the Part B States, and the executant of such an instrument in a Part B State cannot be prosecuted as executant under Section 62 and there is some time given in the Stamp Act under Section 18, for a private person getting such an instrument into India or receiving it in India outside the Part B States being properly stamped. The third difference urged is that Rangaraju Naidu is also an executant of the instrument in question, along with Dr. Kamesam.

21. Though the question is not free from difficulty, after considering it thoroughly we agree with the learned Advocate-General that the proper view to take is that the Collector should proceed even in such cases where the instruments relate to property in India outside the Part B States (otherwise there is no liability) to levy the stamp duty and penalty, under Sections 40 and 48 of the Stamp Act, from the executants both for the sake of uniformity and acting on the equities. The provisions of Section 17, though not strictly applicable to a document executed in a Part B State like this, can be applied analogously and by way of equity. It is obvious that any person who executes a document and brings it into existence is bound to make that document valid in all ways as evidence, as by stamping it properly for use in India outside the Part B States, like Salem, seeing that the assignment was to a person living in Salem for use, and exploiting the patent rights assigned in a part of India outside the Part B States. It would be within the knowledge of the executant in such a case that a document relating to properties or rights enforceable in India outside the Part B States should be stamped properly under the Indian Stamp Act, and he could have done this even when it was executed in Mysore. So, equity is in favour of making the executant liable under Sections 40 and 48, even though Sections 17 and 62 will not apply in terms to such an instrument. That will make it unnecessary for us to consider the vexed question as to who brought this document outside Mysore State, to Salem, and who received it in India. Mr. Bhashyam for Rangarajau Naidu, urges that it was Dr. Kamesam who would be liable, as he caused it to be brought to Salem by summoning for it, and that Rangaraju's merely producing that document in the Salem Court in obedience to the summons would not amount to his receiving the document in India, under Section 18 or bringing it to India outside the Part B States. He relied on the judgment of Govinda Menon, J., in Rangaraju v. Kamesam : AIR1953Mad698 , Mr. Krishnaswami Ayyangar for the legal representatives of Dr. Kamesam, urged that Rangaraju Naidu was the person who actually brought it into India outside the Mysore State to Salem and that he had received it in Salem within the meaning of Section 18 even before the summons was issued, though there was no clear proof of it. Nor is there any need to decide the other vexed question, viz., as to who required this document as evidence in the suit, whether Rangaraju Naidu, to prove his contentions of undue influence and fraud and inaccuracy of the copy, or Dr. Kamesam, who summoned for it and wanted to rely on it for disproving the allegations of the inaccuracy of the copy and undue influence and fraud. The learned Counsel for both sides now say that they do not want that document to be let in as evidence on their side obviously because of the heavy stamp duty and penalty levied and payable. But it is obvious that a man cannot escape from the consequences of his action by recalling that action later in a case like this. If we were to decide this question, we should hold that it is Dr. Kamesam who summoned for the document and wanted to rely on it, and wanted to let it in as evidence on his side, though we have no doubt that Rangaraju Naidu would have taken full advantage of the document being let in as evidence to support his own contentions.

22. As we have applied the same rule, viz., that the executant of the document is the person to be proceeded against by the Collector under Sections 40 and 48 for levying stamp duty and penalty even regarding a document like this, executed in Mysore a Part B State when it relates to properties in India outside Part B States and as we have held further that Rangaraju Naidu was a co-executant of this instrument along with Dr. Kamesam (besides being liable to pay the stamp duty under the agreement and under Section 29 analogously) and as we have further held that the Collector can levy the stamp duty and penalty under Sections 40 and 48 from any of the executants, when more than one executant is liable jointly and severally, it follows that the Collector's order levying the stamp duty and penalty from Rangaraju Naidu, one of the executants, is correct, and that Ramaswami, J.'s, order in the writ petition quashing the order of the Collector, cannot be sustained.

23. In that view, we allow both the writ appeals and set aside the order of Ramaswami, J., in the writ petition and dismiss the writ petition. In the peculiar circumstances of the case, and considering that the law was not settled before, we direct all the parties to the writ petition and the writ appeals to bear their own costs.


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