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A.M.P.S. Muthuswamy Vs. Revenue Divisional Officer, Nagapattinam and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 2402 of 1974
Judge
Reported inAIR1979Mad153; (1979)1MLJ207
ActsArbitration Act - Sections 14 and 33; Registration Act - Sections 79; Stamp Act
AppellantA.M.P.S. Muthuswamy
RespondentRevenue Divisional Officer, Nagapattinam and ors.
Excerpt:
family - partition - sections 14 and 33 of arbitration act, section 79 of registration act and stamp act - dispute arose between members of joint hindu family which led to filing suit for partition - petition filed for direction to respondent to levy stamp duty - revenue divisional officer failed to levy stamp duty payable on documents - original award made by arbitrator regarding partition was lost - direction given to respondent to send copy of award from district judge and to treat it as original and determine stamp duty payable on it. - - not only has the revenue divisional officer failed to levy stamp duty payable on the document and collect revenue to government, but he has not even taken care to keep a valuable original document like an arbitration award, in safe custody......unregistered and it was open to the district judge to impound the document and send it for levy of stamp duty and penalty if he considered the document required stamp duty and registration.5. even before this court disposed of the civil revision petition and the civil miscellaneous appeal, the district judge, in accordance with the view taken by him, impounded the original award and sent it to the revenue divisional officer, nagapattinam (first respondent) on 16-8-1960, for levy of stamp duty and penalty. the first respondent returned the document on 26-8-1962 furnishing the valuation of the properties situated within his jurisdiction. the district judge retransmitted the award on 4-9-1962, to the first respondent for levying stamp duty and penalty. then in the year 1966. the first.....
Judgment:

1. This writ petition reveals a shocking state of affairs and depicts in some measure the sorrowful state of things in some offices of the Government. The Indian public are no doubt accustomed to the slow motion of the wheels of Government. But even to members of such a resigned society, the facts of this case will give a jolt.

2. Differences of opinion arose between the members of a Hindu joint family and that led to a disruption in the joint family status. A body of arbitrators was constituted to effect a partition of the family properties and give an award in that behalf. The arbitrators gave an award on 9th June 1959. There was no consensus among the coparceners about the acceptability of the award. That led to some members of the erstwhile joint family filing a suit O. S. No. 23 of 1959 in the District Court of Nagapattinam under S. 14 of the Arbitration Act for a direction being issued to the arbitrators to file the award in court. In response to the notice issued in the suit, the arbitrators produced the original award in court along with certain documents on 20-1-1960.

3. The other branch, which was dissatisfied with the award, filed O. P. No. 73 of 1959 before the District Judge under S. 33 of the Arbitration Act for setting aside the award. In addition to that, the members of the branch also filed a suit O. S. No. 24 of 1959 for partition of the joint family properties by metes and bounds.

4. The party, which filed O. P. No. 73 of 1959 and O. S. No. 24 of 1959 raised an objection that the award cannot be received and looked into because it had not been registered under S. 79 of the Registration Act. The objection was sustained and the District Judge passed an order in favour of the objectors. An against that offer, the party which relied upon the award filed a civil revision petition and civil miscellaneous appeal before this court. This court held on 17-4-1964 that the award cannot be rejected merely because it was unstamped and unregistered and it was open to the District Judge to impound the document and send it for levy of stamp duty and penalty if he considered the document required stamp duty and registration.

5. Even before this court disposed of the civil revision petition and the civil miscellaneous appeal, the District Judge, in accordance with the view taken by him, impounded the original award and sent it to the Revenue Divisional Officer, Nagapattinam (first respondent) on 16-8-1960, for levy of stamp duty and penalty. The first respondent returned the document on 26-8-1962 furnishing the valuation of the properties situated within his jurisdiction. The District Judge retransmitted the award on 4-9-1962, to the first respondent for levying stamp duty and penalty. Then in the year 1966. The first respondent stated that since the properties lying outside his jurisdiction were also dealt with in the award, he should ascertain the value of those properties from the concerned officers and for that purpose he was sending the document to other officers for valuation report. Thereafter, nothing more was heard for a number of years.

6. Sometime in 1974, the district Judge addressed the District Revenue Officer. Thanjavur (2nd respondent) to find out what had happened to the award sent to the first respondent, by letter dated 9th April 1974. The second respondent dated that he had addressed the Chief Controlling Revenue Authority for certain clarifications and the orders of the Board of Revenue are awaited. About three months later, the party relying upon the award presented a petition through his advocate to the second respondent to know about the fate of the award and he was given a reply on 12-7-1974 that the clarification sought for from the Board of Revenue was still awaited. Then of 29-7-1974, the second respondent informed the advocate that the orders of the Board of Revenue have since been received and the first respondent may be approached for further orders. On 1-8-1974, the first respondent issued a memo stating that the second respondent has been addressed for certain clarifications and instructions were awaited. It is in that state of affairs, the petitioner came forward with this writ petition seeking a mandamus or any other writ or direction to direct the respondents to levy stamp duty and penalty on the impounded document and forward the same to court.

7. Mr. R. G. Rajan, learned counsel for the petitioner, states that on account of the non-levy of stamp duty and penalty on the document the suit filed in the year 1959 is still pending disposal in the court of the District Judge and the long delay has caused untoward hardship and suffering to the parties.

8. The counter-affidavit filed on behalf of the respondents contained a disturbing and distressing story. In paragraph 4, it is stated that-

'The files dealing with the collection of stamp duty on the above document from the year 1960 to June 1964 in the office of the Revenue Divisional Officer, Nagapattinam are not available in his office due to efflux of time. In the year 1966, copies of the unstamped award, were forwarded to the Tahsildars of Nagapattinam and Kumbakonam by the Revenue Divisional Officer, Nagapattinam, for obtaining the valuation report in his RC No. 26844/64-A-6 dated 13-2-1966. The original award had been misplaced subsequently in the Divisional Office and it was not traceable. Hence, the Revenue Divisional Officer, Nagapattinam, addressed the District Judge, Nagapattinam, to send a copy of the award for collecting the stamp duty in his RC. 2322/69-A-7 dated 19-12-1969 and 20-5-1970. Thereupon, the District Judge in his letter D. No. 3337 dated 24-6-1970 sent a copy of the unstamped award to the Revenue Divisional Officer, Nagapattinam,. Meanwhile, the required valuation particulars were obtained by the Revenue Divisional Officer from the Tahsildars and from the Executive Engineer, Vennar Division Thanjavur for collecting the stamp duty. The Local Government Pleader, Nagapattinam and the Government Pleader, and the Government Pleader, Nagapattinam were also addressed by the Revenue Divisional Officer for giving opinion for collecting the stamp duty on the copy of the document. They opined that there is no scope for inclusion of a copy of document as an instrument for the purpose of the Stamp Act. The second respondent was also addressed by the Revenue Divisional Officer, Nagapattinam, to offer his remarks on the admissibility of a copy of the document. He reported that in the absence of the original document, no further action could be taken for levying stamp duty. As there were doubts as to the collection of stamp duty, the Board of Revenue (Chief Controlling Revenue Authority), was addressed for decision in the District Revenue Officer's RC 4513/73G5 D/-23-2-1974, under Section 56(2) of the Stamp Act. The Board of Revenue, in its Ref. LL.1176/74-1, dated 16--7-1974, issued instructions that the copy of the unstamped document in question could not be impounded and stamped as if it were the 'original' which was lost in the Sub Collector's Officer. Nagapattinam. Hence, a copy of the unstamped document was not stamped though the particulars of valuation have been gathered.'

9. It is further stated in the counter-affidavit that the Board of Revenue directed the District Revenue Officer to make a diligent search for the missing document and, if it was not traceable, to hold an enquiry and take disciplinary action against the delinquent, employee for the loss of the instrument impounded. A clerk by name R. Chinnappan was charged for the loss of the document and was placed under suspension. But further action could not be taken against him because he died on 14-7-1974. The counter-affidavit ends up with the prayer that since the original award is not available for being levied stamp duty, the writ petition may be dismissed with costs and justice rendered.

10. From what has been stated above, it can be seen that there has not only been gross delay in the disposal of the matter, but there has also been callous indifference. Not only has the Revenue Divisional Officer failed to levy stamp duty payable on the document and collect revenue to Government, but he has not even taken care to keep a valuable original document like an arbitration award, in safe custody. As far as the parties are concerned, the document is an important one and a copy can never supplement the original especially when it is represented in this case that some of the arbitrators have since dies and, as such, the probative value of the document will also be challenged. Be that as it may, the original of the document is said to have been lost in the year 1966. But there has been no action except some correspondence for nearly eight years thereafter. Even at the end of such a long period, the view taken by the respondents cannot be accepted as a proper and correct one. In the Tamil Nadu Stamp Manual, there is reference to Board's proceedings No. 1473 dated 7-6-1882 at the end of Section 38. That note reads as follows-

'In the case of an instrument impounded by a Judge for want of sufficient stamp and sent to the Collector under Section 38; sub-section (2), and lost in transit, held that the Collector may equitably deal with the copy as if it were the original, making a note on the document of the circumstances.'

11. It is beyond my comprehension how this proceeding came to escape the notice of the respondents. Having found that the original award had been lost and was not traceable, the only other alternative left open was for the respondents to have acted in accordance with the above mentioned proceeding and dealt with the copy as if it was the original and levied stamp duty. Instead of doing any such thing, the copy has been returned to the District Judge saying that stamp duty cannot be levied on it and the counter-affidavit ends with the mechanical prayer that the writ petition may be dismissed with costs. There is not the slightest trace of regret or apology for the hardship that has been caused to the petitioner by the slackness and negligence in the office of the first respondent resulting in the missing of the original document. It is needless to say that such indifferent functioning of Government Offices does not fit in with the democratic pattern of Government we have constituted for ourselves.

12. The only way to end the impasse is to direct the first respondent to send for the copy of the award once again from the District Judge and to treat it as the original and determine the stamp duty payable on it. However, before determining the amount of stamp duty, the first respondent should give notice to both sides and hear their representations about the valuation determining for the properties dealt with under the award and then pass orders determining the stamp duty.

The writ petition will stand allowed and a mandamus in the nature indicated above will be issued to the respondents. The petitioner will be entitled to his costs as against respondents 1 to 3. Counsel's fee is fixed at Rs. 150.

13. Petition allowed.


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