V. Balasubrahmanyan, J.
1. This is a reference made by the Board of Revenue, Madras under Section 57 of the Indian Stamp Act, pursuant to a mandamus issued by this Court in Writ Petition No. 2484 of 1971, reported in Manjunatha v. Board of Revenue : AIR1973Mad343 . The reference concerns an instrument bearing the date 29th April, 1970, under which the respondent, Manjunatha Rai purported to release in favour of his wife a piece of land which stood in his name.
2. The statement of the case shows that before stamping the instrument the respondent took it to the Collector of Madras and sought his opinion as to the proper stamp duty payable thereon. The Collector went into the matter and, by his order, dated 21st April, 1970, considered the document to be a release deed and determined the stamp duty payable at Rs. 22.50. On getting the Collector's opinion the respondent stamped the instrument as a release deed with Rs. 22.50, and presented the document for registration before the sub-Registrar of Assurances, Madras-1. The Sub-Registrar however, impounded the document as insufficiently stamped in the view that it was a conveyance, and not a release as determined by the Collector. On further reference, the District Registrar agreed with the view of the Sub-Registrar, and held that the document was a conveyance of land effected by the respondent to his wife, chargeable to stamp duty as such on the basis of the market value of the property. The District Registrar estimated the market value at Rs. 91,870 and levied a stamp duty of Rs. 5,617.50. He also imposed a nominal penalty of Rs. 5. The respondent appealed to the Board of Revenue, contending that the registering authorities had no jurisdiction to re-adjudicate the stamp duty when the Collector had already gone into the matter and had expressed his determination as to the proper stamp duty payable. The respondent urged that, right or wrong, the Collector's determination under Section 31 was final and conclusive and no other authority functioning under the Act had power to go behind that determination and hold that the document stamped, in accordance with the Collector's opinion was not fully stamped. The respondent further urged that, on any consideration, the document must be held to be a release deed. The Board of Revenue rejected all these contentions.
3. The first question before us in this reference is whether the Collector's determination under Section 31 of the Stamp Act is final and conclusive, or whether it is open to the registering authorities to independently enter into an adjudication of the stamp duty on the instrument, notwithstanding the earlier opinion of the Collector? The question calls for a consideration of the relevant provisions of Section 31 and Section 32 of the Stamp Act. Section 31(1) provides that when an instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it pays the requisite fee and applies to have the opinion of the Collector, as to the duty, if any with which it is chargeable, the Collector shall determine the duty, if any, with which in his judgment, the instrument is chargeable. So far as is relevant to the present discussion, it will be found that Section 31(1) deals with two kinds of instruments, those that are previously stamped, on the one hand, and those that are not previously stamped, on the other. The opinion of the Collector on stamp duty on the instrument may be solicited in respect of both kinds of instruments and in either case the Collector is bound to render his determination. Section 32(1) says that when, on the basis of the opinion expressed by him under Section 31, the Collector finds that the instrument is already fully stamped or he finds that the duty determined by him under Section 31 has been paid, he shall certify, by endorsement on the instrument, that the full duty (stating the amount) has been paid on the instrument. Section 32(3) provides, inter alia that any instrument upon which an endorsement has been made by the Collector under Section 32(1) 'shall be deemed to be duly stamped', and shall be receivable in evidence, and may be acted upon and registered as if it had always been duly stamped. Apparently, it was this deeming provision in Section 32(3) that the respondent relied upon in support of his contention that the registering authorities had no jurisdiction in this case to re-adjudicate the question of stamp duty when the Collector had already determined it under Section 31. It has, therefore, to be seen whether Section 32(3) appliea to this case and has the effect contended for by the respondent. It may be mentioned that no other statutory provision was referred to during arguments.
4. In the present case, the respondent's document was considered and adjudicated upon by the Collector as respects stamp duty only under Section 31. But, at the time it was brought before the Collector for his opinion, the instrument had not been previously stamped. It remained unstamped when he passed the order, dated 21st April, 1970 to the effect that the document was a release and must bear a duty of Rs. 22.50. Pursuant to the Collector's opinion, the respondent proceeded to stamp the instrument with a duty of Rs. 22.50. But, after stamping the instrument, the respondent did not submit it to the Collector for an endorsement of the certificate as to the payment of the duty in accordance with the opinion earlier expressed. Instead, the respondent straightway presented the stamped instrument for registration. So at the time of presentation to the Sub-Registrar, the instrument did not bear on it any certificate from the Collector to the effect that the full duty had been paid. It is in this factual situation that the applicability of Section 32(3) will have to be examined. It seems to us that for this provision to operate in favour of any given instrument the Collector's adjudication under Section 31 must be followed up by a relative certificate by the Collector endorsed on the instrument itself, to the effect that the full duty as adjudicated by him has in fact been paid on the instrument. What makes the adjudication by the Collector as to stamp duty on an instrument final and conclusive is not the opinion which he expresses under Section 31, but his adjudication under that section followed by a certificate entered by him under Section 32(1) on the instrument itself to the effect that the full duty has been paid on it. A mere opinion of the Collector under Section 31 on an unstamped instrument not followed by certification under Section 32, which was what happened in the present case, is not covered by the rule of finality enacted in Section 32(3) of the Act.
5. Reference was made at the Bar to the decision of a Special Bench of this Court reported as Reference under Section 57 of the Stamp Act I.L.R.(1902) Mad. 752 . That was a case where the Collector in exercise of his power under Section 31 had determined the duty with which two instruments were chargeable, following his determination, the Collector had also endorsed on the instruments certificates as to payment of duty, which he was empowered to make under Section 32. In those circumstances, the Court held that the Collector's adjudication as to stamp duty was final and conclusive and the Board of Revenue had no jurisdiction even to refer the question for the opinion of the High Court under Section 57 of the Act. The learned Judges held that the High Court had no power to adjudicate on the matter, because any opinion rendered by it under Section 57 would necessarily have to be followed up under Section 59(2) and the revenue authorities had to pass consequential orders in conformity with the High Court's judgment. But this they would not do in view of Section 32 which made the determination by the Collector, duly endorsed on the instrument, final in respect of that instrument.
6. A close examination of the judgment in the above case would show that what makes the Collector's determination final is the endorsement made by him on the Instrument under Section 32 and not the adjudication as to stamp considered in itself. Following the principle of this decision, another case was decided by the same Full Bench, reported in the same volume Reference under Section 57 of the Stamp Act I.L.R.(1902) Mad. 752 in which the Collector's certificate under Section 40 (1)(a) of the Stamp Act was held to be final and conclusive, not capable of revision by the Board of Revenue nor capable of being considered on reference by the High Court. The judgment of the majority of the Full Bench in this later case shows that the Board of Revenue could exercise its powers as the chief controlling revenue authority at any stage prior to the Collector's making a certificate under Section 40(1)(5), but not after the certificate has once been endorsed on the instrument; vide judgments of Bashyam Iyengar and Moore, JJ. at pages 760 to 766.
7. Under the scheme of the Stamp Act, the Collector's powers under Section 31 and Section 32 would seem to be distinct and separate both in point of time and in point of procedure. The one deals with the expression of opinion as to stamp duty liability, whereas the other deals with - certification of payment of full duty. The power of the Collector under Section 31 begins and ends with opinion - giving. It might even be said that with reference to his duties under Section 31, he becomes functus officio the moment he delivers his opinion. Then follows Section 32, but the Collector does not properly enter upon his task under this section unless the person executing the document produces it before him for certification.
8. The distinction between Sections 31 and 32 is well brought out in a case before the Supreme Court reported in Government of Uttar Pradesh v. Mohammad Amir Ahmed Khan : 1SCR97 . There a stamped document, recording the terms of an oral wakf, was submitted to the Collector, and his opinion was solicited as to the proper stamp duty payable thereon. After some delay, the Collector expressed his opinion that it should bear a stamp of Rs. 85,598 and proceeded to demand the payment of the duty. On failure by the executant of the instrument to pay the duty within the time limited the Collector impounded the document, purporting to do so in exercise of his powers under Section 33 of the Act. On a writ petition filed by the executant of the instrument, a Full Bench of the Allahabad High Court held in Raja Mohammed v. Deputy Commissioner, Sitapur : AIR1956All453 , that the Collector, acting under Section 31, had no jurisdiction to impound the instrument under Section 33. On appeal by the State Government, the Supreme Court affirmed the decision of the Allahabad High Court. The following observations of Kapur, J., speaking for the Supreme Court, are pertinent for the purposes of the present case:
The scheme of the Act shows that where a person is simply seeking the opinion of the Collector as to the proper duty in regard to an instrument, he approaches him under Section 31. If it is properly stamped and the person - executing the document wants to proceed with effectuating the document or using it for the purposes of evidence, he is to make up the duty and under Section 32, the Collector will then make an endorsement and the instrument will be treated as if it was duly stamped from the very beginning. But if he does not want to proceed any further than seeking the determination of the duty payable, then no consequence will follow and an executed document is in the same position as an instrument which is unexecuted and unstamped, and after the determination of the duty the Collector becomes functus officio and the provisions of Section 33 will have no application. The provisions of that section are a subsequent stage when something more than mere asking of the opinion of the Collector is to be done.
In an earlier passage in the same judgment, Kapur, J., observed:
They (the words of Section (33) do not cover the acts which fall within the scope of Section 31, because that section is complete by itself, and it ends by saying that the Collector shall determine the duty with which, in his judgment, the instrument is chargeable at all...when he is asked to give his opinion, he has to determine the duty, with which, in his judgment, the instrument is chargeable, and there his duties and powers in regard to that matter end. The follows Section 32....
An early decision of a learned Judge of this Court, Horwill, J., in Murugayya Pillai v. Rajagopal Pillai : AIR1942Mad381 , rules that a mere letter from the Collector expressing his opinion that no stamp duty was necessary is not the certificate referred to in Section 32(2) of the Stamp Act and hence not binding on the civil Court.
9. On the basis of the above rulings, the legal position may be summed up thus:
The Collector's determination under Section 31 of the Stamp Act as to the Stamp duty payable on an instrument would be final and conclusive only in cases where the Collector follows up his adjudication under Section 31 by a relative endorsement on the instrument itself under Section 32 to the effect that proper duty has been fully paid, or, in cases where he has expressed the opinion that no duty is payable, makes an endorsement to that effect on the instrument itself. Where, however, the Collector has not certified by endorsement on the instrument either in terms of Section 32(1) or in terms of Section 32(2) his adjudication as to stamp duty on the instrument brought before him under Section 31 cannot be a bar to other Authorities competent under the Stamp Act to examine or re-examine the question of proper stamp duty paid on it.
10. As already stated, the respondent in the present case did not obtain a certificate of endorsement from the Collector in terms of Section 32(1) within one month of the date of execution of the document or at any time after he obtained the Collector's adjudication under Section 31. This being so, when the document was later presented for purpose of registration, the registering authorities had not only the requisite jurisdiction, but a positive duty, to adjudicate on the proper stamp duty payable on the respondent's instrument. Our answer to the first question in the reference is, therefore, in the affirmative and against the respondent.
11. This leads us to the other question, whether the instrument executed by the respondent on 29th April, 1970 in favour of his wife is a deed of release or a conveyance. For considering this question, the language of the document has to be examined as to its real tenor. The deed is described as a Deed of Release (Relin-quishment). It is executed by the respondent Manjunatha Rai in favour of his wife Lalitha Rai. The instrument recites that on 14th March, 1947 the respondent had purchased three items of vacant land, covered by door No. 110, Mount Road, Vellala Teynampet, Madras for Rs. 1,22,500. The instrument further recites that since the respondent was unable to pay the entire purchase consideration he borrowed a sum of Rs. 90,000 from the Vijaya Bank. The borrowing was a joint borrowing by himself and his wife. The mulki properties of the wife consisting of agricultural lands were offered as security to the Vijaya Bank. Besides, the Bank was given other personal securities both of the respondent and his wife. The instrument proceeds to recite that subsequent to the purchase of the property in No. 110, Mount Road, the respondent's wife borrowed a sum of Rs. 3o,ooo from her sister on 3oth July, 1949 and utilized the same for discharging a portion of the debt due by both of them to Vijaya Bank. The balance of Rs. 60,000 owed to the Bank jointly by (he respondent and his wife was subsequently discharged out of the proceeds, again, of a joint borrowing by the respondent and his wife from the Indian Bank. Apart from the property bearing door No. 110, Mount Road, purchased in the manner aforesaid, certain adjacent lands were acquired by the respondent and his wife by way of assignment from the Government of Madras in the year 1954. The instrument of release clearly recites that even at the time of the original purchase of the property in 1947, it was agreed between the husband and wife that out of the total area of 27 grounds, a block of the extent of 10 grounds should be taken by the wife for her own exclusive benefit. It would further appear from the recitals made in the instrument that this agreement between them was also actually implemented, when the wife took possession of a portion of the land, had it subdivided as No. 110/1, Mount Road and put up a building thereon in 1954-55 at her own cost. The wife had ever since been in possession and enjoyment of door No. 110/1 paying assessment and taxes herself and leasing the property and enjoying the rents and profits therefrom. The occasion for the execution of the release deed by the respondent in favour of his wife was stated to be that the latter wished to regularize her title to her portion of the property which she has been enjoying for several years in her own right. The respondent was equally desirous of acceding to his wife's request in view of the fact that the nominal title under the sale deed stood solely in his name. Upon these recitals the deed of release declared that the releasor had no claim or interest in the site specified in the schedule attached to the deed. The schedule carried a description, in detail of the sub-division of the property bearing door No. 110/1, Mount Road, Madras.
12. A 'release', as defined in Article 55 of Schedule I to the Stamp Act, is 'any instrument - whereby a person renounces a claim upon another person or against any specified property.' A plain reading of the document in question in this case does not admit of any doubt as to the nature of the transaction. We are satisfied that it is a release, pure and simple. This conclusion must fairly stem from the recitals contained in the deed. It is true that the original purchase of the property of the extent of 27 grounds under the deed, dated 14th March, 1947 was not in the joint names of the parties; nor stated to by for the joint benefit of both the husband and the wife. But we cannot brush aside the clear recital in the release deed that even at the time of the original purchase it was agreed between the husband and wife that 10 out of the 27 grounds were for the la tier's benefit. That this could have been the intention is shown by the fact that a better part of the purchase consideration of the property was borrowed on the joint credit of both the respondent and his wife, first from the Vijaya Bank and later from the Indian Bank. Besides, the wife and. repaid Rs. 30,000 from resources found, by her alone. In these circumstances, there could be no doubt that even from the start the respondent and his wife were co-owners of the property, and it was only as such co-owner that the wife subsequently proceeded to raise superstructures on a portion of the property at her own cost; thereafter enjoying the income from the property and paying the taxes herself.
13. The District Registrar as well as the Board of Revenue regarded the document as a conveyance from the respondent to his wife, and spelt out the - consideration therefor to be Rs. 30,000. The inference as to consideration was apparently drawn from the recital that the respondent's wife had partially discharged the Vijaya Bank loan to the extent of Rs. 30,000. The instrument of release also carried a statement, written underneath the schedule to the effect that the respondent had obtained consideration for the release in the sum of Rs. 30,OOO from his wife in 1947. In our view, however, this statement in the release deed does not have the effect of rendering the transaction as a conveyance. For a release, in law, may be effected either for consideration or for no consideration. In either case, if the transaction operates as a relinquishment or a renunciation of a claim by one person against another or against a specified property, it will be a release. The stamp duty on a release, under the Stamp Act, does not depend upon the question of consideration or absence of consideration for the release. On the contrary it is made to depend on the value of the claim which is renounced by the releasor.
14. For holding that the document in question is a conveyance the Board of Revenue did not rely so much on the recitals which that document contained. The Board embarked, instead, on an examination of the original sale deed, dated 14th March, 1947 under which the respondent purchased the whole extent of 27 grounds in Mount Road. According to the Board, this document, dated 14th March, 1947 did not say that the consideration for the purchase of the property was, in part, provided by the wife. The Board expected that such a recital ought to have been put in the purchase document, if the intention had been that the purchase was to be for the joint benefit of both husband and wife. From this the Board purported to draw the inference that the respondent alone was the sole purchaser of the entire extent of the property of 27 grounds. From this it was but a short hop for the Board's conclusion that what the respondent did under the document, dated 29th April, 1970 was only to part with, or transfer, a portion of his own property in favour of his wife. We do not subscribe to the method of adjudication of stamp duty which the Board had followed in this case. It is true that what name the parties choose to give to an instrument cannot be decisive, or even indicative of the true nature of the instrument for purposes of stamp duty. But this rule does not mean that the revenue is empowered to go behind the recitals and terms of the document before it and hold that the object of the transaction was something different from what the document discloses and therefore the document should be deemed to be that which it is not. We do not think that the revenue authorities can ignore the terms of the document which is before them for adjudication and base their decision on the terms of some other collateral instrument. At all events, even according to the Board, the purchase document, dated 14th March, 1947 was silent as to how and where the purchaser farmed the consideration which he passed to the vendor. In this situation, the release deed dated 29th April, 1970 was the only instrument to which the Board should have riveted its attention. It was not open to the Board to question the recitals in the release deed in the absence of any materials to the contrary. The same remark must apply to the Board's observation that the assignment by the Government of the adjacent property in favour of the respondent did not show that it was obtained for the benefit of the respondent and his wife jointly. We do not also subscribe to the view that the respondent's wife was merely in the position of a lender of moneys with reference to a portion of the consideration that went in for purchase of the property. We hold that the respondent's wife had acquired a joint interest along with him in the property, and the appropriate method by which the respondent could renounce his claim over the interest of his wife was by execution in her favour of a release, as had been done under the document, dated 29th April, 1970.
15. In view of these consideration, we hold that the instrument was rightly charged to duty as a release under Article 55(b) of Schedule I to the Stamp Act. We answer the reference accordingly. There will be no order as to costs.