1956 Supreme(AP) 192

HIGH COURT OF ANDHRA PRADESH
SUBBA RAO,BHIMASANKARAM,KRISHNA RAO, JJ.
Board of Revenue, Chepauk, Madras, Now Andhra at Madras Referring Officer
Versus
Poosarla China Appalanarasimhulu
Case Referred No.19 of 1955
Decided On : 17-09-1956

The parties to a partition deed are liable to pay stamp duty in proportion to their respective shares in the whole property partitioned unless there is an agreement to the contrary, and they are the persons from whom the duty and penalty are due.

Headnote:

Indian Stamp Act, 1899 - Section 2(15) - Instrument of partition - Partition deed - Liability to pay stamp duty - Section 29 - Apportionment of liability - Section 40 - Collector's power to recover duty and penalty - Section 44 - Right of recovery from other persons - Section 48 - Recovery of duty, penalty, and other sums.

Fact of the Case:

The Commercial Tax Officer impounded a deed purporting to be a list of properties partitioned between three brothers. The Revenue Divisional Officer levied stamp duty and penalty at five times the stamp duty. The successor of the Revenue Divisional Officer, finding the calculation and levy of the stamp duty to be erroneous, made a reference to the District Collector soliciting instructions. The District Collector issued orders authorising the Revenue Divisional Officer to levy the correct stamp duty and penalty on the instrument. The Revenue Divisional Officer levied a stamp duty of Rs. 1252-8-0 and a penalty of Rs. 6262-8-0 and recovered the full amount from the three parties to the document in proportion to their respective shares in the whole property partitioned.

Finding of the Court:

1. The document in question is an instrument of partition within the meaning of S. 2(15) of the Indian Stamp Act. 2. The parties to a partition deed are liable to pay stamp duty in proportion to their respective shares in the whole property partitioned unless there is an agreement to the contrary, and they are the persons from whom the duty and penalty are due. 3. The Collector can proceed under S 48 only against each of the parties in respect of the proportionate amount of the duty due from him. 4. The Revenue Divisional Officer was justified in subsequently reviewing the order dated 6-1-1947.

Issues: 1. Whether the document in question is not an instrument of partition within the meaning of S. 2 (15) of the Indian Stamp Act and is not, therefore, liable to stamp duty and penalty? 2. Whether P. Sriramamurthi, one of the co-sharers, being the person that produced the documents before the Commercial Tax Officer he alone was the person who could be proceeded against for the realisation of the duty and penalty and that it was not right to order collection from all the three brothers in equal shares? and 3. Whether the Revenue Divisional Officer, having called upon Sriramamurthi to pay the stamp duty and penalty by order, dated 6-1-1947, was not justified in subsequently reviewing the same by means of his order dated 13-7-1948 in which the applicant and the other two brothers were asked to pay the stamp duty and penalty in equal shares?

Ratio Decidendi: 1. The definition of "Instrument of Partition" under Section 2(15) of the Indian Stamp Act, 1899, includes any instrument whereby co-owners of any property divide or agree to divide such property in severalty. The document in question, which is a list of properties partitioned among three brothers, falls within this definition and is, therefore, an instrument of partition. 2. Section 29 of the Act provides that in the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne by the parties to an instrument of partition in proportion to their respective shares in the whole property partitioned. This provision creates a statutory liability on the parties to the partition deed, and the Collector can enforce that liability under Section 48 of the Act. 3. Section 40 of the Act empowers the Collector to require the payment of the proper duty and penalty when an impounded instrument is not duly stamped. This power can be exercised against any person who is liable to pay the duty, and not just against the person who produced the document. 4. Section 44 of the Act provides for the recovery of duty and penalty paid by one person from other persons who were bound to bear the expense of providing the proper stamp. This provision does not restrict the Collector's power to recover the duty and penalty from the persons liable under Section 29.

Final Decision: 1. The document in question is an instrument of partition within the meaning of S. 2 (15) of the Indian Stamp Act. 2. The parties to a partition deed are liable to pay stamp duty in proportion to their respective shares in the whole property partitioned unless there is an agreement to the contrary, and they are the persons from whom the duty and penalty are due. 3. The Collector can proceed under S 48 only against each of the parties in respect of the proportionate amount of the duty due from him. 4. The Revenue Divisional Officer was justified in subsequently reviewing the order dated 6-1-1947.