The party seeking to rely on an unregistered document should be made liable for the stamp duty and penalty, especially when the authenticity of the document is disputed by other parties involved.

ORDER :

K. Sreedharan, J.

Petitioners 1 to 3 and 4th respondent are brothers. 4th respondent instituted O. S. No. 10/83 on the file of the Additional Munsiffs Court, Palghat against the first petitioner. The dispute in that suit centred around a tamarind tree. 4th respondent contended before the court that the tree stands in the portion allotted to him in the family partition. To support that plea, he produced an unregistered partition deed written on plain paper. An application for receiving that document in evidence was also filed by him. First petitioner who was alone made party in that suit contended that the document is a concocted and fabricated one and that he did not subscribe his signature to it. The court impounded the document and forwarded it to the third respondent for collection of stamp duty and penalty. When the suit came up for trial, 4th respondent reported "not pressed". Consequently the suit was dismissed. So the court had no opportunity to examine the contention of the first petitioner regarding the genuineness of the document.

2. Third respondent issued notice to petitioners requiring them to show cause why stamp duty and penalty totalling to Rs. 1,100/- be not levied from them. Petitioners sent a detailed reply contending that the document was sought to be relied on by the 4th respondent only and that he alone should be saddled with the liability if any under the Stamp Act. They also contended that they were not signatories to the document which was produced by the 4th respondent before the court as a partition deed. Third respondent by Ext. P-3 order dated 9-3-86 directed petitioners and the 4th respondent, alleged executants of the document of partition, to pay stamp duty of Rs. 100/- and penalty of Rs. 1,000/- in equal shares. Petitioners challenged that order before the Board of Revenue in revision. By Ext. P-7 order dated 29-3-88 the Board of Revenue dismissed the revision petition holding that petitioners are liable to pay the stamp duty and penalty as per Section 30(f) of the Kerala Stamp Act, 1959. This order is under challenge.

3. Though notice on this petition was served on respondents, none cared to file any counter affidavit.

4. The short question that arises for consideration in this petition is whether petitioners are liable to pay the stamp duty and penalty along with the 4th respondent or whether the 4th respondent alone is liable to pay the stamp duty on the documents stated to be the partition deed executed by them. O.S. No. 10/83 on the file of the Additional Munsiff's Court, Palghat was filed by the 4th respondent against the first petitioner. In support of his contentions in the suit he wanted to rely on a document purporting to be a partition deed. That document was written on plain paper and was not registered. First petitioner, the defendant in the suit contended that the document is a concocted and fabricated one and that he had not subscribed his signature to it. The court could not examine the correctness or otherwise of the contention raised by the first petitioner because 4th respondent got the suit dismissed by stating not pressed. By that time the court impounded the document and forwarded it to the third respondent for collection of stamp duty and penalty. Section 39(I)(b) of the Kerala Stamp Act, 1959 provides that if the Collector is of opinion that an instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof whether such amount exceeds or falls short of five rupees. As per Section 43 of the Act, when any duty or penalty has been paid under Section 39 by any person in respect of an instrument, and by agreement or under the provisions of Section 30 or any other enactment in force at the time such instrument was executed, some o