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1999 Supreme(Mad) 484
High Court of Judicature at Madras
K. SAMPATH
Etthyammal & Others
Versus
The Sub Collector, Tindivanam
W.P.No.18977 of 1993 and W.M.P. Nos. 29581 and 29582 of 1993 and 3706 of 1994
Decided On :Decided on: 29-04-1999
For the Petitioners:V. Raghavachai, V. Lalcshminarayanan, Advocates.
For the Respondent:Daveson, Government Advocate.
The stamp duty should be fixed on the basis of the market value as on the date of the document and not on the date of the enquiry.
Headnote:
STAMP ACT - STAMP DUTY - VALUATION - MARKET VALUE - DETERMINATION - DUTY TO BE FIXED ON THE BASIS OF MARKET VALUE AS ON THE DATE OF THE DOCUMENT AND NOT ON THE DATE OF ENQUIRY.
Fact of the Case:
The petitioners filed a suit in a civil court in 1987, and in the course of the proceedings, a document was filed that required stamp duty. The court directed the petitioners to pay stamp duty as per the partition deed on the market value obtaining in 1993, which was more than 5 years later.
Finding of the Court:
The court held that the stamp duty should have been fixed on the basis of the market value as on the date of the document, which was in 1959, and not on the date of the enquiry, which was in 1993. The court also held that the alternative remedy of appealing to the Chief Controlling Revenue Authority under Section 56 of the Stamp Act was not effective, speedy, adequate, or sufficient in the circumstances of the case.
Issues: 1. Whether the stamp duty should be fixed on the basis of the market value as on the date of the document or on the date of the enquiry? 2. Whether the alternative remedy of appealing to the Chief Controlling Revenue Authority under Section 56 of the Stamp Act was effective, speedy, adequate, or sufficient in the circumstances of the case?
Ratio Decidendi: 1. The court held that the stamp duty should be fixed on the basis of the market value as on the date of the document because it is the duty of the respondent to have arrived at the market value for the property for the year 1959 on the basis of the market value obtaining in the years immediately following 1959. He ought not to have burdened the petitioners with the stamp duty on the market value as in 1993. 2. The court held that the alternative remedy of appealing to the Chief Controlling Revenue Authority under Section 56 of the Stamp Act was not effective, speedy, adequate, or sufficient in the circumstances of the case because the matter had been pending for more than 5 years and it would be another eternity before a quietus could be given.
Final Decision: The court quashed the order of the respondent fixing the stamp duty on the market value obtaining in 1993 and directed the respondent to quantify the stamp duty on the basis of the market value to be arrived at for the year 1959.
1. The prayer in the Writ Petition is for the issue of a writ of certiorari to call for the records on the file of the Sub Collector, Tindivanam the respondent herein in his proceedings A. 8/4704/92 dated 17.8.1993 and quash the proceedings thereon as illegal, incompetent, ultravires and without jurisdiction.
2. The affidavit filed in support of the Writ Petition alleges as follows:
The writ petitioners have filed a suit in O.S. No. 1134 of 1987 against one Muthusamy Gounder and two others before the District Munsif, Tindivanam for declaration and injunction. In that suit they filed a partition deed entered into between the husband of the first petitioner and defendants 2 and 3. According to the petitioners, the said document would not attract the provisions of the Stamp Act as no fight under the document was created. The Sub Collector Tindivanam the respondent herein assumed that duty should be levied as per Article 15 of the Indian Stamp Act read with Article 45 and referred the matter to the Collector after impounding it as per the provisions of Sec. 35 of the Stamp Act. He called upon the first petitioner to appear before him on 16.8.1993 at 10 A.M. The first petitioner appeared before him and submitted her explanation to the notice contending that the document did not require any stamp duty and the same could be utilised for collateral purposes. She further represented that the valuation of the property for the purpose of stamp duty should if at all be recovered on the basis of the market value as on the date of the document namely 12.4.1959. The respondent not having considered her objection and passed an order on 17.8.1993 valuing the property at Rs. 1,46,969/- and fixed the stamp duty at Rs. 5,640/- and a penalty of Rs. 5/- under Sec. 40 (i) (b) of the Indian Stamp Act (hereinafter referred to as the Act), the present Writ Petition came to be filed.
3. A counter has been filed on behalf of the respondent contending inter alia as follows:
The very reading of the document would show that rights were created under the document and possession had been handed over only under the document. On the basis of the valuation report furnished by the Tahsildar, Vanur, an enquiry was conducted on 16.8.1993. In that enquiry, petitioner admitted that the stamp duty fixed by the respondent was correct and also agreed to pay the stamp duty. She also gave a statement to that effect on the date of enquiry itself. Therefore, it was not proper to say that her objections were not considered. The respondent did not contravene any of the provisions of the Stamp Act and it was not open to the petitioners to contend that the provisions of Articles 45 or 16 of the Act were not attracted. The document in question is a deed of partition. The values of the separated shares were taken into consideration and stamp duty was levied on the largest share remaining after the property was partitioned. As regards the allegation that the market value as of the year 1959 should have been fixed, the respondent contended that the registers pertaining to the market value for the year 1959 was not available in the Sub-Registrars Office and therefore the property was valued as per the prevailing market rate. The respondent valued the property only on the basis of the report submitted by the Tahsildar, Vanur who in his turn obtained the particulars from the Sub-Registrars Office.
4. Mr. V. Raghavachari, learned counsel for the writ petitioners submitted that under the document no rights in praesenti were created and when the instrument of partition did not create any new right but only stated that the parties agreed to divide the said document could not attract the provisions of Article 45 or 16 of the Indian Stamp Act. Only in the event of any property being divided, the Collector had jurisdiction to require the petitioners to pay the stamp duty. He should also issue notice to all the parties to the suit and not to just one party and decide the matter in the a
