The registering authority retains the power to collect stamp duty post-registration, but must follow due process as outlined in Section 33-A of the Indian Stamp Act.

ORDER :

Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned proceedings of the respondent in Na.Ka.15/2021, dated 23.07.2021 and quash the same and consequently, to direct the respondent to delete the entry made by him to encumbrance relating to the properties covered to the schedule to partition deed dated 08.06.2020 registered as Document No. 3300/2020 on the file.

1. Challenging the order of the respondent dated 23.07.2021, this Writ Petition is filed with a consequential direction to the respondent to delete the entry made by him with regard to encumbrance relating to the properties covered to the schedule to partition deed dated 08.06.2020 registered as Document No. 3300/2020.

2. It is the case of the petitioner that his grandfather Lakshmanan Chettiar had four sons, namely, Pandian, Vairavan, Saravanan and Nachiappan. They were living together as a joint family and doing joint family business, out of which, they had purchased several properties. After their death, the properties devolved upon all the legal heirs and they had partitioned the properties, for which, a partition deed has also been registered on 08.06.2020 and the document has also been released. The petitioner is the son of Pandian. When the matter stood thus, the petitioner received a letter from the respondent, dated 23.07.2021, claiming deficit stamp duty, which is impugned herein.

3. The learned counsel appearing for the petitioner would submit that the impugned order is liable to be quashed on the following three grounds: (i) after the document had been registered and released, the District Registrar has become functus officio; (ii) the partition deed had been performed between the family members i.e. wife, children and grandchildren of Lakshmanan Chettiar and (iii) the impugned order cannot be sustained in the eye of law, as there is no proceedings initiated under Section 33-A of Indian Stamp Act, 1899 (hereinafter referred to as ‘the Act’).

4. The learned Special Government Pleader appearing for the respondent, by relying upon the counter affidavit filed by the respondent, would submit that the petitioner has not disclosed the great grandchildren of Lakshmanan Chettiar and his grandmother Saroja, who were also parties to the partition deed dated 08.06.2020. During audit objection, it was found that the partition had been performed between non-family members i.e. great grandchildren. Since the great grandchildren does not come within the definition of ‘Family’ as given in Schedule I Article 58 of Indian Stamp Act (hereinafter referred to as ‘Article 58’) and the stamp duty and registration fees had been wrongly calculated, the impugned notice has been issued. Hence, he opposed this Writ Petition.

5. Heard the learned counsel on either side and perused the materials available on record.

6. As far as the first contention of the petitioner that the registering authority become functus officio, after releasing the document, is concerned, that submission has no ground to stand for the simple reason that even after registration, on proper enquiry, stamp duty can be collected as provided under Section 33-A of the Act. Therefore, the first contention cannot be countenanced.

7. As far as the second contention of the learned counsel for the petitioner that the partition had been performed between the members of the joint family, is concerned, it is relevant to note that as per the Explanation in Article 58, the word ‘family’ means father, mother, husband, wife, son, daughter, grand child, brother or sister. It is not included uncle.

8. It is relevant to note that since the Stamp Act is being physical legislation, the definition brought under the Act by way of amendment should be strictly taken into account. However, in the present case, what was presented is partition deed among the children of one of the co-owners and existing co-owners