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2025 Supreme(Mad) 4671
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N.Anand Venkatesh, J.
K.Mani, S/o. Kumarasamy and ors. - Petitioners
Versus
The District Registrar and ors. - Respondents
Writ Petition No.33624 of 2022 & W.M.P.No.33080 of 2022
Decided On : 06-02-2025
Advocate Appeared:
For the Petitioner: Mr.D.Vairamoorthy
For the Respondent: Mr.B.Vijay, Additional Government Pleader
Partition deeds are not treated as conveyances under the Indian Stamp Act, hence related deficit stamp duty cannot be enforced after the limitation period has expired.
Headnote:(A) Indian Stamp Act - Section 47A(1) - Writ petition for mandamus to remove entry in encumbrance certificate related to proceedings for deficit stamp duty - Partition deed dated 22.12.2006 not considered a conveyance, hence no applicability of Section 47A - Limitation period for recovery of deficit stamp duty under Section 33A not adhered to, preventing recovery - Entry in encumbrance certificate deemed invalid. (Paras 6 and 7)
(B) Legal Standing of Partition Deed - A partition does not amount to a conveyance and thus cannot attract provisions pertaining to undervaluation. (Para 6)
Facts of the case:
Petitioners, co-owners of property, challenged a notice regarding deficit stamp duty on a partition deed and sought removal of a concerning entry in the encumbrance certificate. The notice had previously been set aside by the court in 2009.
Findings of Court:
The court held that proceedings under Section 47A were improperly initiated and that the applicable method for recovery of deficit stamp duty had not been followed in accordance with legal limitations.
Issues: Whether the entry in the encumbrance certificate regarding ongoing proceedings under Section 47A was valid in light of the partition deed and whether the respondents could initiate recovery of deficit stamp duty after the statutory limitation period had lapsed.
Ratio Decidendi: The court ruled that no proceedings under Section 47A could be initiated as the partition deed did not constitute a conveyance, and any recovery of deficit stamp duty was barred by the limitation period prescribed in Section 33A, necessitating cancellation of the encumbrance entry.
Result: Writ petition disposed of; entry in the encumbrance certificate ordered to be canceled.
| Table of Content |
|---|
| 1. details of partition and stamp duty issues. (Para 1 , 3 , 4 , 5) |
| 2. arguments presented by both parties. (Para 2) |
| 3. court's analysis on applicable law. (Para 6) |
| 4. order directing cancellation of entry. (Para 7) |
ORDER :
N. Anand Venkatesh, J.
This writ petition has been filed seeking issuance of a writ of mandamus directing the respondents to remove the entry made in the encumbrance certificate pertaining to the proceedings initiated under Section 47A(1) of the Indian STAMP ACT [hereinafter referred to as 'the Act'] within the time frame fixed by this Court.
2. Heard Mr.D.Vairamoorthy, learned counsel for petitioners and Mr.B.Vijay, learned Additional Government Pleader appearing for respondents.
3. It is seen from records that seven persons as co-owners had entered into a partition through a partition deed dated 22.12.2006. This document was registered as document No.3099 of 2006. The petitioners were allotted 'A' schedule property described in the partition deed and according to the petitioners, they paid the stamp duty under Article 45(b) of the Act.
4. The further case of the petitioners is that the second respondent issued notice dated 09.02.2007 claiming deficit stamp duty by treating the partition deed dated 22.12.2006 as conveyance. The same was put to challenge before this Court in W.P.No.29416 of 2007 and this Court, by order dated 21.12.2009, was pleased to set aside the notice.
5. In the year 2016, the petitioners once again received a notice dated 28.09.2016 from the second respondent directing them to pay the deficit stamp duty of Rs.13,18,085/-. That apart, an entry was also made in the encumbrance certificate to the effect that proceedings under Section 47A(1) of the Act is pending and as per the audit report, the deficit stamp duty was sought to be recovered. The present writ petition has been filed for a direction to the respondents to remove this entry made in the encumbrance certificate.
6. In the considered view of this Court, there is no question of initiating proceedings under Section 47-A of the Act in a case where the parties have entered into a partition and there is no question of undervaluation since it is not a conveyance. Therefore, the only other alternative left is to initiate proceedings under Section 33-A of the Act through which the deficit stamp duty can be recovered. However, this provision prescribes three years period of limitation and admittedly, no such proceedings were initiated. Thus, recovery of deficit stamp duty from the petitioners cannot be made and hence, the entry that has been made in the encumbrance certificate has to be necessarily cancelled.
7. In the light of the above discussion, there shall be a direction to the second respondent to cancel the entry made in the encumbrance certificate as if proceedings under Section 47-A of the Act is pending and this process shall be completed within a period of four (4) weeks from the date of receipt of a copy of this order. While cancelling the entry, this order can be given as the reference.
This writ petition is disposed of with the above direction. No costs. Consequently, connected miscellaneous petition is closed.
