The liability to pay stamp duty under Section 29(c) of the Indian Stamp Act falls on the grantee, not the vendor, in the absence of an agreement to the contrary.

Judgement

R. N. MISRA, J. :- Petitioner before us was one of the vendors of a sale deed registered on 30th of April, 1970, in favour of one Smt. Sunakari Narayanamma, wife of Sunkari Satyanarayana of Nawarangpur in the District of Koraput. Under the conveyance, a homestead plot within the said town was transferred for a consideration of Rs. 20,000/-. Upon a reference made under Section 47-A of the Indian Stamp Act (as amended in Orissa) (hereinafter referred to as "the Act") by the registering authority, the Additional District Magistrate of Koraput registered a miscellaneous proceeding bearing No. M. C. 75 of 1970. By order dated 23-12-1972, he came to find that the proper valuation of the property conveyed would be Rs. 58,364/- in place of Rs. 20,000/-which was disclosed as consideration for the sale. He assessed the stamp duty payable on the higher amount and required the petitioner to pay the difference of Rs. 2,965.05 vide Annexure-1. A notice was issued under Annexure-2 which the petitioner received on 23-1-1973. In paragraph 3 of the said notice it was specified as follows:-

"If you are dissatisfied with my order you may present an appeal to the District Judge within 30 days from the date of receipt by you of the said order." On 21-2-1973, the petitioner preferred an appeal to the District Judge which was registered as C. M. A. 2/1973. Along with the memorandum of appeal the petitioner presented an application for condonation of delay. The learned District Judge, by his judgment, dated 4th July, 1973 (Annexure-4) came to hold that the excess stamp duty was not payable in law but found that the appeal was barred by limitation and refused to exercise the discretion vested in him in the matter of condonation of limitation. Ultimately the appeal was, therefore, dismissed on the ground that it was barred by time. This writ application is directed against the said appellate order and the petitioner has asked for quashing of the demand as affirmed by the said decision by issue of a writ of certiorari.

2. Three questions arise for decision on the contentions raised at the Bar.

1. Is the petitioner the appropriate person liable to be proceeded against under Section 47-A of the Indian Stamp Act as amended in Orissa ?

2. Has there been any delay in presentation of the appeal ?

3. Is the learned District Judge right in coming to his conclusion that in the facts of this case the demand was not justified ?

3. Question No. 1. Admittedly the petitioner was one of the vendors in respect of the disputed sale deed. Mr. Murty for the petitioner places reliance on the provisions of Section 29 (c) of the Act in support of his contention that the vendor has no liability to pay the stamp duty. As far as material, Section 29 of the Act provides:-

"Duty by whom payable - In the absence of an agreement to the contrary the expense of providing the proper stamp shall be borne-

(a) xx xx xx xx

b) xx xx xx xx

(bb) xx xx xx xx

(c) In the case of a conveyance (including a re-conveyance of mortgaged property) - by the grantee, in the case of a lease or agreement to lease - by the lessee or intended lessee;"

In Annexure-1 there is no finding that there was an agreement to the contrary so as to take the matter out of the purview of sub-section (c).

4. Learned Additional Government Advocate contends that we should not assume that there is no agreement to the contrary because before the learned District Judge, petitioner had not raised such a contention. We do not accept the objection of learned Additional Government Advocate. It was obviously the duty of the Additional District Magistrate while raising the demand to record that this was a case covered by the exception and not by sub-section (c). There is no such finding. We must, therefore, proceed on the footing that it was a case to which normal rule applied and being a vendor, petitioner had no liability under sub-section (c) of Section 29 of the Act. In view of that position, the proceeding against the petitioner