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2011 (3) RCR(Civ) 365
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
PERMOD KOHLI, J.
Iqbal Singh and others - Petitioners
Versus
State of Haryana & others - Respondents
CWP No. 5461 of 2008
Decided on: 30.9.2010
Stamp Duty - Property Rights - Indian Stamp Act, Section 2(10), Section 54 of Transfer of Property Act - The court discussed the nature of the transaction as a sale deed and the definition of conveyance and sale under the Indian Stamp Act and the Transfer of Property Act. It highlighted the distinction between conveyance and release, emphasizing that conveyance involves a transfer for consideration, while release relates to renouncing one's interest without consideration. The court also emphasized the rights of co-parceners in ancestral property and the limitations on the authority of the audit party in determining stamp duty.
Fact of the Case:
The petitioner challenged orders determining stamp duty on a relinquishment deed as a sale deed, which was executed in respect to common ancestral property.
Finding of the Court:
The court found that the relinquishment deed did not constitute a sale deed and that the determination of stamp duty as a sale deed was not sustainable in law. It also noted the violation of principles of natural justice in the proceedings.
Issues: The issues included the nature of the transaction, jurisdiction of the authorities, and the authority of the audit party in determining stamp duty.
Ratio Decidendi: The court emphasized the distinction between conveyance and release, the rights of co-parceners in ancestral property, and the limitations on the authority of the audit party in determining stamp duty.
Final Decision: The impugned orders determining stamp duty as a sale deed were set aside, and the petition was allowed.
PERMOD KOHLI, J. (ORAL) - This petition is directed against the order dated 28.2.2006 (Annexure P-3) passed by the Collector, Pehowa and the order dated 18.4.2007 (Annexure P-5) passed by the Commissioner, Ambala Division, Ambala.
2. Facts necessary for the purpose of this petition are noticed hereunder:-
One Ishar Singh was the grandfather of the petitioner. He had two sons namely Partap Singh and Dalip Singh. Petitioners are sons of Partap Singh, whereas Dalip Singh was survived by his daughters, one of them being Smt. Jagir Kaur. After the death of Ishar Singh his property devolved upon Partap Singh and Dalip Singh, his sons and after their death upon their respective Legal Heirs including petitioners (Legal Heirs of Partap Singh and Smt. Jagir Kaur daughter of Dalip Singh). It is not in dispute that no partition took place between the parties. Jagir Kaur daughter of Dalip Singh relinquished her share of land measuring 12 kanals 7 marlas out of total land measuring 60 kanals and 15 marlas comprising khewat no.129, Kitta 19 and land measuring 4 marlas comprised in khewat no. 129 kitta 3, situated in village Kheri Shisgaran, Tehsil Pehowa, District Kurukshetra in favour of the petitioners vide registered documents titled as Dastbardarnama. Document was duly presented before the Sub Registrar, Pehowa, District Kurukshetra, who registered the same on 3.6.2002.
3. At the time of registration perhaps no stamp duty was paid on the instrument. The petitioners were served with a notice dated 10.2.2005 by the Collector, Pehowa asking the petitioners to appear before him in connection with the lesser valuation of the property registered on 3.6.2002 by the Sub Registrar, Pehowa. Petitioners appeared before the Collector and objected to the show cause notice. The Collector, however, passed the order dated 28.2.2006 determining the stamp duty payable on the relinquishment deed at the rate of conveyance treating the same to be a sale deed and demanded an amount of Rs. 54,0,10/-being stamp duty. This determination has been made on the basis of the objections of the audit party of Accountant General, Haryana for which an audit note for the year 2002-03 was made. Petitioners preferred an appeal before the Commissioner, Ambala Division, Ambala, who dismissed the same vide his order dated 18.4.2007. Both the authorities below have unanimously declared the document to be a sale deed and levied the stamp duty payable on the deed of conveyance. While determining the nature of the transaction as a sale deed, it has also been observed that Jagir Kaur being a female could not have relinquished the property in favour of her cousins i.e the petitioners herein.
4. In the reply filed by the respondent no.2, the stand raised in the impugned order is reiterated. It is revealed that audit party of Accountant General, Haryana raised objections regarding the stamp duty payable in respect of the deed in its audit note for the year 2002-03. On the basis of the audit note the Sub Registrar referred the case to the Collector, Pehowa, who had passed the order after hearing the parties and determined the stamp duty payable on the document as a sale deed. The respondents also justified the order of the Collector and that of the Commissioner, Ambala Division, Ambala.
The petitioners have raised following contentions:-
1. That the document i.e the relinquishment deed having been executed in respect to common ancestral property is valid.
2. There is no transaction of sale nor the document can be termed as a sale deed.
3. Sub Registrar has no jurisdiction to make a reference to the Collector after a period of almost 3 years from the date of registration of the document.
4. The reference is barred by time.
5. The Collector had no jurisdiction.
5. It is admitted case of the parties that the document i.e the relinquishment deed was executed in respect to a joint property. Jagir Kaur transferred her share in the joint holding in favour of the petitioners, who were a
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