IMPORTANT POINT
The court determined that possession prior to a written memorandum of settlement negates co-ownership status under Section 2(15) of the Indian Stamp Act, thus penalties imposed without justification are invalid.

JUDGMENT :

PIYUSH AGRAWAL, J.

1. Since the similar controversy involved in the both the writ petitions, both are being decided together with this common judgment.

2. For convenience, the facts of Writ-C No. 5229 of 2021 are being delineated here:-

3. Heard Sri Tarun Agrawal, learned counsel for the petitioners, and Sri A.C. Mishra, learned Additional Chief Standing Counsel for the State-respondents.

4. By means of instant writ petition, the following prayer has been made:-

“(I) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 22.12.2020 passed by the respondent no.2 and the impugned order dated 31.05.2106 passed by the respondent no.3 (Anneuxre Nos. 13 & 9 respectively);

(II) Issue a writ, order or direction in the nature of mandamus restraining the respondents from undertaking any coercive measures to recover the amount of deficiency of and penalty imposed vide the impugned order dated 22.12.2020 passed by the respondent no.2 and impugned order dated 31.05.2016 passed by respondent no.4;

(III) Issue a writ, order or direction in the nature of mandamus commanding the respondents to forthwith refund the one third amount deposited by the petitioners alongwith interest @ 9% per annum compounded annually;

(IV) ……………….

(V) ………………..”

5. Counsel for the petitioners submits that the petitioners, who are nine in numbers, belongs to the same family, who possess a joint family properties. He further submits that in order to avoid complication and to maintain peace and harmony in the family, in the month of July/August, 2011, the petitioners entered into an oral settlement for partition of the family properties amongst themselves and also exchanged possession of their respective shares. Thereafter, in order to avoid any further controversy in future, they resolved to reduce the aforesaid oral settlement into writing in the form of a memorandum of settlement on 23.05.2012; wherein terms and conditions of the oral settlement dated July/August 2011 was mentioned. It was also mentioned therein that ten months’ ago, the possession was occupied by the respective family members.

6. Thereafter, one of the family members to seek declaration of his title instituted a suit in which compromise dated 29.09.2012 was filed, which took place pursuant to the memorandum of settlement dated 23.05.2012. Thereafter, order dated 8.10.2012 was passed and on 16.10.2012 pursuant to the aforesaid compromise, decree order was passed.

7. Thereafter, one of the family members, namely; Raghav Swarup applied for sanction of map of his portion before Muzaffar Nagar Development Authority along with copy of the decree and memorandum of settlement. Afterward, memo of the same was forwarded by the officer of Muzaffar Nagar Development Authority to the Collector to enquire about payment of stamp duty.

8. On the said basis, the proceedings were instituted against the petitioners under Indian Stamp Act, 1899 and a notice was issued to which the petitioners submitted their reply, but not being satisfied from the same, the impugned order was passed against which an appeal was filed, which also met the same fate. Hence the instant writ petition.

9. Learned counsel for the petitioners further submits before reducing the memorandum of settlement in writing, the petitioners occupied their respective share of properties pursuant to the oral partition which took place way back in July/August, 2011. He further submits that at the time of execution of Memorandum of Settlement dated 23.05.2012, they were already in possession of their respective share of property as per oral settlement between them.

10. He further submits that once the petitioners were not co-owners of the property in question, Section 2 (15) of the Indian Stamp Act is not applicable. He further submits that even Article 45 of Schedule 1-B of Indian Stamp Act, 1899 does not aid to the State-respondents in any manner. He further submits that the partition deed is also not required for regist