Saradambal Rajendran alias Sarada Rajendran and others v. District Registrar, Office of the District Registrar (General), Ernakulam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **WEDNESDAY, THE 20[TH] DAY OF OCTOBER 2021 / 28TH ASWINA, 1943** ## **WP(C) NO. 10872 OF 2021** ## **PETITIONERS:** - 1 SARADAMBAL RAJENDRAN ALIAS SARADA RAJENDRAN AGED 78 YEARS,W/O. M. RAJENDRAN, RAJAMMA NILAYAM, ERNAKULAM HEAD POST OFFICE, ERNAKULAM DISTRICT, PIN - 682011, - 2 R. SURESH,S/O.M. RAJENDRAN, RAJENDRA NIVAS, ERNAKULAM COLLEGE POST OFFICE, ERNAKULAM DISTRICT, PIN - 682035. - 3 R. RAJENDRAN,S/O.R. RAMESH, RAJAMMA NILAYANM, ERNAKULAM HEAD POST OFFICE, ERNAKULAM DISTRICT, PIN - 682011. - 4 S. MAGESH KARTHIK,S/O. R. SURESH, RAJENDRA NIVAS, ERNAKULAM COLLEGE POST OFFICE, ERNAKULAM DISTRICT, PIN - 682035. BY ADVS. K.M.ANEESH SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.ADARSH KUMAR SRI.BIJU VARGHESE ABRAHAM SRI.DILEEP CHANDRAN SRI.SHASHANK DEVAN ## **RESPONDENT/S:** - 1 DISTRICT REGISTRAR,OFFICE OF THE DISTRICT REGISTRAR(GENERAL) 3RD FLOOR, CC 40/1017, PERUMPILLY BUILDING, OPPOSITE TO MAHARAJAS COLLEGE GROUND, HEAD POST OFFICE, ERNAKULAM, PIN - 682011. - 2 SUB REGISTRAR,SUB REGISTRAR'S OFFICE, ERNAKULAM, PERUMPILLY BUILDING, OPPOSITE TO MAHARAJAS COLLEGE GROUND, HEAD POST OFFICE, ERNAKULAM, PIN - 682011. - 3 DISTRICT COLLECTOR ERNAKULAM,DISTRICT COLLECTORATE, FIRST FLOOR CIVIL STATION, KAKKANAD, ERNAKULAM - 682030. BY GOVERNMENT PLEADER SRI SUNIL V.K THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P(C) NO.10872 OF 2021** **2** ## **JUDGMENT** Order of the Registrar(Ext P4) impounding a document (Ext P1) and demanding payment of deficit stamp duty and penalty, is under challenge by the executants of the document. The petitioners contend that they do not want to effectuate the document and hence they seek for return of the document from the Sub Registry Office. 2. The facts necessary for disposal of the writ petition are:- The petitioners are partners of a firm. They executed Ext P1 Partition Deed with respect to the partnership assets. The document was presented for registration. Inter alia, on the grounds of requirement for payment of exorbitant stamp duty and on the legality of the document, the petitioners decided not to proceed further with the document. The petitioners sought for return of the document. However, without acceding to the said request, respondents 1 and 2 as per Ext.P4 order, proceeded to impound the document and required the petitioners to pay the deficit stamp duty and **W.P(C) NO.10872 OF 2021** **3** penalty. The petitioners were further warned that in case of failure to pay the amount as demanded, Revenue Recovery proceedings will be initiated for realisation of the same. Aggrieved, the petitioners have approached this Court. 3. Heard the learned counsel for the petitioners and the learned Government Pleader. 4. The document in question is insufficiently stamped. The parties to the document do not wish to effectuate the document. Under such circumstances, could the petitioners be required to pay the deficit stamp duty and penalty and get the document impounded, is the short question. 5. The issue involved had come up for consideration before a Division Bench of this Court in _**Dr.Abdul Rasheed @ Dr.A.R.Babu v State of Kerala & Others (2018(3) KLT 137).**_ The Division Bench held that, it is within the wisdom of the parties to decide as to whether they should go ahead with the transaction on payment of deficit stamp duty and penalty or to resile from the transaction. It was **W.P(C) NO.10872 OF 2021** **4** held that, if the parties do not wish to take the transaction further, they are entitled for return of the insufficiently stamped instrument. It was ordered that the instrument therein be returned to the presenter. The Division Bench held thus: _“51. If we hold that any document for registration cannot be taken back, and if the transaction cannot be resiled from, it destroys a person's contractual freedom, and his decisional independence. A person can opt out of a transaction any time before the transaction is completed and his act becomes irrevocable – that is he acted on it for his benefit._ _52. We may reiterate that all the provisions bearing upon impounding spring into action only when the document is sought to be used as if it had been duly stamped. When the authorities have received the document for the primary purpose – that is, registration – but find that the stamp is insufficient, they can_ **W.P(C) NO.10872 OF 2021** **5** _point it out. The party can decide either to go ahead with the transaction or to withdraw from it. Better sense may prevail._ _53. Sometimes, as is common, people may assume lesser stamp duty and wish to enter into a transaction. The document presented, the authorities, the experts in the field, may notice that the stamp duty is more. It is for the party either to complete the transaction or to cancel it._ _We do not see how ten times_ _penalty(possibly) imposed on innocuous transaction just because the party has bona fide acted and, then, realised that his estimate is wrong.”_ 6. Though the aforesaid judgment is pending before the Apex Court in SLP No.4833 of 2019 and an order of stay has been granted, the judgment still holds the field and I am bound by the same. 7. Apart from the decision in Dr.Abdul Rasheed's case referred to supra, I deem it **W.P(C) NO.10872 OF 2021** **6** appropriate to discuss certain aspects in support of the conclusion arrived at therein. In terms of Section 33 of the Kerala Stamp Act, a person/authority authorised to receive evidence shall impound an insufficiently stamped instrument produced before him. So also, a person in charge of a public office, before whom an insufficiently stamped instrument is presented in the course of performance of his functions, shall impound the document. The consequence of not getting an insufficiently stamped instrument impounded is provided under Section 34 of the Stamp Act; the instrument cannot be admitted in evidence nor can it be registered. The document can be admitted in evidence or be registered, as the case may be, only on payment of the required stamp duty and penalty. If the party who produced the document in evidence does not want to rely upon the same and to have it received in evidence, he need not pay the stamp duty and penalty _**(See Uthuppan Abraham v State of Kerala(1997 (2) KLT 475), Chanda Pillai v Munsiff,**_ **W.P(C) NO.10872 OF 2021** **7** _**Thiruvalla and Others(1975 KLT 753), Varghese v State of Kerala (1989 (1) KLT 24), Thara Thomas v Narayanan Nair (1989 (1) KLJ 16))**_ . In Thara Thomas (supra) it was held, - _“ The phrase “in the performance of his functions” in the context is meaningful._ - _The document, in order to find that it has been produced or has come in the_ - _performance of the functions of the authority concerned in my judgment, must be one, the party concerned has taken steps to tender in evidence. A more_ - _production of the document cannot therefore be said to be a production within the meaning of that phrase, because, the party who has produced the document, has every right to take the same back before steps to tender it formally in evidence are taken.”_ 8. In Uthuppan Abraham (supra) this Court held, - _“I do not think that the Munsiff has_ **W.P(C) NO.10872 OF 2021** **8** _really jurisdiction to impound any document which comes into his possession. Only the document which is either relied on by the parties for proving the case or admitted in evidence by marking as exhibit is liable to be impounded by the Court. Merely because a document was filed in Court(and when the same was not either proved in evidence or acted upon by any of the parties) the Munsiff cannot order impounding the document or imposing any penalty for insufficiency of the stamp duty.”_ 9. On the same analogy, if the executant of a document presented for registration does not want to effectuate the document and take it any further, he need not pay the stamp duty and penalty. The document is to be returned to the presenter in accordance with Section 71 of the Registration Act. 10. Accordingly, Ext P4 order is quashed. Respondents 1 and 2 shall cause the document to be **W.P(C) NO.10872 OF 2021** **9** returned to the presenter after following the procedure under Section 71 of the Registration Act. Writ petition is allowed as above. Sd/- **SATHISH NINAN** **JUDGE** vdv **W.P(C) NO.10872 OF 2021** **10** ## **APPENDIX OF WP(C) 10872/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PARTITION DEED EXECUTED BY THE PETITIONERS. EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 16.09.2020 EXHIBIT P3 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONERS. EXHIBIT P4 TRUE COPY OF THE ORDER NO. INS(2) 2404/2020 DATED 14.10.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 16.03.2021 IN WP(C) NO. 27592/2020.