Deochand Bhura vs The State of Madhya Pradesh

Sanjay Yadav, J—Heard on admission.

Petitioner seeks compliance of order passed in writ petition No. 11986/2012 decided on 08.03.2013. Said writ petition as is evident from the order was directed against the order dated 24.07.2012 passed by Commissioner, Jabalpur Division Jabalpur under Section 56 (A) of the Indian Stamp Act, 1899 as applicable in the State of Madhya Pradesh in the matter of demand of stamp duty on an instrument dated 18.07.2006.

The said instrument was executed by one Usha Hajarnavis on the basis whereof the petitioner claimed bequeathment of plot admeasuring 2880 Sq.ft. situated in Manmohan Nagar, Jabalpur by construing the instrument as a Will. The petitioner on the basis of the instrument sought mutation on record which was declined by Superintendent land records observing the instrument as not a Will but letter recording transfer of title in the immovable property but was not suitably stamped. The Collector of stamps taking cognizance of this order called upon the petitioner to deposit the sum of Rs. 12,28,879/-. The order was taken though various forums rested with the Commissioner, Jabalpur Division Jabalpur who was directed by order dated 06.10.2010 in W.P. No. 10925/2011 to decide the same. That by order dated 24.07.2012 appeal preferred by the petitioner was dismissed upholding the order of impounding and for payment of the stamp duty. The order was affirmed in W.P. No. 11986/2012 decided on 08.03.2014 by coordinate Bench of this Court, holding :

"13. If the aforesaid Vasiyatnama is scrutinized it would be seen that Smt. Usha Hajarnavis says that she gives the right to title and ownership of her property situated in Manmohan Nagar Jabalpur being Plot No. 194 measuring 36X80 total 2880 sq.ft. to the petitioner and for this all her legal heirs have consented. She further says that after her death based on this Vasiyatnama Dr. Deochand Bhura will be deemed as Bhumi Swami and he can get his name entered into all Government and Semi-Government documents and she also says that she has given right to Shri Bhura through a Power of Attorney on 04.01.1999 to transfer the entire property. She says that after her death as this power of attorney will became unfruitful and redundant, she has executed this Vasiyat-Nama to protect the interest and title of Shri Deochand Bhura. If the principle governing interpretation of will, as have been detailed hereinabove, is considered with reference to the fact of the present case and the intention of the testator is analyzed in the background of facts about sale of the property, payment of consideration and surrounding circumstances that has come on record it is clear that parties have infact sold the property in question, for part of the property that was sold a registered sale deed was executed on 5.10.1998, the total consideration for the property was Rs. 2,10,000/-, the entire consideration was received, but for a part for which a registered sale deed could not be executed the will was prepared. Even though sale deed was drawn up on 22.6.2006, for this sale transaction but as it could not be registered after its execution, the will in question was drawn up. This is nothing but a device for transfer the property for which sale consideration was also received and sale deed was executed between the parties. It is, therefore, a case where the will in question is not a will, which under normal circumstances we understood. It is not a simple declaration of the intention of the testator to give her property, on the contrary it is a device and substitute for sale of property or for transfer of immovable property, for which sale consideration was already received. The parties had infact agreed for sale and transfer of the property and as this is now done by an instrument filed as a will, the stamp duty is being imposed. The wording of the will and the intention of the testator clearly shows that it was transfer of her right, title and interest on the property after receipt of consideration, the document is not a will, but is an instrument by which transfer of the right, title and interest of an immovable property is being effected and if that be so, I see no error in the act of respondents in claiming stamp duty on the property in question. Petitioner is contending that the collateral purpose or the collateral circumstances cannot be taken note of for assessing stamp duty, this submission cannot be accepted in the peculiar facts and circumstances of the present case.

Petitioner by relying on the judgment of the Division Bench in the case of Shiv Kumar Saxena (supra) has emphasized that stamp duty is leviable on the instrument only and, therefore, no collateral evidence can be looked into, nor can the intention of the parties derived at on the basis of such collateral material considered. It is stated that the contents of the documents can only be looked into and then a decision taken.

It is not in dispute that this preposition has to be applied for the purpose of considering the question of levying stamp duty on an instrument. However, in this case there are certain peculiar and exceptional circumstances and, therefore, this principle has to be applied in the light of these circumstances.

The documents in question if read as a whole without the aid of any external material would go to show that the document is executed by Smt. Usha Hajarnavis and by the said document she is transferring her property in the name of the petitioner and says that after her death he is the ''Bhumi-Swami'' and in all records his name be entered. That being so, the document read as a whole goes to show that it is the document transferring certain immovable property. For determining the nature of document, it is only this content of the document which is taking note of, the other material available on record, considered by this Court and discussed in this order are with regard to finding out the intention of the parties to see as to whether the document is a will i.e. testamentary document by which the testator is bequeathing her property to the petitioner or anything else. That being so, the collateral material available which is referred to and considered are the material for the purpose of finding out the intention of the parties in the matter of execution of the will and not for the purpose of considering the question of levying the stamp duty on the instrument. In this case the peculiar circumstances warrants this Court to undertake this exercise.

Infact this Court has evaluated the material to consider the question as to whether the document is infact a will or is if something else and on enquiry it is seen that the document even though titled as a Vasiyatnama is not a document which can be termed as testamentary document, executed by a testator for dealing with her property after her death or bequeathed to the beneficiary. On the contrary it is a document which is used as a vehicle for transfer of property. The enquiry and consideration of collateral purpose is only limited to this extent. So far as imposition of stamp duty on the document is concerned, the contents of document itself shows that it transfers the bhumi-swami rights and, therefore, it is an instrument by which transfer of property is effected and, therefore, has to be assessed for payment of stamp duty. That being so, the position of law as contemplated in the case of Shiv Kumar Saxena (supra) is taken note of and met with in this case.

Accordingly, in the totality of facts and circumstances finding action of respondents to be in accordance with law, this petition is dismissed, no order as to costs."

It appears from the document Annexure P/1 that petitioner had preferred an appeal though not clear as to against which order; be that as it may. The said appeal has been dismissed on 13.04.2015 in the following terms "

Considered the submissions put forth on behalf of petitioner. It is contended by him that the respondents be directed to mutate his name in the diversion Khasra on the basis of Vasiyatnama in place of name of testator Smt. Usha Hajarnavis. To say the least, the aspect which has been raised by the petitioner in the present petition has been dwelt upon in extenso in writ petition No. 11986/2012; whereby, instrument claimed to be Vasiyatnama has not been held to be so and the petitioner has been called upon to pay ad valorem stamp duty. The petitioner having suffered the order of dismissal in appeal barred by time wherein the petitioner had failed to show sufficient cause for filing belated appeal, the relief as sought for by the petitioner cannot be granted.

Petition being devoid of substance is dismissed. There shall be no costs.