Muthalif Sahib alias Muthu Sahib vs The Sub Registrar and Others

T. Meenakumari, J.—The writ petition is for the issue of writ of mandamus to direct the respondents to release the partition deed, Document

No. B 219 of 1985 on the file of the first respondent to the petitioner.

The case of the petitioner is that his brother Batesa Sahib died in the year 1985 leaving behind him his wife Hawvanna Bibi and the petitioner.

The petitioner''s brother had no issues. Under the provisions of the Mohammadan Law the petitioner entered into a partition with the wife of his

brother and the partition deed dated 1811.1985 was executed and the same was registered. The second respondent by his letter dated 6.3.1986

informed the petitioner that he has treated the partition deed as a conveyance and therefore impounded the document. According to him, the stamp

duty ought to have been paid under Article 23 as a conveyance and the stamp duty of a sum of Rs. 22,065 ought to have been affixed. Therefore,

the second respondent demanded a sum of Rs. 21,937. To the above letter, the petitioner replied on 16.5.1986. The second respondent without

considering the reply, has ordered recovery of Rs. 20,362. As against the said order, the petitioner seems to have presented a petition before the

third respondent seeking a reference u/s 57 of the Indian Stamp Act to refer to the High Court to consider whether the document is a partition

deed or a conveyance. The case of the petitioner is that the third respondent without considering the question whether the matter can be referred to

the High Court, has rejected the petition. The petitioner filed W.P. No. 10409 of 1987 for the issue of writ of certiorarified mandamus. This Court

by order dated 18.3.1988 allowed the writ petition directing the third respondent to make the reference u/s 57 of the Indian Stamp Act, 1899. For

the non-compliance of the order of this Court, the petitioner issued Advocate''s notice dated 15.9.1989 requesting the third respondent to carry

out the order of this Court. As there was no action forthcoming on the part of the respondents, the petitioner herein has filed the present writ

petition for the issue of writ of mandamus directing the respondents to release the partition deed dated 18.11.1985.

In this case it has been argued by the learned Counsel for the petitioner that when the respondents have got a doubt about the nature of the

deed, there is a duty cast upon the authorities u/s 57 of the Indian Stamp Act read with Section 56 to refer the matter to the High Court to be

decided by not less than three Judges of the High Court to which it is referred. He has argued that the authorities have not acted upon to refer the

matter u/s 57 in spite of the orders passed by this Court in W.P. No. 10409 of 1987. The petitioner has been forced to file this writ petition as the

authorities have neither referred the matter to the High Court nor they have released the document.

Learned Government Advocate has stated that the records and instructions reveal that an action has been taken to refer the matter to the High

Court in SR. No. 43029 of 1988 dated 21.6.1988 and the same was hot traceable either in the Registry or in their office.

The fact that the matter has been referred to this Court on 21.6.1988 in SR. No. 43029 of 1988 is evident from the observations made by His

Lordship Justice Srinivasan in W.M.R. No. 8300 of 1990 in W.P: No. 5314 of 1990. It has been observed by the learned Judge that the

reference is not yet numbered as there has been delay in representation and rectification of certain defects pointed out by the office. The reference

has been represented on 24.4.1992 by the then Additional Government Pleader. When the matter came up for hearing, effort has been made by

both the counsel to trace out the papers from the Registry as well as from the Government Pleader''s office and also from the concerned

Department, but of no avail. The papers could not be traced out and they were not made available In view of the above, it has to be held that the

matter has not been referred to be decided by; the three Judges of the High Court as required u/s 57 of the Act. The counsel has argued that under

the provisions of Section 56 of the Indian Stamp Act, the Collector can exercise the powers under chapter IV and chapter V and under Clause (a)

of the first proviso to Section 26 which is subject to the control of the Chief Controlling Revenue Authority. The reading of Section 56 of the Indian

Stamp Act is as follows:

Control of, and statement of case to, Chief Controlling Revenue Authority-

(1) The powers exercisable by a Collector under chapter IV and Chapter V and under Clause (a) of the first proviso to Section 26 shall in all

cases be subject to the control of the Chief Controlling Revenue Authority.

(2) If any Collector, acting u/s 31, Section 40 or Section 41, feels doubt as to the amount of duty with which any instrument is chargeable, he may

draw up a statement of the case, and refer it, with his own opinion thereon, for the decision of the Chief Controlling Revenue Authority.

(3) Such authority shall consider the case and send a copy of its decision to the Collector, who shall proceed to assess and charge the duty (if any)

in conformity with such decision.

So, as per Section 56(2), if any Collector, acting u/s 31, Section 40 or Section 41, feels doubt as, to the amount of duty with which any instrument

is chargeable, he may draw up a statement of the case, and refer it, with his own opinion thereon, for the decision of the Chief Controlling Revenue

Authority. As per Section 56(3) of the Indian Stamp Act, the Chief Controlling Revenue Authority, shall consider the case and send a copy of its

decision to the Collector, who shall proceed to assess and charge the duty (if any) in conformity with such decision. According to Section 57 of the

Indian Stamp Act, it reads as follows:

Statement of case by Chief Controlling Revenue Authority to High Court-

(1) The Chief Controlling Revenue Authority may state any case referred to it u/s 56, Sub-section (2), or otherwise coming to its notice, and refer

such case, with its own opinion thereon,--

According to the provisions of Section 57(1) of the Act, the Chief Controlling Revenue Authority may state any case-referred to it u/s 56, Sub-

section (2) or otherwise coming to its notice, and refer such case, in its own opinion thereon, if it arises in the Union, Territory of Pondicherry to

the High Court of Madras, and as per Sub-section (2) of Section 57 of the Act, every such case shall be decided by not less than three Judges of

the High Court to which it is referred, and in case of difference, the opinion of the majority shall prevail. According to my view, Section 57 of the

Act must be read with the provisions of Section 56 of the Acts According to Sub-section (2) of Section 57 of the above Act, the duty is cast upon

the Chief Controlling Revenue Authority to refer the matter to the High Court. The Chief Controlling Revenue Authority, Board of Revenue,

Madras, while dealing with the case referred to u/s 56(2) can state a case and refer it to the High Court only if it is an instrument, namely, one that

is signed. In this case it is not disputed that the document submitted is an instrument and in such a case it has to refer it to the High Court. The

above proposition of law is laid down in The Chief Controlling Revenue Authority, Madras Vs. State Bank of India, Madras, . In Banarsi Das

Ahluwalia Vs. The Chief Controlling Revenue Authority, Delhi, , the Apex Court held that Section 57(1) imposes a duty on the Authority to state a

case when it raises a substantial question of law. The Apex Court also observed that it also must now be taken as settled that, that duty is not

affected, by the question whether the case is pending before the Authority or not, The principle underlying the decision is that Section 57 affords a

remedy to the citizen to have his case referred to the High Court against an order of a Revenue Authority imposing stamp duty and penalty,

provided the application involves a substantial question of law and imposes a corresponding obligation on the authority to refer it to the High Court

for its opinion. Such a right cannot be construed to depend upon any subsidiary circumstance such as the pendency of the case before the

Authority. In view of the above decision, it can be said that as per Section 57(1) of the Indian Stamp Act, the duty is cast upon the authorities to

refer the matter to the High Court. It has also been held by the Supreme Court in Chief Controlling Revenue Authority v. Maharashtra Sugar Mills

Ltd. AIR 1950 S.C. 218 : (1950)2 M.L.J. 564 : 1950 S.C.J. 444, that the power to make a reference u/s 57 of the Act is not only for the

appellant. It is coupled with a duty cast on him, as a public officer to do the right thing and when an important and instricate question of law in

respect of the construction of a document arises, as a public servant it is his duty to make the reference. If he omits to do so it is within the power

of the court to direct him to discharge that duty and make a reference to the court. It has also been interpreted that the word ""may"" in Section

57(1) cannot be construed as merely permissive. When the matter involves questions of law, depending upon the construction to be put on the

deed and two or more constructions are not to be rules out and when the rights of the party are vitally affected, the authority concerned shall not

decline to refer the matter to the High Court u/s 57 of the Indian Stamp Act AIR 1985 (Mad) 25 : AIR 1950 S.C. 218. Basing on the above, it

has to be said that the second respondent has failed in its duty to refer the matter to the High Court under the provisions of Section 57 of the Indian

Stamp Act. In such a case, basing on the above judgments it can be held that the respondents have violated the provisions u/s 57 of the Act in not

referring the matter to the High Court. In the above circumstances, it would be sufficient if a direction is issued to the third respondent to take

action as per the provisions of Section 57 of the Indian Stamp Act within two months from the date of receipt of a copy of this order. With the

above observations, the writ petition is allowed. No Costs.