Vimalchand vs State of M.P. and others

R.K. Vijayavargiya, J.—This reference u/s 57(1) of the Indian Stamp Act, 1899 (hereinafter referred to an the Act) is by the Board of Revenue as the Chief Revenue Controlling Authority under the Act has been made on the following facts.

On 14-2-1974 one Rupchand son of Hazarimal resident of Badnagar executed a deed of settlement settling his property in favour of his adopted son Vimalchand, his daughter Kamlabai and daughter-in-law Prembai wife of Vimalchand. This deed of settlement was executed on a stamp paper of the value of Rs. 1, 763, the valuation of property having been shown as Rs. 78,620. This deed of settlement was presented for registration before the Sub-Registrar and was duly registered. Subsequently the Inspector of Stamps and Registration, Indore Division inspected the records of the office of the Sub-Registrar and he directed the Sub-Registrar to refer the case to the Sub-Divisional Officer and Collector of Stamps because in his opinion the document should have been stamped as a deed of gift and not as a deed of settlement. Thereupon the Sub Registrar referred the matter to the Sub-Divisional Officer and Collector of Stamps, Ujjain with the report that the document has been under stamped to the extent of Rs. 2,387. The Sub-Divisional Officer and Collector of Stamps, Ujjain after hearing the executant of the document held that the document was insufficiently stamped and ordered the petitioner to make good the deficiency of Rs. 2,387. He also imposed a fine of Rs. 1,000 Aggrieved by the order of the Sub Divisional Officer and Collector of Stamps, Ujjain the petitioner submitted a revision petition to the Board of Revenue u/s 56(1) of the Act. The Board of Revenue after hearing the parties was of the opinion that the Sub-Registrar had no jurisdiction to make the reference and the Sub-Divisional Officer and Collector of Stamps, Ujjain had no jurisdiction to pass the impugned order on the ground that after registering the deed of settlement the Sub-Registrar had become functus officio and had no power to make a reference to the Sub-Divisional Officer and Collector of Stamps Ujjain in the matter and hence made this reference.

Having heard learned counsel for the parties we are of the opinion that this reference must be accepted. Section 33(1) of the Act provides as follows:

33 (1). Every person having by law or consent of the parties authority to receive evidence, and every person incharge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion with duty, is produced or comes in the performance of his functions, shall if it appears to him that such instrument is not duty stamped, impound the same.

The Sub-Registrar before whom the document was produced for registration was a person incharge of a public office and had therefore the power to impound the document if in his opinion it was not duly stamped and to send the same in original to the Collector of Stamps u/s 38(2) of the Act before registering the same because section 35 of the Act provides that no document shall be registered by any public officer unless the same is duly stamped. The Act does not empower the Sub-Registrar to impound the document after the same is registered by him even if it is not duly stamped. After registering an instrument the Sub Registrar becomes functus officio and has no power to impound the same. In similar circumstances a full bench of this Court in Komal Chand and Another Vs. The State of Madhya Pradesh, held that the registering officer has to perform the duty of seeing whether an instrument presented for registration is or is not duly stamped before admitting it to registration and not afterwards. If he finds that the document is not duly stamped, then he must impound it u/s 33 of the Act. Neither in the Registration Act nor in the Stamp Act is there any provision giving to the registering officer any power to examine whether an instrument already registered was or was not duly stamped and to impound it. As soon as the registering officer registers document presented to him for registration, the function, in the performance of which the document was produced before him, is over and thereafter becomes functus officio having no power u/s 33 to impound the instrument. We are in respectful agreement with the law laid down in the aforesaid Full Bench decision.

It was contended on behalf of the State that u/s 47-A of the Act as amended by the Indian Stamp Act (Madhya Pradesh Second Amendment) Act, 1975, the Sub-Registrar has the power to impound the document even after registration if in his opinion the document was not duly stamped and the Collector had also the power to deal with such document suo motu within five years from the date of the registration of any instrument However, section 47-A of the Act applies only when the question involved is about the correctness of the market value of the property dealt with by the instrument. But in the present case the question of market value of the property is not involved. Therefore, the provisions of section 47-A of the Act are not attracted to the present case. In the circumstances the Sub-Registrar after registering the instrument in question bad become functus officio and he had no power to impound the document and refer the matter to the Sub-Divisional Officer and Collector of Stamps, Ujjain and the latter had no power to pass the impugned order holding that the document was insufficiently stamped and directing the petitioner to make good the deficiency and also to impose a fine of Rs. 1,000 on the petitioner.

As a result of the discussion aforesaid the reference is accepted. In the circumstances the parties are directed to bear their own costs of this reference.