MOHAMMED NACHIAR Vs. DISTRICT REGISTRARCHIDAMBARAM

JUDGEMENT

(1.) The petitioner herein presented a document of the year 1978 to the Sub- Registrar, Portonovo, claiming that she was the owner of certain properties in Sirkali and Chidambaram Taluks and in 1965 she had created a wakf dedicating all the properties for charitable purpose and in the year 1978, she executed the document in question providing for appointment of mutavalli to succeed her and the same was presented to the Sub-Registrar on 1-6-1978. Thereafter, the Sub-Registrar referred the document to the District Registrar, Chidambaram, who has been invested with the powers of the Collector under the Indian Stamp Act (II of 1899) (hereinafter referred to as `the Act') and that he had to take a decision as to whether the document is a settlement requiring stamp duty under Article 58 of the Act or the Act or otherwise. Since the document was presented before the Sub-Registrar, Portonovo, a Public Officer, for registering the instrument, the Sub-Registrar has impounded the document u/s. 33(1) of the Act and sought for guidance of the District Registrar u/s. 38(2) of the Act. It was considered by the District Registrar, being the respondent herein, that the instrument calls for payment of deficit duty and penalty u/s. 40(1)(b) of the Act, and therefore, the petitioner was called upon to pay the deficit duty of Rs. 1,889/-. It is at that juncture, the petitioner sought for withdrawal of the document, which was refused. Hence, the present writ petition by the petitioner.

(2.) Mr. T. V. Balakrishnan, learned counsel for the petitioner, would at the outset state that, when the executant of the document has the right to seek for withdrawal, there being no specific provision made either in the Act or in the Rules framed thereunder, the public authority is bound to return the document and it is not open to him to insist on payment of stamp duty and compel him to have the document registered. In essence, his contention is, no person, who is not desirous of having the document registered, can be compelled by the registering authority to complete the registration, and if at all stamp duty is to be paid, it will be payable only if the document is to be registered. When the petitioner had already expressed her desire not to have the document registered, the Sub-Registrar is duty bound to return the document. In support of this contention, he relied upon not only the provisions of the Registration Act, but also R. 29 of the Rules framed under the Act, which provides that if the registration fee is not paid in respect of an impugned document which has been received from the Collector, then the presentment would not be entitled to have the registration completed as provided under R.29 (4) of the Rules. Though these rules do not provide for the return of the document, as an analogy he referred to the Rules framed by the Uttar Pradesh Government. the present case is not concerned with payment of registration fees, but the duty payable under the Act and therefore, the need to rely upon any of the provisions of the Registration Act or the Rules framed thereunder, does not exist and it is too premature to deal with the situation which may develop under the provisions of the said Act.

(3.) When the present claim is confined only to the payment of stamp duty, and after the document is impounded, whether the petitioner can ask for the return of the document is the main point to be considered. The respondent has sworn to in the counter-affidavit that the Sub-Registrar has impounded the document. This claim was refuted by the petitioner, which resulted in the file being produced into Court and they show that the Sub-Registrar has (matter in vernacular omitted - Ed.) impounded the document, and the document has then been sent to the respondent. Therefore, when neither the provisions of the Act nor the rules framed thereunder envisage return of the impounded document without payment of the stamp duty whether by relying upon Section 31 of the Act, the petitioner can seek for return of the document alone has to be looked into. As soon as the document was received, while forwarding it to the responden, the statement accompanying the document itself mentions in column 3 that it has been impounded on 23-2-1979.