T G THIMMAIAH CHETTY Vs. DIST REGISTRAR KURNOOL

JUDGEMENT

(1.) This is a reference under S. 57(1) of the Stamp Act.

(2.) Petitioners 1 to 3, the father of the 4th petitioner late T. G. Viswanatha Chetty and the father of the 5th petitioner late T. G. Padmanabha Chetty are brothers. All the five members are the sons of late T. G. Pompaiah. They are members of undivided Hindu family. After the death of T. G. Viswanatha Chetty and T. G. Padmanabha Chetty, their major sons, the 4th and 5th petitioners herein were participating in the family business and other affairs as representatives of their respective branches. To distribute and divide the immovable properties, the assets and liabilities they have appointed five arbitrators, who passed an award on 2-1-1976. The arbitrators effected a division and allotted the 'A' Sch. properties of the value of Rs. 46,700/- to the 1st petitioner, and 'B' Sch. properties of the value of Rs. 1,20,000/- to the 3rd petitioner. The residue contained in 'C' Sch. of the value of Rs. 6,15,900/- was kept towards the joint share of petitioners 2, 4 and 5. When the award engrossed on a stamp paper of Rs. 5,710/- was submitted for registration, it was impounded by the Sub Registrar on the ground that the stamp duty payable was Rs. 20,550/- and sent the same to the District Registrar, Kurnool. By proceedings dt. 17-7-1978, the District Registrar, Kurnool affimned the decision of the Sub Registrar after hearing all parties concerned. The petitioners went up in revision before the Commissioner of Survey, Settlements and Land Records (Chief Controlling and Revenue Authority). Before the Commissioner, it was mainly contended that the stamp duty payable was only on the total value of 6A' and 'B' Sch. properties at the rate mentioned in Art. 40 of Sch. I-A of the Stamp Act and that the value of 'C' Sch. i.e., Rs. 6,15,900/- which represented the largest share remaining after the property is partitioned should be eliminated and 'A' end 'B' Sch. properties must be deemed to be the properties separated from the 'C' Sch. properties. The Commissioner opined that stamp duty was payable only on the value of 'A' and 'B' Sch. and not on 'C' Sch. and referred the following question for our opinion. "Though division is one, among five brothers one share is given to one brother, one share to another brother, but the third share is given to three brothers, would this be called division in severalty or not."

(3.) We are afraid that the question is not happily framed. The point for consideration is whether the award is an instrument of partition involving division in severally and if so, what is the stamp duty payable?