KOMAL CHAND Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is a reference under Section 57 (1) of the Indian Stamp Act, 1899 (hereinafter referred to as the Act) by the Board of Revenue as the Chief controlling Revenue Authority pursuant to an order made by a Division Bench of this Court on 9th January 1962 in Misc. Petition No. 283 of 1961 directing the chief Controlling Revenue Authority to state the case of the petitioners for the opinion of this Court on the following questions : 1. Whether after the registration of a document the registering authority can hold an enquiry regarding the value of the property covered by the deed and call upon the executant to pay the deficit stamp duly?

(2.) WHETHER the stamp duty payable on the deed executed by the petitioner Komalchand is as for a partition deed or for a settlement deed? 2. The material facts are that after the registration on 31st October 1956 of a deed described as 'takseemnama' (deed of partition) executed by the petitioner komalchand, the Sub-Registrar, Jabalpur, sent the document to the Collector, jabalpur, purporting to act under paragraph 232 of the Registration Manual reporting that the deed was insufficiently stamped The Sub-Divisional Officer, jabalpur, before whom the report of the Sub-Registrar came up for disposal, accepting the report, held that the value of the property to which the deed related was Rs. 2,93,000/- and not Rs. 30,000/ as stated in the deed. Accordingly he made an order directing the petitioner to deposit Rs. 2,859/- being the deficit stamp duty. The Sub-Divisional Officer treated the deed as one of sale The petitioners then made an application under Section 56 of she Stamp Act before the board of Revenue which is the Chief Controlling Revenue Authority. That authority took the view that the document was a settlement deed and chargeable to stamp duty under Article, 58 of Schedule I-A to the Stamp Act; and that the executant had not stated in the deed the true value of the property which was Rs. 2,93,000/.

(3.) THE answer to the first question turns on the provisions of Section 33 (1) of the act which runs as follows: "every person having by law or consent of parties authority to receive evidence, and every person in charge 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, stall, if it appears to him that such instrument is not duly stamped, impound the same. " it will be observed that under this provision the power to impound an instrument can be exercised only by a person having by law or consent of parties authority to receive evidence and in every person in charge of a public office, excepting a police officer, and only when the instrument is produced before them in the performance of their functions. The authorities mentioned in Section 33 (1) have no power to impound an instrument if it is produced before them, or comes up before them, or is with them otherwise than in the performance of their functions. The expression "any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions" necessarily implies that the power to impound under Section 33 (1) can be exercised only so long as the function is not performed or completed and not afterwards. The Sub-Registrar appointed under Section 7 of the Indian Registration Act, 1908, for registration of documents is no doubt a person in charge of a public office who has to perform the duty and function of registering a document under the registration Act, and when a document is presented before him for registration it comes up before him in the performance of his functions. Section 35 of the Stamp Act, inter alia, says that no instrument chargeable with duty shall be registered by any public officer unless such instrument is duly stamped This provision thus casts a duty on the registering officer to examine whether an instrument presented for registration is duly stamped. If, as Section 35 says, an instrument chargeable with duty shall not be registered unless such instrument is duly stamped, then it follows that the registering officer must 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 under section 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 a 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 under section 33 to impound the instrument.