CHATURBHUJDAS DWARKADAS AGAR Vs. STATE OF M P

JUDGEMENT

(1.) THIS petition has been filed by the petitioners against an order dated 29-10-1971, passed by a Member, Board of Revenue, exercising powers under section 56 of the Indian Stamp Act.

(2.) THE Facts giving rise to the present petition are that on 10-4-1957 krishna Ginning Factory including the land situated at Zinga Khoh, Agar, tehsil Agar, District Shajapur, was mortgaged by the joint Hindu family of munshiram Gopalji Vithaldasji through its 'korteas' Shri Shankar Khan Das son of Munshiram Gopal and Purushottamdas son of Munshiram Vithaldasji through with Shri Ramkishan Gopilal Goyal. Then Shri Ramkishan Goyal gave this on lease to Messrs Jain Brothers, a registered partnership firm of Agar of which respondents Nos. 4, 5, 6 and 7 are partners. The lease was given with the consent of the mortgagor and possession of the factory was also delivered to m/s. Jain Brothers. On 6-5-66, 'kartas' of the Hindu Undivided family munshiram Gopal Vithaldas created a subsequent mortgage of the said factory with M/s. Jain Brothers for Rs. 2000. This mortgage was a usufructuary mortgage and according to the terms of the said deed, the mortgagees were entitled to remain in possession till 30th September 1977 and on that date the mortgagees were to hand over possession of the factory back to mortgagors. It was also agreed in this mortgage that M/s. Jain Brothers, the mortgagees, could spend any amount for making improvements in the factory with the consent of the mortgagors and, if such amount is spent, the mortgagors would pay interest at the rate of 7 per cent per annum on the amount so spent before the redemption. According to the terms of the said mortgage-deed, M/s Jain Brothers the mortgagees with the consent of the mortgagors, spent about Rs. 70000 (seventy thousand) for improvement of the said factory ; they made certain construction and also installed machine. The mortgagors, thinking that they have to pay the aforesaid sum of Rs. 70000 and interest thereon before the date of redemption i. e. 30th September, 1977 and also realising that they were not in a position to pay the same, decided to sell out their rights in the factory i. e. equity of redemption, to the mortgagees for Rs. 18000 and consequently on 16-6-1970, executed a deed of sale in respect of the equity of redemption of the said factory in favour of M/s Jain Brothers for an amount of Rs. 18000. The said deed of sale was executed on stamps of Rs. 810 and the deed was presented for registration before the Sub-Registrar, Agar, who impounded the document and referred the matter to the Sub-Divisional Officer of Agar for considering the question of starrlp duty and penalty. The Sub-Divisional Officer, after hearing the petitioners, by his order dated 12-11-1970 held that the document in question does not contain the correct value of the property and, the value set forth in the instrument being improper, it should have been valued at Rs. 88000, and the stamp duty was found deficit by Rs. 3406 which he,directed to be recovered and equal amount to be recovered as penalty. Against this order, the petitioners went up in revision before the Board of Revenue. The learned Member of the board of Revenue, exercising jurisdiction under section 56 of the Indian Stamp act, passed an order further enhancing the duty and penalty chargeable against the petitioners. After the order of the Board of Revenue, the Sub-Divisional officer issued a notice to the petitioners for recovery of duty of Rs. 4536. 50 np. and an equal amount as penalty and therefore the petitioner have filed this petition under Article 226 of the Constitution of India.

(3.) WHEN the revision petition was filed before the Board of Revenue, the learned Member proceeded to exercise power under section 56 of the Indian " stamp Act (hereinafter referred to as 'the Act' ). In exercising these powers, the learned Member re-assessed the duty chargeable from the petitioners. It was contended before us that the powers, the Board could exercise under section 56 of the Act, were the powers of Control only and not of an appellate tribunal. It was also contended that in a case, like the present, where questions about interpretation of the documents and interpretation of the provisions of the Indian stamp Act are involved, the Board of Revenue ought to have exercised jurisdiction under section 57 of the Act, by making a reference to this Court rather than deciding the matter itself. It is not in dispute that the questions involved in the matter are important question of law relating to the interpretation of certain provisions of the Indian Stamp Act and also about the interpretation of the document which was sought to be registered. Learned counsel for the respondent State also contended that the appropriate procedure, which the Board should have followed, was to make a reference to this Court under section 57 of the Act, rather than deciding the question itself.