HARENDER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE petitioner has impugned order dated 25-9-2006 (Annexure P. 3)passed by the Commissioner, Hissar division, Hissar raising a demand of rs. 1,51,343/- as deficiency on account of stamp duty which is payable by the petitioner in respect of release deed which was got registered by her aunt (Bua) vide Vasika no. 1909 dated 7-9-2000. The commissioner has placed reliance on an amendment made in Article 55, Schedule 1 to the indian Stamp Act, 1899 (for brevity 'the Act')by the respondent-State of Haryana. The aforementioned articles reads thus :

(2.) IT is obvious from a perusal of the aforementioned provision that if any person renounced his interest, share or part then he may be exempted from payment of stamp duty if the release is made of ancestral property in favour of brother or sister or son or daughter or father or mother or nephew or niece. The nature of the property has to be ancestral. Keeping in view the aforementioned position, the Commissioner has observed as under: "i have heard the Assistant District attorney and counsel for respondent Nos. 1 and 2 and have considered the facts. After looking into the records that the release deed no. 1892 dated 5-9-2000 which was got registered in the office of Sub Registrar, narwana, a son had released in favour of his mother. In this manner the recipient of release has become full owner. Thereafter the recipient executed a release deed No. 1908 dated 7-9-2000 in favour of nephew. In this manner the land which was received by a mother from her sons has been released in favour of her nephews and it does not come under the definition of ancestral land. The audit party of Accountant General, Haryana has correctly calculated stamp duty of Rs. 1,51,,343/ -. In the notification of Haryana state (Revenue Department) dated 19-4-2000, there is a reference only release of ancestral land therefore, this release is not covered under Govt. (Revenue Department)notification dated 19-4-2000. Therefore, the order of Collector, Narwana dated 7-12-2003 is not valid and is set aside and is sent along with this order that the deficiency of Rs. 1,51,343/- as calculated Audit Party of account General, Haryana, be recovered from the respondents and be deposited in Govt. Treasury. Concerned party be informed of this order. "

(3.) AFTER hearing the learned counsel at some length we are of the considered view that the order passed by the Commissioner, hissar Division, Hissar does not suffer from any legal infirmity warranting interference of this Court because the Commissioner has recorded categorical finding that the nature of the property sought to be transferred to the petitioner cannot be considered ancestral in nature because the property has been transferred to the petitioner by Smt. Santoshi who is real sister of petitioner's father. In such a situation, the nature of the property cannot be considered to be ancestral because the property has come to Smt. Santoshi, from her sons by virtue of release deed. It was thereafter on 7-9-2000 that his aunt Smt. Santoshi executed another release deed on 7-9-2000 bearing No. 1909 in favour of the petitioner. The meaning of expression 'nephew' used in Article 55 of Schedule I of the Act cannot be extended to the petitioner who is alien to the property in the hands of smt. Santoshi. Accordingly, we hold that the petitioner has not been able to prove that the nature of the property is ancestral and therefore ad-valorem stamp duty as per the act is leviable.