CHHOGALAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision is directed against the order of the Collector, Chittorgarh, dated 13-1-65. The facts of the case, in brief, are that the applicant Chhogalal tendered in evidence a document in the court of the Civil Judge, Chittorgarh which was not stamped. The learned Civil Judge held that this document amounted to a conveyance and was chargeable with stamp duty as such. He assessed stamp duty at Rs. 373/- levied penalty of Rs. 3,700/ -. The applicant went in revision to the High Court of Judicature for Rajasthan at Jodhpur, contesting that the document was memorandum. The High Court vide their of 9-8-1960 held the document clearly to be a conveyance passing the title to property. Its primary intention was held to evidence the conveyance of the property from executant to the applicant purchaser. The applicant thereafter compromised the suit which he had filed in the court of the Civil Judge. The Civil Judge, however, impounded the document and sent the same to the Collector Chittorgarh under sec. 38 (2) of the Indian Stamps Act. The learned Collector Chittorgarh, after hearing the parties, held that the amount of Of Rs. 370/- was payable by Shri Chhogalal. He, however, reduced the penalty to Rs, 1,850/-, and ordered that both the amount of the stamp duty as well as the penalty should be resiled from the applicant aggrieved by this order this revision has come before this court. Choghraj, the executant, on this document, was also served a notice, but he did not attend and the proceedings were taken against him exparte.

(2.) I have heard the counsel for the parties and also seen the record. The learned counsel for the applicant urged that as held in A. I. R. 1955 Bombay at page 79 in reference of Jagdish Mills Limited , the duty was payable by the executant and not by his client. I have carefully examined the aforesaid authority of the Bombay High Court. That was a case under the Companies Act, and it was held that liability in respect of transfer of shares not duly stamped is upon the executant. The law on the point is contained in sec. 29 of the Indian Stamp Act, which says that in the sense of an agreement to contrary, the expense of providing the proper stamp shall be borne and the relevant provisions in the present case is clause (c) of the Section which says "in the case of a conveyance by the grantee. It is, therefore, evident that in the present case the expense of providing the stamp duty was to be borne by the applicant himself in whose favour the conveyance deed had been made. In the Bombay case the relevant provision under sec. 29 is Article 62 (c) which provides that the expense of stamp in the case of transfer of shares by the person drawing, making or executing such instrument. The aforesaid authority of the Bombay High Court was inapplicable to the facts of this case. This contention of the learned counsel for the applicant that in the case of a conveyance the executant bears the Stamp is therefore, untenable and it is the applicant himself who is responsible for the payment of the stamp duty under sec. 29 (c) of the Stamp Act.