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Friday, May 3, 2013

whether the registering authority under the Registration Act, 1908 is bound by the assessment of stamp duty made by the court as per suit valuation, is the question arising for consideration in this case.- Market value for the purpose of Indian Stamp Act, 1899 is not the same as suit valuation for the purpose of jurisdiction and court fee. - The learned Civil Judge has, thus, clearly erred in directing the registration to be done on the basis of suit valuation. The Sheristadar made a mechanical assessment of stamp duty on 1/4th share of the suit property as per the compromise and fixed the stamp duty accordingly for Rs.12,50,000/-. That does not meet the requirement under law. The Suits Valuation Act, 1887 and The Indian Stamp Act, 1899 operate in different fields. = where the registering authority has any difference of opinion as to assessment on the stamp duty of the instrument presented for registration on the orders of the court, it will only be appropriate that Registrar makes a back reference to the court concerned and the court undertakes a fresh exercise after affording an opportunity of hearing to the registering authority with regard to the proper value of the instrument for registration. The registering authority cannot be compelled to follow invariably the value fixed by the court for the purpose of suit valuation.- Accordingly, we set aside the impugned order dated 02.09.2010 of the High Court of Calcutta and order dated 30.03.2001 of the learned Civil Judge, Siliguri and order dated 27.08.2007 of Civil Judge (Senior Division), Siliguri. The court of the learned Civil Judge (Senior Division), Siliguri shall consider afresh the matter after affording an opportunity for hearing to the petitioner and pass appropriate orders with regard to the stamp duty for the purpose of registration of the partition deed. This exercise should be completed within a period of three months from the date of receipt of this order. Appeal is allowed.


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._4167_/2013
[Arising out of S.L.P.(Civil) No. 22263/2011]


ADDL. DISTT. SUB-REGISTRAR SILIGURI ... PETITIONER

VERSUS

PAWAN KUMAR VERMA AND OTHERS ... RESPONDENTS



J U D G M E N T

KURIAN, J.:




Leave granted.


2. While registering an instrument of partition, 
whether the registering
authority under the Registration Act, 1908 is bound by the assessment of stamp duty made by the court as per suit valuation, is the question arising for consideration in this case.

3. Petitioner is aggrieved by the order dated 02.09.2010 of the High
Court of Calcutta passed on a petition filed by the petitioner
challenging the order passed by the Civil Judge (Senior Division) at
Siliguri on 22.08.2007. Respondents are parties to a partition suit
filed by the 1st Respondent herein before the Civil Judge (Senior
Division) at Siliguri in T.S. (Partition) No. 70 of 1999. 
The Trial
Court had directed the petitioner, who was not a party before the
court, to complete the registration on the basis of the stamp duty as
per the suit valuation. 
The suit was valued at Rs.50 lakhs for the
purpose of suit valuation. During the pendency of the suit, dispute
was compromised and, accordingly, Annexure P3 - Order dated 30.03.2001
was passed ordering:


"that the suit be and the same is decreed in final form on
compromise in terms of the joint compromise petition dated 15.11.2000
which do form part of the decree. The parties do bear their respective
costs. Parties are directed to file Stamp Papers as would be assessed
by the Sheristadar for engrossing the Final Decree and for
registration of the same. Sheristadar is directed to assess the amount of Stamp Paper over the valuation of the suit property at once.... "
(Emphasis supplied)



4. Subsequently, some clerical corrections were carried out in the order,
on 12.02.2007. When the decree was presented for registration, the
same was objected to by the petitioner observing that there is no
proper valuation for the purpose of registration. 
Aggrieved, the
plaintiff took up the matter before the Civil Judge (Senior Division)
at Siliguri leading to Annexure P6- Order. The learned
Civil Judge (Senior Division) took the view that once the value has
been fixed by the court, Registrar cannot make an attempt to reassess
the same. Aggrieved, the Additional District Sub-Registrar, Siliguri,
approached the High Court. Placing reliance on its earlier decision on
Nitya Hari Kundu and others vs. State of W.B. and others[1], the High
Court dismissed the petition and, hence, the Special Leave Petition.



5. In order to analyse disputes in proper perspective, it is necessary to
refer to the statutory provisions governing the issue.
 Indian Stamp
Act, 1899, as amended by the West Bengal, has defined 'market value'
at Section 2 (16B), which reads as follows:


"(16B)"market value" means, in relation to any property which is the
subject-matter of an instrument, the price which such property would
have fetched or would fetch if sold in open market on the date of
execution of such instrument as determined in such manner and by such
authority as may be prescribed by rules made under this Act or the
consideration stated in the instrument, whichever is higher;"
(Emphasis supplied)




6. Section 2(12) of Indian Stamp Act, 1899, as amended by the West
Bengal, has also defined 'execution' with reference to an instrument
to mean "signed" and "signature".

7. Section 47A of Indian Stamp Act, 1899, as amended by the West Bengal,
provided for the procedure for dealing with undervaluation. To the
extent relevant, the provision reads as follows: -

"47A. Instruments of conveyance, etc., under-valued, how to be
dealt with.- 
(1) Where the registering officer appointed under the
Registration Act, 1908 (16 of 1908), has, while registering any
instrument of-


(a) agreement or memorandum of any agreement relating to a sale or
lease-cum-sale of immovable property,


(b) conveyance,


(c) exchange of property,


(d) gift,


(e) partition,


(f) power-of-attorney-


(i) when given for consideration to sell any immovable property,
or


(ii) in such other cases referred to in article 48 of Schedule
IA,


where proper stamp duty is payable on the basis of market value,


(g) settlement,


(h) transfer of lease by way of assignment,


reason to believe that the market value of the property which is the
subject-matter of any such instrument has not been truly set forth in
the instrument presented for registration, he may, after receiving
such instrument, ascertain the market value of the property which is
the subject-matter of such instrument in the manner prescribed and
compute the proper stamp duty chargeable on the market value so
ascertained and thereafter he shall, notwithstanding anything to the
contrary contained in the Registration Act, 1908, in so far as it
relates to registration, keep registration of such instrument in
abeyance till the condition referred to in sub-section (2) or sub-
section (7), as the case may be, is fulfilled by the concerned person.


(2) Where the market value of the property which is the subject-matter
of an instrument has been ascertained and the proper duty chargeable
thereon has been computed under sub-section (1), the registering
officer shall, in the manner prescribed, send to the concerned person
a notice calling upon him to make payment of the deficit amount of
stamp duty within such time as may be prescribed, and if such person
makes payment of such deficit amount of stamp duty in the prescribed
manner, the registering officer shall register the instrument.


(3) Where the concerned person does not make payment of the stamp duty
as required under sub-section (2) within the time specified in the
notice issued under that sub-section, the registering authority shall
refer the matter to such authority and in such manner as may be
prescribed for determination of the market value of the property which
is the subject-matter of such instrument and the proper stamp duty
payable thereon:


(4) to (7) xxx xxx xxx xxx xxx xxx xxx




(8) (a) The authority referred to in sub-section (3) may, on receipt
of any information or otherwise, suo motu within five years from the
date of registration of any instrument, where such instrument was
registered on the basis of the market value which was set forth in the
instrument or which was ascertained by the registering officer
referred to in sub-section (1), call for and examine any such
instrument and any other document relating thereto for the purpose of
satisfying himself as to the correctness of the market value of the
property which is the subject-matter of such instrument and which was
set forth in the instrument or which was ascertained under sub-section
(2) and the stamp duty payable thereon.

(b) If, after such examination, the authority referred to in
clause (a) has reasons to believe that the market value of the
property which is the subject-matter of such instrument has not been
truly set forth in the instrument or correctly ascertained under sub-
section (2), he may, after giving the parties concerned in the
instrument a reasonable opportunity of being heard, determine the
market value of the property which is the subject-matter of such
instrument and the amount of stamp duty chargeable thereon in the
manner referred to in sub-section (5), and the difference in the
amount of stamp duty, if any, between the stamp duty so determined by
him and the stamp duty already paid by the concerned person shall be
required to be paid by him in the prescribed manner :"
(Emphasis supplied)





8. Rule 3 of The West Bengal Stamp (Prevention of Undervaluation of
Instruments) Rules, 2001 has provided for the procedure to be adopted
when there is undervaluation. To the extent relevant, the procedure
reads as follows:


3. Manner of determination of market value and furnishing of
particulars relating to any property.- (1) The market value within the
meaning of clause [16(B)] of section 2 in relation to any land or any
land with building shall, after taking into consideration the
particulars referred to in sub-rule (2), be determined on the basis of
the highest price for which sale of any land or any land with
building, of similar nature and area and in the same locality or in a
comparable locality, has been negotiated and settled during the five
consecutive years immediately proceeding the date of execution of any
instrument setting forth such market value, or on the basis of any
court decision after hearing the State Government, or on the basis of
information, report or record that may be available from any court or
any officer or authority of the Central Government or the State
Government or any local authority or local body, or on the basis of
consideration stated in such instrument for such land or land with
building, whichever is greater."
(Emphasis supplied)



9. The scheme for valuation for the purpose of registration would show
that an instrument has to be valued in terms of the market value at
the time of execution of the document. In the instant case, it appears
that there was no such valuation in the Civil
Court. The learned Civil Judge, as per annexure P3-
Order dated 30.03.2001, directed the Sheristadar to asses the amount
of stamp paper for the valuation of the suit property. The suit was
instituted in the year 1999. The same was compromised in the year
2001. The plaintiff filed stamp papers as per valuation of the
Sheristadar in the suit on 03.08.2004 and the decree was presented for
registration before the Additional Registrar on 23.05.2007. In view of
the objection raised with regard to the assessment of market value for
the purpose of registration, the plaintiff sought for clarification
leading to annexure P6-Order.

10. The High Court has placed reliance on a single bench decision in Nitya
Hari Kundu's case (supra). It was a case where the court permitted an
item of a trust property to be sold after fixing the market value.
When the Registrar refused to accept the valuation made by the court,
a writ petition was filed in the High Court where it was conceded by
the Registrar that:

"14. ...it is correct to say that a Court decision permitting a trust
estate to sell a trust property for a particular consideration, must
necessarily be accepted as a determination of the market value of the
property in the stamp rules."



11. However, the High Court also considered the matter on merits and
finally held in paragraph 13, which reads as follows: -




"13. Therefore, in interpreting the statutes if I make harmonious
construction of S. 47A read with the Rules made thereunder, it will be
read that valuation made by the Court cannot be said to be done not
truly set forth and there is any reason to disbelieve, otherwise. If
any authority does so it will tantamount to exceeding the jurisdiction
made under the law. The authority concerned cannot sit on appeal over
a Court decision unless appeal is preferred from such order which is
absent herein."




12. It appears that the learned Civil Judge and the High Court only
referred to the headnote in Nitya Hari Kundu's case
(supra), which reads as follows:




"Stamp Act (2 of 1899), S.47-A-Valuation of duty under S.47-A-
Valuation made by Court and sale deed sent for Registration S.47A is
not applicable- After determination of value by Court, it cannot be
said that there is reason for Registrar to believe that valuation is
not correctly made - Registrar is bound by that valuation and has to
act upon it."




13. The court had, in fact, fixed the market value of the property in that
case for permitting the Trust estate to put it to sale. However,
without reference to the court, it appears that the Collector made an
independent assessment and that was what was struck down by the court.
Once the court had made the exercise to fix the market value of a
property, the same can be reopened or altered only in a process known
to law. 

That is not the situation in the instant case where a
partition suit was filed in the year 1999, compromised in the year
2001, stamp value assessed on the basis of suit valuation and the
decree presented for registration in the year 2007.




14. Market value for the purpose of Indian Stamp Act, 1899 is not the same
as suit valuation for the purpose of jurisdiction and court fee. 
The
procedures are different for assessment of the stamp duty and for
registration of an instrument. The reference to the expression 'on the
basis of any court decision after hearing the State Government'
appearing in Rule 3 of The West Bengal Stamp (Prevention of
Undervaluation of Instruments) Rules, 2001, would clearly show that
the suit valuation cannot be automatically followed for the purpose of
registration. The learned Civil Judge has, thus, clearly erred in
directing the registration to be done on the basis of suit valuation.

The Sheristadar made a mechanical assessment of stamp duty on 1/4th
share of the suit property as per the compromise and fixed the stamp
duty accordingly for Rs.12,50,000/-. That does not meet the
requirement under law.


15. The Suits Valuation Act, 1887 and The Indian Stamp Act, 1899 operate
in different fields. 

However, going by the scheme of the Act and Rules
as amended by West Bengal, we are of the view that it will only be
appropriate that in such situations
where the registering authority
has any difference of opinion as to assessment on the stamp duty of the instrument presented for registration on the orders of the court,

it will only be appropriate that Registrar makes a back reference to
the court concerned and the court undertakes a fresh exercise after
affording an opportunity of hearing to the registering authority with
regard to the proper value of the instrument for registration. 

The
registering authority cannot be compelled to follow invariably the
value fixed by the court for the purpose of suit valuation.


16. Accordingly, we set aside the impugned order dated 02.09.2010 of the
High Court of Calcutta and order dated 30.03.2001 of the learned Civil
Judge, Siliguri and order dated 27.08.2007 of Civil Judge (Senior
Division), Siliguri. 

The court of the learned Civil Judge (Senior
Division), Siliguri shall consider afresh the matter after affording
an opportunity for hearing to the petitioner and pass appropriate
orders with regard to the stamp duty for the purpose of registration of the partition deed. 

This exercise should be completed within a
period of three months from the date of receipt of this order. Appeal
is allowed.


17. There is no order as to costs.


.................................J.
(G.S. SINGHVI)



.................................J.
(KURIAN JOSEPH)
New Delhi;
May 1, 2013.
ITEM NO.1B COURT NO.4 SECTION XVI
[FOR JUDGMENT]

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).22263/2011

(From the judgement and order dated 02/09/2010 in CO No.689/2008 of The
HIGH COURT OF CALCUTTA)

ADDL. DISTT. SUB-REGISTRAR SILIGURI Petitioner(s)

VERSUS

PAWAN KUMAR VERMA & ORS. Respondent(s)


Date: 01/05/2013 This Petition was called on for
judgment today.


For Petitioner(s) Mr. Joydeep Mazumdar, Adv.
Mr. Avijit Bhattacharjee,Adv.

For Respondent(s)
Mr. V.N. Raghupathy,Adv.

Hon'ble Mr. Justice Kurian Joseph pronounced the judgment
of the Bench comprising Hon'ble Mr. Justice G.S. Singhvi and His
Lordship.
Leave granted.


Appeal is allowed in terms of the reportable judgment.

|(Rajesh Dham) | | (Renu Diwan) |
|Court Master | |Court Master |


(signed reportable judgment is placed on the file)



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[1] AIR 2001 Calcutta 76

-----------------------
REPORTABLE


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12






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