under Sections 147, 148, 149, 364, 307, 302 IPC= “But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations.”= the prosecution has succeeded in proving the place of occurrence, the time of occurrence as well as the manner of assault made on injured persons who are all examined by the Court and their evidence fully corroborates the prosecution case. We notice, in this case, that there is sufficient evidence to show that the incident had happened on 5.7.1983, as projected by the prosecution. The prosecution has successfully proved that it was the appellants and others who had committed the crime, so found by the trial Court as well as the High Court. Large number of persons were involved in the incident that occurred on 5.7.1983. Several injuries were caused by the appellants on the vital parts of the deceased and the injured persons, with dangerous weapons and the injuries are sufficient, as certified by the doctor, in the ordinary course of nature to cause death and the accused persons intended to inflict the injuries that were found on the person of the deceased and injured persons. Appellants caused the injuries with deadly weapons, therefore, intention can be presumed regarding causing injuries as are likely to cause death, which falls under Section 304 Part I IPC and hence the conviction ordered by the trial court under Section 302 IPC is converted to Section 304 Part I IPC.

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1421 OF 2007
Md. Ishaque and Others .. Appellants
Versus
State of West Bengal and Others ..Respondents
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. This appeal arises out of a common judgment and order
dated 14.8.2006 passed by the High Court of Calcutta in CRA
No. 425 of 2001and CRA No. 463 of 2001, whereby the High
Court confirmed the conviction and sentence awarded to the
appellants.
2. The prosecution version is that on 5.7.1983 at about 5 AM
to 5.30 AM, some 200-250 villagers, which included the accused
persons as well, armed with various weapons like Lathi, Ladna,
Farsa, Hasua and Ballam surrounded the village Siktahar. ThePage 2
2
accused persons forced out a number of persons from their
houses, assaulted them in various ways and ultimately took four
of them in tie-bound condition to a place called Hijul Pakur Field
which is some distance away from village Siktahar and they
assaulted them with various weapons causing serious injuries.
The injured persons were admitted to Ratua Public Health
Centre and later, shifted to Malda Sadar Hospital. One of the
injured, namely Azad Ali, succumbed to his injuries. The
remaining injured persons, viz. the informant - Md. Yasin PW1,
Hasan Ali PW4 and Farjan Ali PW2 sustained serious injuries.
During the course of occurrence, accused persons also
assaulted Mohammed Badaruddin PW3, Mohamed Sabiruddin
PW5 and Mohammed Kalimuddin PW6. However, those
persons could escape from the clutches of the accused persons
and flee from the place of assault.
3. Md. Yasin PW1 lodged the FIR on 8.7.1983, which was
recorded by N. N. Acherjee, S.I., C.I.D. and forwarded to Ratuna
P.S. and a case was registered being Crime No. 9 dated
5.7.1983 under Sections 147, 148, 149, 364, 307, 302 IPC at
Ratuna P.S. and the investigation was taken up by the police.
Later, investigation was handed over to the C.I.D. and, afterPage 3
3
completion of the investigation, police submitted the chargesheet against 31 accused persons. (Of the charge-sheeted
persons, accused Ajahar Moral and Tabjul died during the
course of trial and the accused No. 25 died during the pendency
of the appeal before the High Court). Two other charge-sheeted
persons, namely, Hafijuddina and Safijuddin, were not sent up
and discharged by S.D.J.M. vide his order dated 9.12.1993.
Vide order dated 27.8.1983, the S.D.J.M. committed the case to
the Court of Sessions.
4. Charges were framed against 28 accused persons on
10.4.1995, which were read over and explained to accused
persons, to which they pleaded not guilty and claimed to be
tried. The prosecution examined 20 witnesses and produced
various documents. On defence side, one witness was
examined and also produced few documents. The defence
took up the stand that the entire incident was stated to have
taken place at Malo Para on 4.7.1983 and no occurrence, as
alleged, took place either at village Siktahar or at Hajul Pakur
Field on 5.7.1983. Further, it was stated that the case was
falsely foisted due to political rivalry between two groups.Page 4
4
Accused persons belong to the Congress party and the
deceased and injured persons belong to CPM.
5. The trial Court, after considering the oral and documentary
evidence, found that the prosecution has succeeded in proving
the case and convicted 27 accused persons (out of 28 accused
persons) and one Abdul Taub found not guilty and was
acquitted.
6. Three appeals were filed against the order of conviction
passed by the trial Court. CRA No. 425 of 2001 was filed by
Md. Ishaque and another, CRA 463 of 2001 filed by Hefjur
Rahaman and 24 others and CRA N. 700 of 2006 was filed by
Jinnatual Haque, son of deceased, appellant no. 22, Md. Nurul
Islam under Section 394 CrPC. The High Court took the view
that the trial Court has rightly convicted all the accused
persons, except appellants Yasin, Daud Hazi, Mannan, Islam
Maulavi and Alauddin. CRA 425 of 2002 and CRA 463 of
2001were, therefore, allowed in part. Since Islam Maulavi was
acquitted, CRA 700 of 2006 was also allowed.
7. Aggrieved by the same, 21 accused persons have
preferred the present appeal. This Court granted bail to 14Page 5
5
appellants vide its orders dated 19.8.2009 and 27.1.2012.
While the appeal was pending, appellants Haji Md. Belal Hossain
and Aaiyab Ali died.
8. Shri Pradip Ghosh, learned senior counsel appearing for
the appellants, submitted that the prosecution has failed to
establish the case beyond reasonable doubt and the appellants
deserve acquittal. Learned senior counsel pointed out that the
accused persons were falsely implicated due to political rivalry
and the case was framed as a counter-blast to the incident that
took place on 4.7.1983, a day earlier, wherein 13 persons from
the village of the accused persons were brutally murdered.
Learned senior counsel submitted that, on cross-examination of
the material witnesses namely PW1 to PW6, with reference to
the statement of the investigating officer, it would appear that
there were serious omissions and contradictions in their
statements, hence, the prosecution story cannot be believed.
The prosecution had also failed to establish the place of
occurrence, time of the alleged assault and the manner of the
alleged assault and there was no corroborative medical
evidence to support the various injuries alleged to have been
sustained by few of the witnesses. Further, it was pointed outPage 6
6
that the doctor who conducted the post-mortem, was not
examined. Learned senior counsel also submitted that the High
Court has rightly acquitted few of the accused persons and the
reasoning adopted by the High Court equally applies in the case
of the appellants as well.
9. Shri Bijan Ghosh, learned counsel appearing for the State,
on the other hand, submitted that the High Court, after
examining the evidence of the eye witnesses and other
corroborative evidence, has rightly come to the conclusion that
the appellants are guilty and deserve the sentence awarded by
the trial Court. Learned counsel submitted that there is nothing
on record, wherefrom, it can be gathered that the place of
occurrence was not the village Siktahar and, thereafter, at Hijul
Pakur Field, where the injured persons and the deceased were
assaulted. Learned counsel submitted that the prosecution has
succeeded in proving the place of occurrence, the time of
occurrence and also the assault on injured persons and the
cause of death of the deceased Azad Ali.
10. We heard the parties at length and have also gone
through the evidence, especially the evidence of PW1 to PW6Page 7
7
and also minutely and meticulously examined the entire gamut
of the prosecution case. PW1, in his statement, has
categorically stated that the incident had occurred on 5.7.1983
at Siktahar and that his evidence finds full support from the
evidence adduced by the Investigating Officer PW20. Facts
indicate that an incident had taken place on 4.7.1983 at village
Malopara coming under the same P.S. Ratua, which resulted in
the death of 13 persons and due to that occurrence, there was
an atmosphere of terror over the surrounding villages and also
as a sequel of that massacre of Malopara, Siktahar village was
attacked. PWs1 and 6 were directly affected by the incident
that had occurred at Siktahar, in which the involvement of the
appellants was clearly established. PWs 1 to 6, particularly PW1
to PW4, who had deposed, narrating both the occurrences of
Siktahar and Hizul Pakur Field, was subjected to lengthy crossexamination, but nothing significant was brought out to
discredit their evidence. Further, there is nothing in the
statement of PW18 to indicate that he found the injured persons
of this case at Malopara village, on the contrary, if the
statement of PWs 18 and 19 are considered together, it would
indicate that the injured persons were found at a field, but notPage 8
8
certainly at Malopara. Injured persons, including the deceased
Azad Ali, were treated at Ratua Primary Health Centre and,
subsequently, at Malda Sadar Hospital. PW14 to 16 attended
those injured persons and from the reports prepared by the
doctors, it would be clear that on 5.7.1983 all the persons,
including the deceased Azad Ali, who were injured, were treated
at Ratua Primary Health Centre and thereafter at Malda Sadar
Hospital. Ex.14, the post-mortem report of the deceased
indicates that the deceased suffered homicidal death and the
injuries sustained by him were all ante-mortem in nature and
that was the result of assault by several persons with sharp
cutting weapons as well as the blunt weapons like Lathi.
11. We also fully endorse the view of the High Court that the
mere fact that some of the witnesses are interested witnesses,
that by itself is not a ground to discard their evidence, the
evidence taken as a whole supports the case of the prosecution.
In Hari Obula Reddy and Ors. v. The State of Andhra
Pradesh (1981) 3 SCC 675, this Court laid down certain broad
guidelines to be borne in mind, while scrutinising the evidence
of the eye-witnesses, in para 13 of the judgement, this Court
held as follows:Page 9
9
“But it is well settled that interested evidence is
not necessarily unreliable evidence.
 Even
partisanship by itself is not a valid ground for
discrediting or rejecting sworn testimony. 
Nor can
it be laid down as an invariable rule that
interested evidence can never form the basis of
conviction unless corroborated to a material
extent in material particulars by independent
evidence. 
All that is necessary is that the
evidence of interested witnesses should be
subjected to careful scrutiny and accepted with
caution. 
If on such scrutiny, the interested
testimony is found to be intrinsically reliable or
inherently probable, it may, by itself, be sufficient,
in the circumstances of the particular case, to
base a conviction thereon. 
Although in the matter
of appreciation of evidence, no hard and fast rule
can be laid down, yet, in most cases, in evaluating
the evidence of an interested or even a partisan
witness, it is useful as a first step to focus
attention on the question, whether the presence
of the witness at the scene of the crime at the
material time was probable.
 If so, whether the
substratum of the story narrated by the witness,
being consistent with the other evidence on
record, the natural course of human events, the
surrounding circumstances and inherent
probabilities of the case, is such which will carry
conviction with a prudent person. 
If the answer to
these questions be in the affirmative, and the
evidence of the witness appears to the court to be
almost flawless, and free from suspicion, it may
accept it, without seeking corroboration from any
other source. 
Since perfection in this imperfect
world is seldom to be found, and the evidence of a
witness, more so of an interested witness, is
generally fringed with embellishment and
exaggerations, however true in the main, the
court may look for some assurance, the nature
and extent of which will vary according to the
circumstances of the particular case, from
Page 10
10
independent evidence, circumstantial or direct,
before finding the accused guilty on the basis of
his interested testimony. 
We may again
emphasise that these are only broad guidelines
which may often be useful in assessing interested
testimony, and are not iron-cased rules uniformly
applicable in all situations.”
12. PW1, PW2, PW4 in case sustained serious injuries, their
evidence was believed by the court. It is trite law that the
testimony of injured witnesses entitled to great weight and it is
unlikely that they would spare the real culprit and implicate an
innocent person. Of course, there is no immutable rule of
appreciation of evidence that the evidence of injured witnesses
should be mechanically accepted, it also be in consonance with
probabilities (Refs: Makan Jivan and Ors. v. The State of
Gujarat (1971) 3 SCC 297; Machhi Singh and Ors. v. State
of Punjab (1983) 3 SCC 470; Jangir Singh and Chet Singh
and Ors. v. State of Punjab (2000) 10 SCC 261.
13. In this respect, reference may be made to the judgment of
this Court in Jaishree v. State of U.P. (2005) 9 SCC 788,
wherein this Court held that whether witnesses are interested
persons and whether they had deposed out of some motive
cannot be the sole criterion for judging credibility of a witness,Page 11
11
but the main criterion would be whether their physical presence
at the place of occurrence was possible and probable.
14. We are of the view that 
the prosecution has succeeded in
proving the place of occurrence, the time of occurrence as well
as the manner of assault made on injured persons who are all
examined by the Court and their evidence fully corroborates the
prosecution case. 
We notice, in this case, that there is
sufficient evidence to show that the incident had happened on
5.7.1983, as projected by the prosecution. 
The prosecution has
successfully proved that it was the appellants and others who
had committed the crime, so found by the trial Court as well as
the High Court.
15. Large number of persons were involved in the incident that
occurred on 5.7.1983. 
Several injuries were caused by the
appellants on the vital parts of the deceased and the injured
persons, with dangerous weapons and the injuries are sufficient,
as certified by the doctor, in the ordinary course of nature to
cause death and the accused persons intended to inflict the
injuries that were found on the person of the deceased and
injured persons. 
Appellants caused the injuries with deadly
Page 12
12
weapons, therefore, intention can be presumed regarding
causing injuries as are likely to cause death, which falls under
Section 304 Part I IPC and 
hence the conviction ordered by the
trial court under Section 302 IPC is converted to Section 304
Part I IPC.
16. Consequently, the appellants are found guilty under
Section 304 Part I IPC and are sentenced to undergo rigorous
imprisonment of 10 years with a fine of Rs.5,000/-each. On
default of payment of fine, they will undergo rigorous
imprisonment for another six months. 50% of the money
recovered as fine has to be paid to the wife of the deceased as
compensation. We further order that if any of the appellants
had already undergone sentence of 10 years, they would be let
free, on payment of fine and the remaining accused appellants
would serve the balance period of sentence and bail granted to
them would, therefore, stand cancelled and they will surrender
within a week. Appeal is disposed of accordingly. 
 …………………………..J.
(K.S. Radhakrishnan)Page 13
13
…………………………..J.
(Dipak Misra)
New Delhi,
May 3, 2013

benefit of Karnataka Act 23 of 1994- In our considered view, the trial court and the learned Single Judge were clearly in error when they held that the appellant was not entitled to the benefit of Karnataka Act 23 of 1994 because she had not filed an application for enforcing the right accruing to her under Section 6-A during the pendency of the first and the second appeals or that she had not challenged the preliminary decree by joining Defendants 1, 4 and 5 in filing the second appeal.- as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before the conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the court seized with the final decree proceedings is not only entitled but is duty-bound to take notice of such change and pass appropriate order. 17. In this case, the Act was amended by the State Legislature and Sections 6-A to 6-C were inserted for achieving the goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of Karnataka Act 23 of 1994, Section 6-A came into force on 30-7-1994 i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practised against the unmarried daughter had been removed by the legislative intervention and there is no reason why the court should hesitate in giving effect to an amendment made by the State Legislature in exercise of the power vested in it under Article 15(3) of the Constitution." In view of the aforesaid judgment, there is no escape from the conclusion that the special leave petitions are meritless and are liable to be dismissed as such. Ordered accordingly.

' 
ITEM NO.4 COURT NO.3 SECTION IVA

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)....../2013
CC 9253-9255/2013

(From the judgement and order dated 11/01/2010 in RFA No.935/2003,RFA
No.1012/2003 dated 06/01/2012 in RP No.2516/2011, of The HIGH COURT OF
KARNATAKA AT GULBARGA)

MAHESH & ORS. Petitioner(s)

VERSUS

SIDRAM (D) TR.LRS.& ORS. Respondent(s)

(With appln(s) for c/delay in filing SLP,c/delay in refiling SLP and office
report ))


Date: 01/05/2013 These Petitions were called on for hearing today.


CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MRS. JUSTICE RANJANA PRAKASH DESAI



For Petitioner(s) Mr. P.Vishwanatha Shetty, Sr. Adv.
Mr. Sharan Thakur, Adv.
Mr. V. Lakshim Naryana, Adv.
Mr. Ramesh Babu M.R.,AOR

For Respondent(s)

UPON hearing counsel the Court made the following
O R D E R


Delay condoned.
In one of these petitions, the petitioners have questioned
correctness of judgment dated 11.1.2010 passed by the Division Bench
of the Karnataka High Court in RFA Nos.935/2003 and 1012/2003. In the
other petition, the petitioners have challenged order dated 6.1.2012
passed by the Division Bench of the High Court in Review Petition
No.2516/2011.
The suit filed by the petitioners for partition and
separate possession was partly decreed by the trial Court vide
judgment dated 19.11.2002, the operative portion of which reads as
under:
" Suit of the plaintiffs No.1 to 3 is decreed partly.


Plaintiffs 1 to 3 together entitled for partition and separate
possession of 1/2 share in plaint para 7A and plaint Schedule B
Properties.


Defendant No. 2 is entitled of 3/16 share in plaint Para 7A and
Schedule B Properties.


Defendant No. 3 is entitled for 1/16 share in those properties.


Defendant No. 4 and 5 are each entitled for 1/8 share in those
properties (Para 7A and Schedule B of the Plaint)."


The regular first appeals filed by the parties were
disposed of by the Division Bench of the High Court in the following
terms:
"(b) The finding of the trial court that Schedule "A" and "B"
properties are joint family properties, in which, the
plaintiff are entitled to a share is affirmed.


(c) Plaintiff "C" schedule property is declared as the
joint family property, in which, the plaintiffs are
entitled to share.

(d) The decree of the trial court in respect of "D"
schedule properties is upheld and the plaintiffs are not entitled to a
share.

(e) In substitution of the shares allotted by the trial
court, it is held that the plaintiffs together and defendants 4 and 5
each one of them are entitled to 1/3rd in the remaining schedule
properties.

(f) Parties to work out their respective share in the final
decree proceedings including mesne profits from the date of the
suit."




The review petition filed by the petitioners in RFA
No.1012/2003 was dismissed by the Division Bench of the High Court by
observing that the amendment made in the Hindu Succession Act, 1956 by
Karnataka Legislature was retrospective and the daughters who were
married prior to the amendment were entitled to share in the property
of their father.
We have heard Shri P. Vishwanatha Shetty, learned senior
counsel appearing for the petitioners and perused the record.
The question whether the Karnataka Amendment in the Hindu
Succession Act is retrospective is no longer res integra and must be
treated as settled by the judgment of this Court in Prema v. Nanje
Gowda and others (2011) 6 SCC 462. After noticing the relevant
provisions of the Hindu Succession Act and the amendments made by the
State Legislature, this Court observed:

"15. In the present case, the preliminary decree was passed on
11-8-1992. The first appeal was dismissed on 20-3-1998 and the
second appeal was dismissed on 1-10-1999 as barred by
limitation. By the preliminary decree, shares of the parties
were determined but the actual partition/division had not taken
place. Therefore, the proceedings of the suit instituted by
Respondent 1 cannot be treated to have become final so far as
the actual partition of the joint family properties is concerned
and in view of the law laid down in Phoolchand v. Gopal Lal AIR
1967 SC 1470 and S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC
647, it was open to the appellant to claim enhancement of her
share in the joint family properties because she had not married
till the enforcement of Karnataka Act 23 of 1994. Section 6-A of
Karnataka Act 23 of 1994 is identical to Section 29-A of the
Andhra Pradesh Act. Therefore, there is no reason why ratio of
the judgment in S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC
647 should not be applied for deciding the appellant's claim for
grant of share on a par with male members of the joint family.
In our considered view, the trial court and the learned Single
Judge were clearly in error when they held that the appellant
was not entitled to the benefit of Karnataka Act 23 of 1994
because she had not filed an application for enforcing the right
accruing to her under Section 6-A during the pendency of the
first and the second appeals or that she had not challenged the
preliminary decree by joining Defendants 1, 4 and 5 in filing
the second appeal.


16. We may add that by virtue of the preliminary decree passed
by the trial court, which was confirmed by the lower appellate
court and the High Court, the issues decided therein will be
deemed to have become final 
but as the partition suit is
required to be decided in stages, the same can be regarded as
fully and completely decided only when the final decree is
passed. 
If in the interregnum any party to the partition suit
dies, then his/her share is required to be allotted to the
surviving parties and this can be done in the final decree
proceedings. 
Likewise, if law governing the parties is amended
before the conclusion of the final decree proceedings, the party
benefited by such amendment can make a request to the court to
take cognizance of the amendment and give effect to the same.
 If
the rights of the parties to the suit change due to other
reasons, the court seized with the final decree proceedings is
not only entitled but is duty-bound to take notice of such
change and pass appropriate order.


17. In this case, the Act was amended by the State Legislature
and Sections 6-A to 6-C were inserted for achieving the goal of
equality set out in the Preamble of the Constitution. 
In terms
of Section 2 of Karnataka Act 23 of 1994, Section 6-A came into
force on 30-7-1994 i.e. the date on which the amendment was
published. 
As on that day, the final decree proceedings were
pending. 
Therefore, the appellant had every right to seek
enlargement of her share by pointing out that the discrimination
practised against the unmarried daughter had been removed by the
legislative intervention and there is no reason why the court
should hesitate in giving effect to an amendment made by the
State Legislature in exercise of the power vested in it under
Article 15(3) of the Constitution."


In view of the aforesaid judgment, there is no escape from
the conclusion that the special leave petitions are meritless and are
liable to be dismissed as such. Ordered accordingly.




|(Parveen Kr.Chawla) | |(Phoolan Wati Arora) |
|Court Master | |Court Master |
| | | |

The subject premises are said to be residential premises. One of the essential conditions to be tenant after the tenant's death in the case of residential building is that such person must be heir of the deceased tenant. = The parties are admittedly governed by Hindu law. The applicant's father, who is respondent No. 2, is alive. In other words, the deceased tenant is survived by his son - Jitendra Kumar Gupta (respondent No. 2). Since the applicant (respondent No. 1) is not a son of pre-deceased son, he is not a heir of his deceased grand-father under Section 8 read with the Schedule of the Hindu Succession Act. The High Court clearly erred in not taking into consideration the first requirement of the definition of 'tenant' whether or not the applicant was the heir of the deceased tenant. As noted above, the applicant is not a heir of deceased tenant and, therefore, he cannot be held to be a joint tenant along with respondent No. 2 in the subject premises. 8. Appeal is allowed accordingly. The impugned order of the High Court dated May 11, 2011 is set aside and the order dated March 9, 2011 passed by the prescribed authority is restored. 9. The prescribed authority is requested to decide the eviction proceedings as expeditiously as may be possible. 10. No costs.

' 

IN THE SUPREME COURT OF INDIA


CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO. 3956 OF 2013
(arising out of S.L.P. (Civil) No. 20826 of 2011)


SURAJ PRAKASH GULATI & ANR. Appellant(s)


VERSUS


PANKAJ GUPTA & ANR. Respondent(s)


O R D E R


Leave granted.


2. Respondent No. 1 - Pankaj Gupta - made an application in
the eviction proceedings for his impleadment on the ground that his
grand-father late Kanshi Nath Gupta was a tenant in the premises and
after the death of his grand-father he has become joint tenant along
with his father - Jitendra Kumar Gupta (respondent No. 2). The
prescribed authority vide order dated March 9, 2011 rejected the
application made by Pankaj Gupta holding that he was not heir of his
grand father (deceased tenant) as his father Jitendra Kumar Gupta
(respondent No. 2 herein) was alive.
3. Aggrieved by the order of the prescribed authority,
respondent No. 1 filed a Writ Petition before the High Court. The
High Court by the impugned order has allowed the Writ Petition, set
aside the order of the prescribed authority and allowed the
application made by respondent No. 1 for his impleadment in the
eviction proceedings.
4. The High Court in the impugned order has observed that the
applicant (respondent No. 1 herein) has taken a positive stand that he
has been living and occupying in the subject accommodation since the
lifetime of the original tenant - his grand father late Kanshi Nath
Gupta - and as such he is a joint tenant.
5. The reasoning of the High Court is fallacious and
inconsistent with the provisions of Section 3 of the Uttar Pradesh
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972
(for short, '1972 Act') and Section 8 read with the Schedule of the
Hindu Succession Act, 1956 (for short, 'Hindu Succession Act').
6. 'Tenant' for the purposes of the 1972 is defined in Section
3 as follows :-
"Section 3(a) "tenant", in relation to a building, means a
person by whom its rent is payable, and on the tenant's death-
(1) in the case of a residential building, such only of
his heirs as normally resided with him in the building at the
time of his death;
(2) in the case of a non-residential building, his heirs;"






7. The subject premises are said to be residential premises.


One of the essential conditions to be tenant after the tenant's death
in the case of residential building is that such person must be heir
of the deceased tenant. 
The parties are admittedly governed by Hindu
law. 
The applicant's father, who is respondent No. 2, is alive. 
In
other words, the deceased tenant is survived by his son - Jitendra
Kumar Gupta (respondent No. 2). 
Since the applicant (respondent No. 1)
is not a son of pre-deceased son, he is not a heir of his deceased
grand-father under Section 8 read with the Schedule of the Hindu
Succession Act. 
The High Court clearly erred in not taking into
consideration the first requirement of the definition of 'tenant'
whether or not the applicant was the heir of the deceased tenant. 
As
noted above, the applicant is not a heir of deceased tenant and,
therefore, he cannot be held to be a joint tenant along with
respondent No. 2 in the subject premises.
8. Appeal is allowed accordingly. The impugned order of the
High Court dated May 11, 2011 is set aside and the order dated March
9, 2011 passed by the prescribed authority is restored.


9. The prescribed authority is requested to decide the
eviction proceedings as expeditiously as may be possible.
10. No costs.






..........................J.
( R.M. LODHA )






NEW DELHI ..........................J.
APRIL 22, 2013 ( KURIAN JOSEPH )

ITEM NO.203 COURT NO.4 SECTION X

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).20826/2011

(From the judgement and order dated 11/05/2011 in WP No.491/2011 of
The HIGH COURT OF UTTARAKHAND AT NAINITAL)

SURAJ PRAKASH GULATI & ANR. Petitioner(s)

VERSUS

PANKAJ GUPTA & ANR. Respondent(s)

(With appln(s) for permission to file additional documents and
with prayer for interim relief and office report ))

[FOR FINAL DISPOSAL]

Date: 22/04/2013 This Petition was called on for hearing today.

CORAM :
HON'BLE MR. JUSTICE R.M. LODHA
HON'BLE MR JUSTICE KURIAN JOSEPH

For Petitioner(s) Mr. Rajiv K. Garg, Adv.
Mr. Ashish Garg, Adv.
Mr. Annam D.N. Rao,Adv.

For Respondent(s) Mr. Atul Kumar, Adv.
Ms. Sweety Singh, Adv.
Mr. Mohan Pandey,Adv.

UPON hearing counsel the Court made the following
O R D E R

Leave granted.


Appeal is allowed in terms of the signed order.

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


(signed order is placed on the file)

Section 10 (1) of the Industrial Disputes Act, 1947.= The appellant, Sohan Lal, was employed as a regular driver in the Haryana Roadways having been appointed in the said post on 01.04.1993. According to the appellant, while in service, he sustained certain injuries as a result of a road accident. A medical examination of the appellant was conducted by the Civil Surgeon, Yamuna Nagar to determine the fitness of the appellant to continue to be employed as a driver. He was found to be unfit to discharge his duties. Thereafter, a notice dated 03.03.1997 was issued to the appellant by the General Manager of the Haryana Roadways proposing to retire him from service on medical grounds. The appellant submitted his reply on consideration of which, by order dated 27.03.1997, the appellant was retired from service with effect from 31.03.1997 on ground of medical unfitness. 4. The appellant raised an industrial dispute on the issue of his termination/retirement made by the order dated 27.03.1997. Though initially a reference was refused, the matter was eventually referred to the Labour Court for adjudication under Section 10 (1) of the Industrial Disputes Act, 1947.= The applicability of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 to the case of the appellant, as strenuously urged on his behalf, cannot arise in as much as the appellant does not come within the meaning of the expression "person with disability" as defined under Section 2(t) of the Act. = In the medical certificate dated 14.11.1996 issued by the Civil Surgeon, Yamuna Nagar the appellant has been found to be suffering from disability of the right elbow to the extent of 10% only as against the percentage of not less than 40% spelt out by Section 2(t) of the Act. The facts of the present case clearly go to show that the appellant was found to be medically unfit to continue to work as a driver. His case for alternative employment in terms of the Memorandum dated 20.08.1992 was duly considered. No such alternative employment was available. Consequently, additional compensation payable to the appellant in terms of the Memorandum dated 20.08.1992 was calculated and paid. The materials on record would also go to show that the superannuation of the appellant, if he had continued in service, was due on 30.09.2004. Taking into account the totality of the facts of the present case, we are of the view that the award of the learned Labour Court dated 27.02.2004 affirmed by the High Court by its order dated 22.08.2005 will not require any interference by us. Accordingly, we dismiss the appeal and affirm the aforesaid award dated 27.02.2004 of the learned Labour Court and order dated 22.08.2005 passed by the High Court.

' 
NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4169 OF 2013
(Arising out of SLP (Civil) No.612 of 2007)


Sohan Lal ... Appellant(s)
Versus
State of Haryana & Ors. ... Respondent(s)


J U D G M E N T

RANJAN GOGOI, J.

Leave granted.
2. An award dated 27.02.2004 passed by the learned Labour Court, Ambala,
upholding the termination of service of the appellant was challenged before
the High Court of Punjab & Haryana. The High Court having dismissed the
aforesaid challenge the present appeal has been filed.

3. The brief facts that would be relevant for the adjudication of the
present case may be noticed as hereinbelow:

The appellant, Sohan Lal, was employed as a regular driver in the
Haryana Roadways having been appointed in the said post on 01.04.1993.
According to the appellant, while in service, he sustained certain injuries
as a result of a road accident.
 A medical examination of the appellant was
conducted by the Civil Surgeon, Yamuna Nagar to determine the fitness of
the appellant to continue to be employed as a driver. He was found to be
unfit to discharge his duties. 
Thereafter, a notice dated 03.03.1997 was
issued to the appellant by the General Manager of the Haryana Roadways
proposing to retire him from service on medical grounds. The appellant
submitted his reply on consideration of which, by order dated 27.03.1997,
the appellant was retired from service with effect from 31.03.1997 on
ground of medical unfitness.

4. The appellant raised an industrial dispute on the issue of his
termination/retirement made by the order dated 27.03.1997. Though initially
a reference was refused, the matter was eventually referred to the Labour
Court for adjudication under Section 10 (1) of the Industrial Disputes Act,
1947.


5. Both the parties filed their respective written statements before the
learned Labour Court on the basis of which issues with regard to the
validity of the retirement/termination of the workman and his entitlement
to consequential benefits, if any, were framed for trial.



6. Before the learned Labour Court both parties led their respective
evidence on consideration of which the learned Court came to the conclusion
that the claim of the workman was not tenable and answered the reference
accordingly. In doing so, the learned Labour Court specifically took note
of the fact that in the order dated 27.03.1997, it is mentioned that before
dispensing with the services of the workman, attempts were made to find an
alternative job to accommodate him which attempts, however, did not yield
any positive result. The fact that the appellant was paid all retiral
benefits as well as additional compensation calculated at the rate
equivalent to 21 days salary for each year of the balance period of service
left (7 years), in accordance with the decision of this Court in Anand
Bihari & Ors. Vs. Rajasthan State Road Transport Corporation, Jaipur & Anr.
[AIR 1991 Supreme Court 1003] was also taken note of. With regard to the
above, it would be necessary to notice that following the aforesaid
judgment of this Court, an Office Memorandum dated 20.08.1992 was issued by
the Transport Commissioner, Government of Haryana, formulating a 'scheme'
to deal with cases of medical incapacity of a serving incumbent to
discharge his duties. Under the said scheme, in case such incapacity is
attributable to reasons connected with the employment, alternative
employment is required to be provided, failing which, additional
compensation, at the rate prescribed by the said notification for the
balance period of service left, is payable to the concerned employee.

7. Aggrieved by the award dated 27.02.2004 passed by the learned Labour
Court, the appellant filed a writ petition before the High Court. The same
having been dismissed by the High Court by order dated 22.08.2005, the
present appeal has been filed. The order of the High Court dismissing the
writ petition is based on an order of the same date passed in another writ
petition involving identical facts.

8. We have heard learned counsel for the parties.



9. In Anand Bihari (supra), this Court was confronted with the issue of
termination of the services of a large number of drivers in the Rajasthan
State Road Transport Corporation on account of a singular medical
disability, namely, defective/poor eyesight, a disability attributable to
the stringent nature of the duties performed. On consideration of the
totality of the facts of the case before it in Anand Bihari (supra), this
Court directed the Rajasthan State Road Transport Corporation to frame a
'scheme' to deal with such cases. Specifically, it was directed that
before dispensing with the services of an employee on medical grounds
attributable to the service rendered, an attempt must be made to find
alternative employment to accommodate the workman/employee, failing which,
additional compensation is to be paid for the period of service left at
the rates indicated in the order of the Court.

10. Following the judgment of this Court in Anand Bihari (supra), as
already noticed, a 'scheme' engrafting the essential parameters prescribed
by this Court had been brought into force in the State of Haryana by
Memorandum dated 20.08.1992. The said scheme, as applicable to the State
of Haryana, creates an obligation on the employer (Haryana Roadways) to
find suitable alternative employment for an employee proposed to be
discharged on the ground of medical disability if such disability is
attributable to the service rendered. The norms contained in the
aforesaid Memorandum dated 20.08.1992 also obligates the employer to make
alternative employment available upto one year from the date of cessation
of service. If such alternative employment cannot be provided, compensation
at the rate prescribed in the said Memorandum dated 20.08.1992 is required
to be paid to the concerned employee. In the present case, the order dated
27.03.1997 by which the service of the appellant has been dispensed with
recites that no alternative employment was available under the General
Manager of Haryana Roadways commensurate with the qualifications and skills
of the appellant. The appellant could not also be appointed in the
workshop as he did not have any technical qualification. In the said order
it has also been recited that additional compensation, as prescribed by the
Memorandum dated 20.08.1992, has been calculated and is being paid to the
appellant. There is no dispute that such compensation has since been paid.

11. The applicability of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 to the case of the appellant, as strenuously urged on his behalf, cannot arise in as much as the appellant does not come within the meaning of the expression "person with disability" as defined
under Section 2(t) of the Act. 
In the medical certificate dated 14.11.1996
issued by the Civil Surgeon, Yamuna Nagar the appellant has been found to
be suffering from disability of the right elbow to the extent of 10% only
as against the percentage of not less than 40% spelt out by Section 2(t) of
the Act.

12. The facts of the present case clearly go to show that the appellant
was found to be medically unfit to continue to work as a driver. 
His case
for alternative employment in terms of the Memorandum dated 20.08.1992 was
duly considered. 
No such alternative employment was available.
Consequently, additional compensation payable to the appellant in terms of
the Memorandum dated 20.08.1992 was calculated and paid. 
The materials on
record would also go to show that the superannuation of the appellant, if
he had continued in service, was due on 30.09.2004. 
Taking into account the
totality of the facts of the present case, we are of the view that the
award of the learned Labour Court dated 27.02.2004 affirmed by the High
Court by its order dated 22.08.2005 will not require any interference by
us. 
Accordingly, we dismiss the appeal and affirm the aforesaid award dated
27.02.2004 of the learned Labour Court and order dated 22.08.2005 passed by
the High Court.



.................................J.
[P. SATHASIVAM]




.................................J.
[RANJAN GOGOI]
New Delhi,
May 1, 2013.









ITEM NO.1A COURT NO.13 SECTION XV
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS


CIVIL APPEAL NO. 4169 OF 2013
(Arising out of SLP(C) No.612/2007)

SOHAN LAL Petitioner(s)

VERSUS

STATE OF HARYANA & ORS. Respondent(s)


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


For Petitioner(s) Mr. Vineet Dhanda,Adv.
Mr. J.P. Dhanda,Adv.
Mrs. Raj Rani Dhanda,Adv.
Mr. Abhijeet Shah,Adv.

For Respondent(s) Mr. Manjit Singh,AAG,Har.
Mr. Tarjit Singh,Adv.
Mr. Anil Antil,Adv.
For Mr. Kamal Mohan Gupta,Adv.



Hon'ble Mr. Justice Ranjan Gogoi pronounced the judgment
of the Bench comprising of Hon'ble Mr. Justice P. Sathasivam and His
Lordship.
Leave granted.
The appeal is dismissed and the award dated 27.02.2004 of
the learned Labour Court and order dated 22.08.2005 passed by the High
Court are affirmed in terms of the signed judgment.




(A.S. BISHT) (SNEH LATA SHARMA)
COURT MASTER COURT MASTER


(Non-reportable signed judgment is placed on the file)

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 ofregistration. 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)



-----------------------
[1] AIR 2001 Calcutta 76

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


-----------------------
12