By consent, the main writ petition itself is taken up for final disposal.
2. The petitioner has come forward with the present writ petition challenging the proceedings of the second respondent dated 07.08.2008 with a further direction directing the respondents to treat the deed of release executed by his stepmother in his favour and his brother dated 13.11.2007 to be classified as transaction between the family members as per
Article 58 of Schedule-I of Indian Stamp (Tamilnadu Amendment) Act 31 of 2004.
3. The short facts which are necessary for the disposal of the writ petition, are set out here under:-
3.1. The property bearing No.58/A, Block No.109, T.S.No.4816, R.S.No.41 Part, in T.Nagar Village, measuring an extent of 9 Grounds and 964 sq.ft. along with immovable properties at various places in Andhra Pradesh were acquired by the petitioner's grandfather late S.V.Ranga Rao, who died intestate on 18.07.1974 leaving behind his wife Samarla Leelavathi and his only son Koteswara Rao to inherit his properties. During the life time of Samarla Leelavathi, she had executed a Will dated 15.11.1999 in respect of her 5/8th share and she died 25.04.2000. On her death, Koteswara Rao, the father of the petitioner and his children, viz., the petitioner, the other son and daughter acquired their rights in the properties. After the death of the petitioner's mother S.Vijayalakshmi, his father married one Samarla Manjula in the year 1988 and thereafter, the said Koteswara Rao died intestate on 18.07.1989 leaving behind his stepmother Samarla Manjula and his two sons viz., the petitioner and one S.V.Ranga Rao and daughter Adimulam Lakshmi Priya to inherit his undivided shares.
3.2. The stepmother Samarla Manjula filed a suit for partition for allotment of 5/32nd share of various properties acquired by Koteswara Rao in O.S.No.19 of 1997 before the Additional Senior Civil Judge at Eluru, which ended in a compromise, wherein, she was allotted 5/32nd share in 9 Grounds and 964 sq.ft. approximately 1-1/2 Grounds at New No.58/A, Block No.109, T.S.No.4816, R.S. No.41 Part in T.Nagar Village apart from other properties.
3.3. The stepmother Samarla Manjula had no issues and out of love and affection, she had executed a deed of release, releasing her right, title and interest over her undivided 5/32nd share in the property referred to above in favour of the petitioner and his brother on 13.11.2007 before the second respondent office. The stamp duty had been paid as per
Article 58 Schedule-I of the India Stamp (Tamilnadu Amendment) Act, 31 of 2004 apart from a sum of Rs.2,000/- as registration fees.
3.4. The second respondent has kept the said deed as pending document and withholds the same without referring it to the Collector for adjudication under Section 31 and
Section 47 (A) of the Stamp Act.
3.5. On 02.08.2008, the second respondent issued a notice calling upon the petitioner to pay deficit stamp duty together with deficit registration fees. The said notice was received by him only on 09.08.2008. Challenging the said notice, the petitioner preferred a writ petition in W.P.No.21625 of 2008 before this Court. However, in the meantime, the second respondent has passed the impugned order dated 07.08.2008 under
Section 40(1)(b) of the Stamp Act calling upon him to pay the deficit stamp duty. Hence, the petitioner has withdrawn the writ petition in W.P.No.21625 of 2008 with liberty to challenge the final order dated 07.08.2008.
3.6. As per
Article 58 Schedule I of the Indian Stamp (Tamilnadu Amendment) Act, 31 of 2004, 'mother' shall include not only adoptive mother, but also stepmother. While so, the second respondent without considering the same, had directed the petitioner to pay deficit stamp duty together with deficit registration fees by the impugned order dated 07.08.2008. Hence, the petitioner has to approach this Court by filing the present writ petition challenging the said order.
4. Learned counsel appearing for the petitioner would mainly contend that --
(i) the second respondent ought to have referred the matter for adjudication before the Collector as contemplated under
Section 31 of the Indian Stamp Act. The Collector thereupon shall examine and enquire for impounding such document under
Section 33 and shall pass final orders under
Section 49(1)(b) of the Stamp Act. In the case of hand, the second respondent has passed the impugned order directing the petitioner to pay the deficit stamp duty as well as registration fees. Thus, the impugned order had been passed by the second respondent, who has no jurisdiction to do so;
(ii) the second respondent has no manner of right to keep the document with him without releasing the same even though general directions have been given by this Court in a judgment reported in 2001 2 M.L.J. 458, wherein it has been specifically held that the documents which have been submitted, have to be registered and handed over to the concerned person and if any deficit stamp duty has to be payable, the matter has to be referred under
Section 41 -A of the Stamp Act by making an endorsement in the said document to that effect.
5. On the other hand, learned Government Advocate appearing for the respondents, on instructions, would submit that the second respondent who has acted as a District Registrar, is empowered to pass orders directing the parties to pay the deficit stamp duty and deficit registration fees as contemplated under
Section 40(1)(b) of the Stamp Act. The notification to the effect would indicate that it is not correct to state that the second respondent has no jurisdiction to do so. As per Explanation to
Article 58 of Schedule-I of the Indian Stamp (Tamilnadu Amendment) Act, 31 of 2004, father, mother, husband, wife, son, daughter, grandchild, adoptive father, adoptive mother, adopted son and adopted daughter have been included as family members. Further, by the letter of the first respondent dated 10.08.2006, brothers and sisters have also been included as family members. While so, the document in question had been executed by the stepmother in favour of the petitioner and his brother and the same cannot be considered as an execution by the family members and hence, the deficit stamp duty and registration fees as required, have to be paid by the petitioner.
6. I have considered the submissions made by the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents.
7. The facts which are not disputed are that --
(i) the petitioner's grandfather one S.V.Ranga Rao died intestate on 18.07.1974 leaving behind his wife Samarla Leelavathi and only son Koteswaran as his legal heirs;
(ii) Samarla Leelavathi had executed a Will dated 15.11.1999 in respect of her 5/8th share and she died on 25.04.2000. On her death, the petitioner's father, the petitioner, his brother and sister acquired the properties;
(iii) after the demise of the petitioner's mother S.Vijayalakshmi, his father married one Samarla Manjula in the year 1988;
(iv) the petitioner's father Koteswaran died on 18.07.1989 intestate leaving behind Samarla Manjula, the petitioner, his brother and his sister to inherit the common undivided shares;
(v) Samarla Manjula filed a suit for partition for allotment of her shares over the immovable properties before the learned Additional Senior Civil Judge at Eluru in O.S.No.19 of 2007 which ended in a compromise wherein she was allotted 5/32nd share in the property, which is subject matter in this writ petition;
(vi) Samarla Manjula had executed a deed of release releasing her right over the said properties in favour of the petitioner and his brother;
(vii) notice was issued by the second respondent dated 02.01.2008, to pay the deficit stamp duty as well as deficit registration fees;
(viii) against the demand notice dated 02.01.2008, the petitioner preferred a writ petition in W.P.No.21625 of 2008;
(ix) in the meanwhile, the second respondent had passed the impugned order dated 07.08.2008 under
Section 40(1)(b) of the Stamp Act calling upon the petitioner to pay the deficit stamp duty together with deficit registration fees;
(x) in view of passing of the impugned order, W.P.No.21625 of 2008 was withdrawn with liberty to challenge the final order.
8. Learned counsel appearing for the petitioner would contend that as per Explanation to
Article 58 of Schedule-I of the Indian Stamp (Tamilnadu Amendment) Act 31 of 2004 (herein after referred to as Act), the word "family" shall include the stepmother also. According to the learned counsel, though father, mother, husband, wife, son, daughter, grandchild, adoptive father, adoptive mother, adopted son and adopted daughter alone were named as family members in the explanation to the said Article and later by the Government letter dated 10.08.2006 brothers and sisters were included as family members, it is not an illustrative one and exhaustive one thereby a strict appliance to be made. Further more, according to the learned counsel appearing for the petitioner, when adoptive mother could be considered as a family member, equally, the stepmother should also be considered as a family member.
9. However, learned Government Advocate appearing for the respondents would contend that a strict meaning should be taken for the word 'family' and Explanation to
Article 58 of Schedule I of the said Act gives the list of persons who could be called as 'family members'. Since the stepmother is not one of the categories as defined in the explanation for the word 'family', the petitioner has to pay the deficit stamp duty for the document executed by the stepmother in favour of the petitioner and his brother.
10. However, I am unable to accept the contentions of the learned Government Advocate appearing for the respondents. Though Explanation to
Article 58 of Schedule I of the said Act defines the persons coming under the word 'family', it could be said that it is only an illustration and not an exhaustive one. Therefore, strict meaning cannot be construed so as to include only those persons who have been named as 'family members'. Further more, when adoptive mother and adoptive father could be included as members of the family, it is neither legal nor logic to say that the stepmother could not be construed as a family member.
11. In the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (Tamil Nadu Act XVIII of 1960), members of the family in relation to the landlord is defined under Section 2 (6-A) of the said Act. There, it is stated that the members of the family of the landlord means his spouse, son, daughter, grandchild or dependent parent. The question whether the daughter in law would be construed as a member of the family arose before this Court in Civil Revision Petition Nos.1647, 1648, 1650 and 1651 of 1990. It has been answered by this Court in the said revisions that the daughter-in-law could also be construed as a family member and the same is reported in 1991-2- L.W. 692 Madhurani Gupta and another v. Shairu Bux Damani and another. Considering the various pronouncement of the Hon'ble Apex Court as well as this Court, it has been held thereon that the word 'family' is one of the great flexibility; sometimes the word 'family' in a broad sense would mean all those who are connected by blood relationship or marriage and therefore, are to be considered as belonging to the family. Thus in Section 2(6-A) of the said Act, member of the family of a landlord has been defined to include spouse, son, daughter, grandchild or dependent parent and the daughter-in-law was also considered as a family member. Thus, the said illustration given thereunder may not be construed strictly. It depends upon the facts and circumstances of each case. In the given case on hand, excluding the stepmother that she is not a family member could be farfetching. The object of the legislation and the intent in which the word used are relevant.
12. Stepmother is one of the Class I heirs as per Hindu Succession Act, 1956 and she is a family member on par with the mother. This position cannot be disputed by the respondents. When stepmother could be classified as Class I heir as per Hindu Succession Act, 1956, there may not be any reason in excluding her for the purpose of explanation to
Article 58 of Schedule I of the said Act while construing who are all the members of the family. As stated already, the illustration given thereon in the explanation to
Article 58 of Schedule I of the said Act cannot be an exhaustive one so as to exclude the other persons even though they could be construed as family members.
13. In view of the reasons stated above, the other contentions raised by the learned counsel appearing for the petitioner may not be necessary to be considered in this writ petition.
14. Considering the above facts and circumstances, I am inclined to set aside the impugned order of the second respondent dated 07.08.2008 and the writ petition stands allowed. The respondents are directed to treat the deed of release executed by the stepmother of the petitioner in favour of the petitioner and his brother dated 13.11.2007 to be classified as transaction between the family members as per
Article 58 of Schedule-I of Indian Stamp (Tamilnadu Amendment) Act 31 of 2004 and release the document in favour of the petitioner without insisting for the payment of deficit stamp duty and the deficit registration fees. The second respondent is directed to return the document to the petitioner, if it is otherwise in order, without insisting for the deficit stamp duty and deficit registration fees, within two weeks from the date of receipt of a copy of this order. No order as to costs. Consequently, connected miscellaneous petitions are closed.
sbi To
1.The Secretary to the Government, Commercial Taxes (J1) Dept., Secretariat, Chennai-9.
2.The Sub Registrar, (Before the District Registrar), T.Nagar @ Saidapet Sub Registrar Office, No.9, Gennies Road, Saidapet, Chennai 15