ORDER
A.S. Venkatachalamoorthy, J.
1. W.P.17296 of 1995 has been filed praying this Court to issue a writ of Certiorari calling for the records in Proceedings dated 29.11.1995 on the file of the respondent and quash the same.
2. W.P.1141 of 1996 has been filed praying this Court to issue a writ of mandamus directing the respondent to register the release deed dated 13.6.1995 and hand over the same to the petitioner and withdraw the notice dated 29.11.1995.
3. Briefly it is the case of the petitioner that his brother by name P.D. Veeraraghavan and his son P.V. Krishnakumar executed a release deed dated 13.6.1995 in his favour releasing and relinquishing their undivided 1/3rd share in Door No. 25, Sadayappa Maistry Street, Madras - 79 bearing S.R. No. 6766, R.S. No. 1627 measuring 1215 sq.ft., for a consideration of 1,75,000/-. The petitioner paid a stamp duty of Rs.7,000/- thereon on the basis that it is a release deed executed by one co-sharer to and in favour of another co-sharer. The Sub Registrar kept the registration, pending determination of the proper stamp duty payable on the said instrument. Nothing happened thereafter and then suddenly the petitioner received an order dated 29.11.1995 issued by the respondent/Sub Registrar to the effect that the said release deed has been considered as sale deed as he being an Officer of the District Registrar cadre and on that basis called upon the petitioner to pay the deficit Stamp Duty of rs.15,750/- (Total Stamp duty Rs.22,750/-, minus Rs.7,000/- already paid).
4. In the affidavit filed in support of W.P.17296 of 1995, the petitioner has contended that he has not been given any opportunity by the respondent to put forth his case that the document has to be considered only as a release deed and not as a sale deed and that further under Section 33-A of the Indian Stamp Act, the proper stamp duty payable has to be found on the basis of a certificate from the Registrar of the District as an arrear of land revenue and no such certificate shall be granted unless due enquiry is made and such person is given an opportunity of being heard. According to the petitioner, under Sub-Section (3) to Section 33-A, any person aggrieved by a certificate of the Registrar of the District under sub-Section (1) may appeal to the Chief Controlling Revenue Authority. Since according to the petitioner none of the provisions of the Act have been complied with, the impugned order is liable to be set aside.
5. In the affidavit filed in support of W.P.1141 of 1996 the petitioner has averred that the respondent has not complied the registration formalities relating to the document in question and that unless and until the said release deed is registered, the respondent has no authority or jurisdiction to give a finding that there is an additional stamp duty payable by the petitioner. The petitioner caused a lawyer's notice dated 19.12.1995 to be sent to the respondent requiring him to complete all the registration formalities and register the said release deed and hand it over to the petitioner within seven days from the date of receipt of notice and that though the notice has been duly served on him, there has been no response for the same.
6. Before considering the claims of the petitioner, it is absolutely necessary that this Court has to refer to various provisions of the Act as well as the case laws to set out the legal position on two issues viz.,
(1) What is the test to be applied to find out whether a document is a release deed or conveyance, and
(2) When the registering authority comes to a conclusion that the document is not a release deed but a conveyance, what is the procedure to be followed by it.
7. Two sections in the Indian Stamps Act are relevant for the purpose of this case. Section 33-A has been introduced by the Tamilnadu Act 33 of 1987 and the said provision reads as under,
'33-A. Recovery of deficit stamp duty.
(1) Notwithstanding anything contained in Section 33 or in any other provisions of this Act, if, after the registration of any instrument under the Registration Act, 1908 (Central Act XVI of 1908), it is found that the proper stamp duty payable under this Act in respect of such instrument has not been paid or has been insufficiently paid, such duty or the deficit, as the case may be, may, on a certificate from the Registrar of the district under the Registration Act, 1908 (Central Act XVI of 1908) be recovered from the person liable to pay the duty, as an arrear of land revenue:
Provided that no such certificate shall be granted unless due inquiry is made and such person is given an opportunity of being heard.
Provided further that no such inquiry shall be commenced after the expiry of three years from the date of registration of the instrument.
(2) The certificate of the Registrar of the district under sub-section (1) shall, subject only to appeal under sub-section (3), be final and shall not be called in question in any court or before any authority.
(3) Any person aggrieved by a certificate of the Registrar of the district under sub-section (1) may appeal to the Chief Controlling Revenue Authority. Any such appeal shall be preferred within such time, and shall be heard and disposed of in such manner, as may be prescribed.
8. The next provision that is to be referred is Section 47-A of the Indian Stamp Act, 1899. Again, this was introduced by Tamilnadu Act 24 of 1967. The said section reads as under,
'47-A. Instruments of conveyance etc., under valued how to be dealt with.
(1) If the registering officer appointed under the Indian Registration Act, 1908 (Central Act XVI of 1908) while registering any instrument of conveyance, exchange, gift, release of benami right or settlement has reason to believe that the market value of the property of which is the subject matter of conveyance, exchange, gift, release of benami right or settlement, has not been truly set forth in the instrument he may, after registering such instrument, refer the same to the Collector for determination of the market value of such property and the proper duty payable thereon.
(2) On receipt of a reference under sub-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject matter of conveyance, exchange, gift, release of benami right or settlement, and the duty as aforesaid. The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty.
9. According to Section 33-A, if after registering any document, it is found that the proper stamp duty payable in respect of an instrument has not been paid or has been insufficiently paid, on a certificate from the Registrar of the District be recovered from the person liable to pay the duty, as an arrear of land revenue. Or in other words, this provision will apply in cases where a document has been found to be insufficiently paid at a later point of time, after registration. In such an event, the procedure laid down under Section 33-A has to be followed.
10. Coming to Section 47-A, it lays down that while registering a document, the registering authority has reason to believe that the market value of the property of which is the subject matter of conveyance, etc., has not been truely set forth in the instrument after registering the document, refer the same to the Collector for determination of the market value.
11. The next legal position that has to be referred to is as to what is meant by release deed and how it differs from a conveyance.
The term 'release' has not been defined in any of the acts viz., the Indian Registration Act, 1908 or the Indian Stamp Act, 1899, or in the Transfer of Property Act.
12. A Full Bench of this Court in Chief Controlling Revenue Authority, Board of Revenue, Madras v. Tvl.Inca Cables (Pvt) Ltd., Madras-4, , affirmed the view taken in the earlier Full Bench decision in Chief Controlling Revenue Authority v. Rm. L. Rm. L. Lakshmanan, and ruled as under,
'The essential difference between a conveyance and a release lies in the fact that in the latter, there is no transfer of an interest or right to another, who had no pre-existing right in it to any extent. A release of a right or of a claim can only be in favour of a person who had a pre-existing right or claim and by reason of the release the latter's right or claim is enlarged or is made fuller in its content. Kuppuswami v. Arumugam, , quoting from Hutchi Gowder v. Bheema Gowder, and S.P. Chinnathambiar v. Chinnathambiar accepter the proposition as correct that a release can only feed title, but cannot transfer title or that renunciation must be in favour of a person, who had already title to estate, the effect of which is only to enlarge the right; renunciation does not vest in a person a title where it did not exist.'
13. In Thayyil Mammo and another v. Kottiath Ramunni and others, , the Court ruled that the nomenclature of a deed and the amount of the stamp paid on it, though relevant are not conclusive on the question of construction. The Court further held that a registered instrument though styled as release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration, may operate as a conveyance, if it clearly discloses an intention to effect a transfer.
14. Or in other words, what is decisive is the actual character of a transaction and the precise nature of the rights created by means of the instrument. The essential ingredients of release are that there should already be a legal right in the property vested in the releasee and the release should operate to enlarge that right into an absolute for the entire property as far as the parties are concerned. There can be no release by one person in favour of another who is not already entitled to the property as co-owner. A release deed is valid not only when it is gratuitous and it can be validly executed also for some benefit accruing to the releasor simultaneously. Where the property is owned by two co-owners each having an undivided half share in the property and one of them by a deed effaces himself in respect of his title and right to possession in favour of the other, the document is a release and not a conveyance. (Please refer , Chief Controlling Revenue Authority v. Rustorn Nusserwanji Patel).
15. Coming to the present case, as could be seen from the recitals in the document in question, a preliminary decree was passed on 7.12.1989 in O.S.7512 of 1984 on the file of City Civil Court, Madras, holding that the brother of the petitioner viz., first releasor is entitled to 1/3rd share and out of the 2/3rd, 1/3rd share in favour of the releasee and the reminder 1/3rd for the sister. In the final decree proceedings, the Court allotted the ground floor of Door No. 25 to the first releasor i.e., brother of the petitioner and the first floor in the said building was divided into two portions and one portion was allotted to the releasee and the other portion to the sister of the petitioner. The first releasor i.e, brother of the petitioner filed E.P.2162 of 1992 in O.S.7512 of 1984 for delivery of possession of the ground floor the property in question and pursuant to the final decree, took symbolic possession. The appeal A.S.226 of 1992 filed by the sister of the petitioner against the final decree passed in O.S.7512 of 1984 was ultimately dismissed on 4.2.1994, against which S.A.245 of 1994 has been filed by the sister of the petitioner and the same was pending on the date when the document in question came to be executed. According to the document, for 1/3rd share of the first releasor, i.e., brother of the petitioner, the Court allotted the ground floor in the property in question and he took symbolic possession of the same, because that portion is in the occupation of two tenants. It is that property, which is sought to be released under this document.
16. This Court considers it necessary to refer to certain provisions of Code of Civil Procedure, so also the Division Bench ruling of this Court so that the Collector, who has to decide the matter, shall take note of.
Chapter VIII of the Civil Rules of Practice deals with proceedings in execution, i.e., Rules 135 to 203.
Rule 135 lays down that the rules set out in Chapter VIII shall apply to all proceedings in executions, as well as decrees as of orders, and that the word decree would include order as well.
Rule 140 lays down that certified copy of the decree has to be filed when a person seeks to execute a decree.
Rule 141 is to the effect that if that is not done, the execution petition shall be returned for amendment or it will be rejected. For better understanding, the said clauses can be quoted hereunder,
'135. Rules applicable to all proceedings in execution.- The following rules shall apply to all proceedings in executions, as well as of decrees as of orders, and in this chapter the word 'decree' includes 'order'.
140. Certified copy of decree to be filed.- The judgment-creditor shall together with the first petition for execution or transmission of a decree file in court a certified copy of the decree sought to be executed and shall not be required upon any subsequent application, to file a further copy of the same decree, unless the copy already filed has been sent to another court under rule 6 of Order XXI of the Code and has not been returned and application is made to the court which passed the decree for concurrent execution.
141. Non-compliance with rules.- A petition not complying with the provisions of the Code or these rules, or not claiming any substantial relief, shall be returned for amendment or rejected.'
A Division Bench of this Court, way back in the year 1937, in Pandiri Satyanandam and others v. Paramkusam Nammayya and another, 47 LW51, has ruled that a final decree for partition has no existence as a decree, until it is engrossed on the proper non-judicial stamp paper. In fact, the Division Bench referred to the ruling of the Calcutta High Court in Jotindra Mohan Tagore v. Bejoy Chand Mahatap, ILR Cal 483.
17. In this case, the first releasor filed execution petition E.P.2162 of 1992 in O.S.7512 of 1984 on the file of City Civil Court and took symbolic possession of ground floor as there were tenants occupying the said floor. The first releasor could have filed execution petition obviously only after obtaining a final decree engrossed in a non-judicial stamp paper.
18. Coming to the present case, what the registering authority has done is, he has given a provisional number i.e., Pending Register No. P.198/1995 and has called upon the petitioner to pay the deficit stamp fee without hearing him. The claim of the petitioner that the document should have been registered and handed over to him, cannot be accepted. The respondent should have followed the procedure laid down in Section 47-A of the Indian Stamp Act and he after registering such instrument, should have only referred the same to the Collector for determination. It cannot be said that the registering authority has committed mistake in not registering the document, but of course, has committed a mistake in deciding the matter himself. The fact that he is of the District Registrar's Cadre could not have been the reason for him to decide, as he was authorised and empowered only to act as Sub-Registrar at that time. On the ground that the respondent has not followed the procedure laid down in Section 47-A viz., not referring the matter to the Collector for determination of the market value, the impugned order is liable to be set aside.
19. In the result, the impugned order is set aside. The respondent is directed to refer the matter to the Collector for determination of market value. The District Collector shall decide whether the document is one of release or conveyance, of course, after following the procedure laid down under Section 47-A(2) of the Indian Stamp Act.
20. The above writ petitions are allowed to the extent indicated above. Consequently, W.M.P.27398 of 1995 is closed.