IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.12.2009 CORAM THE HON'BLE MR. JUSTICE P.JYOTHIMANI W.P.Nos.16013 and 29416 of 2007 and M.P.Nos.1 of 2007 and 1 & 2 of 2008 1.P.Kandasamy 2.K.Vasanthi .. Petitioners in W.P.No.16013/2007 1.K.Mani 2.K.Dhanapackiam .. Petitioners in W.P.No.26416/2007 Vs. The Joint Sub Registrar II, O/o. Joint Sub Registrar II, Namakkal. .. Respondent in W.P.No.16013/2007 The Joint Sub Registrar I, Namakkal. .. Respondent in W.P.No.29416/2007 Petitions under Article 226 of The Constitution of India praying for the issuance of a writ of certiorari to call for the records of the respondent in notices dated 22.02.2007 and 09.02.2007 and quash the same. For petitioners .. Mr.R.Subramanian in both the W.Ps For respondents .. Mr.P.S.Raman, Advocate General assisted by Mr.R.Murali, Govt. Advocate https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER These writ petitions are directed against the notices issued by the respondents/Sub Registrar II and Sub Registrar I, Namakkal, claiming deficit stamp duty on the basis that the documents registered with the registering authority are to be treated as conveyance. 2.In W.P.No.16013 of 2007, the petitioners have purchased an extent of 50 cents in Survey No.328/2, 1/30th undivided share in an extent of 3 acres 9 cents in Survey Nos.201/1, 201/3 and 202 from one Thilakavathy and another and an extent of 1/20th undivided share out of 3 acres 6 cents in Survey Nos.201/1 and 201/2 from one Chellappan under a sale deed dated 01.03.2006 registered as Document No.676/2006. Thereafter, on 15.05.2006, the petitioners have entered into a partition deed among them along with their vendors viz., Thilakavathy and others including Chellappan, by which, the entire "A" schedule property was allotted to the petitioners and other owners were paid cash in lieu of their share. The said partition deed was registered for the value of Rs.12,000/- and they have also paid the registration charge of Rs.3,250/- and the document was registered as partition deed in Document No.1254/2006 on 15.05.2006. 3.Likewise in W.P.No.29416 of 2007, the petitioners became the owners of the property situated at Survey No.485/4B, Town Survey No.64/1 and 64/2 at Ward D, Block 24, Sub Registration District at Namakkal under a partition deed dated 22.12.2006 registered as Document No.3099/2006 in the office of the Joint Sub Registrar-I, Namakkal. After the partition, which was relating to 15037.5 sq.ft., the petitioners have entered into another partition deed with other co-owners, pursuant to which, "A" schedule property was allotted to the petitioners and the value of the "A" schedule property was fixed as Rs.20 lakhs and the value of the "B" schedule property, which was allotted to other co-owners was fixed at Rs.14 lakhs and therefore, the value of the separate share has been fixed at Rs.14 lakhs and the stamp duty and registration charges were paid. It is stated that the respondent sent notice to the second petitioner on 09.02.2007 directing him to pay Rs.13,18,085/- as deficit stamp duty for the partition deed, which was registered as Document No.3099/2006 on 22.12.2006 itself. 4.In these two cases, admittedly, the deficit stamp duty is demanded by the respondents on the ground that the nature of documents should be treated as conveyance and not as partition deeds and the orders are challenged on the ground that the registering authority has no jurisdiction to decide about the nature of document when once the document has been registered as a https://hcservices.ecourts.gov.in/hcservices/ partition deed. It is the further submission of the learned counsel for the petitioners in these cases that after the respondent registers a document, he has no right to retain the document at all. 5.It is the case of the respondents, as stated by the learned Advocate General, that the impugned orders have been passed on the basis that the documents have been prepared as partition deeds while the real intention of the parties is to convey the right in the property and therefore, they should be treated as sale deeds. 6.As correctly submitted by the learned Advocate General, the registering authority, by issuing necessary certificate, can recover the deficit stamp duty, which is found to be deficit and insufficiently paid on a later date as per the provisions under Section 33-A of the Indian Stamp Act, which reads as follows: "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." https://hcservices.ecourts.gov.in/hcservices/ 7.Even for that purpose, it is necessary that an enquiry should be conducted and parties must be given an opportunity whereas in these cases, while passing the said orders, apart from the fact that the registering authority has no jurisdiction to decide about the nature of document, admittedly, no notice has been given and no enquiry has been conducted. 8.In such view of the matter, the impugned orders are liable to be set aside and accordingly set aside. The writ petitions stand allowed, however, making it clear that it is open to the authority competent under law to take appropriate action, if so advised. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. mmi To 1.The Joint Sub Registrar II, O/o. Joint Sub Registrar II, Namakkal. 2.The Joint Sub Registrar I, Namakkal. 2 CCS To M/s. R. Subramanian, Advocate, SR. 70885, 70883 2 ccs to Government Pleader, SR.70800, 70801 W.P.Nos.16013 & 29416 of 2007 RK (CO) kk 8/1 https://hcservices.ecourts.gov.in/hcservices/