IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WA.No. 2586 of 2007 --------------------------- AGAINST THE JUDGEMENT IN WPC.14096/2006 Dated 22/01/2007 .................... APPELLANTS/RESPONDENTS 1 & 3 IN THE WPC -------------------------------------------------------------------- 1. THE SUB REGISTRAR, THE SUB REGISTRAR'S OFFICE, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO REGISTRATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. BY SR.GOVERNMENT PLEADER SMT.K.MEERA RESPONDENTS/PETITIONER & RESPONDENT NO.2 IN THE WPC -------------------------------------------------------------------------------------------- 1. C.M.NADIRSHA, MUNADATH HOUSE, EDAYAPPURAM, ALUVA, PIN - 683 201, REP. THROUGH HIS POWER OF ATTORNEY HOLDER M.M.KUNJUMOHAMMED, S/O.MOIDEEN PILLAI, MANADATHU, EDAYAPURAM, ERUMATHALA, ALWAYE. 2. THE RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, 8TH FLOOR, K.S.E.B., BUILDING, PANAMPILLY NAGAR, COCHIN - 682 036. R1 BY ADV. SRI.BABU CHERUKARA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy, Ag.C.J. & V.Giri, J. ------------------------------------------ W.A.No. 2586 of 2007 ------------------------------------------ Dated, this the 28th day of January, 2009 JUDGMENT J.B.Koshy, Ag.C.J. Petitioner is an auction purchaser of an extent of 6.852 cents in Sy.No.84/3 in Elamkulam Village in Kanayannoor Taluk along with a building therein. Sale certificate was issued by Ext.P1. A copy of the sale certificate was forwarded to the first respondent Sub Registrar by the second respondent Recovery Officer to file the same in Book No.1 as per Section 89(4) of the Indian Registration Act, hereinafter referred to as 'the Act'. But the same was sent back by the first respondent to the second respondent stating that as per clause 16 of the Schedule to the Kerala Stamp Act the sale certificate is to be prepared in stamp paper worth Rs.1,17,300/-. Challenging that view the writ petition was filed. 2. The learned Single Judge relying on the decision of the apex Court in Shanti Devi L.Singh v. Tax Recovery Officer and others [(1990) 3 SCC 605] held that sale certificate is not a compulsorily registrable document and filing of a copy of the sale W.A.No.2586 of 2007 2 certificate in Book No.1 under Section 89(4) of the Act does not amount to registration of the document. It is true that filing of the sale certificate in Book No.1 will not put the purchaser at court or revenue sale under any disadvantage, even if it is not registered. But merely because the certificate of sale was not compulsorily registrable, there is no vitiating circumstance in the transfer of title. Learned Judge also held that in view of the decision in Santhi Devi's case, registration charges are not payable and the Registration Officer has to act in terms of Section 89(4) of the Act read with Rule 21 of the ITCP Rules. The learned Judge also noticed that similar orders were passed in other cases and therefore, a direction was issued to file the sale certificate in Book No.1 as requested by the petitioner, in terms of Section 89(4) of the Act read with Rule 21 of the ITCP Rules. This is challenged by the State in the writ appeal. 3. In Santhi Devi's case the question decided was whether the sale certificate forwarded under Section 89(4) of the Act is not a compulsorily registrable document and filing of a copy of the same in Book No.1 under Section 89(4) of the Act W.A.No.2586 of 2007 3 does not amount to registration of the document and therefore, no registration charges can be collected. The question whether the certificate of sale is liable to be stamped was not decided. With regard to that point the Honourable Supreme Court held as follows: “There are two provisions in the Stamp Act which provide for the adjudication of stamp duty. Under Section 31, it is open to the executants of any document, at any stage but within the time limit set out in Section 32, to produce a document before the Collector of Stamps and require him to adjudicate on the question whether the document should bear any stamp duty. The Collector thereupon may adjudicate the stamp duty himself or refer the matter to the Chief Controlling Revenue Authority of the State. In turn, it is open to the Chief Controlling Revenue Authority to refer the matter to the High Court for an authoritative decision (Sections 32 and 56). This procedure could have been followed by the petitioners if they wished to seek an answer to the question whether the certificate of sale is liable to stamp duty but they have not done it and the time limit under Section W.A.No.2586 of 2007 4 32 has run out. The other provision that may become applicable is Section 33. Under this section, if any document (and this includes a certificate of sale) is presented to the Registrar for registration and the Registrar is of opinion that it is a document which should bear stamp duty but that it has not been stamped, it is his duty to impound the document and send it on to the Collector of Stamps for necessary adjudication (Section 38). This contingency has also not happened. The third contingency, also provided for Section 33 is when a party wishes to rely upon the certificate of sale as a piece of evidence before a court or an authority entitled to take evidence. Such court or authority will also have to impound the document and shall not admit the same in evidence unless the stamp duty chargeable and the stipulated penalty are paid. This situation has not arisen so far but may arise at some time in future. It is unnecessary to anticipate the same and decide the issue. We shall therefore leave the issue of stamp duty to be adjudicated upon in the normal course, as and when found necessary, and express no views thereon at this stage.” Again at paragraph 14 it was observed as follows: W.A.No.2586 of 2007 5 “We express no opinion on the question as to whether any stamp duty or municipal transfer fees are payable in respect of the original certificate of sale.” That question was also not decided in W.A.No.1086 of 2006 relied on by the petitioner. 4. In this case when the sale certificate was sent for entering in Book No.1 under Section 89(4) of the Act, the registering officer who is also an officer under Section 33 of the Kerala Stamp Act found that the instrument ought to have been stamped. Section 33 of the Kerala Stamp Act, 1959 reads as follows: “33. Examination and impounding of instruments:- (1) Every person having by law or consent of parties authority to receive, evidence and every person in charge of a public office, except an Officer of Police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. W.A.No.2586 of 2007 6 (2) For that purpose every such person shall examine every instrument to chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State when such instrument was executed or first executed. Provided that - (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in the case of a Judge of the High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the court appoints in this behalf. (3) For the purposes of this section, in cases of doubt, the Government may determine- (a) what offices shall be deemed to be public offices; and (b) who shall be deemed to be persons in charge of public offices.” W.A.No.2586 of 2007 7 5. The first respondent Sub Registrar was an officer in charge of public office. As he found that the document was not duly stamped, he issued Ext.P3. The question whether stamp duty is payable on the sale certificate is the question to be considered and decided in this case unlike in Santhi Devi's case. Section 3 of the Kerala Stamp Act reads as follows: “3. Instruments chargeable with duty.- Subject to the provisions of this Act and the exemptions contained in the Schedule, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefor, respectively, that is to say - (a) Every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in the territories of the State of Kerala on or after commencement of this Act; and (b) every instrument mentioned in the schedule which not having been previously executed by any person, is executed out of the State of Kerala on or after that day, relates to any property situate, or to any matter or thing done or to be done, in the W.A.No.2586 of 2007 8 territories of the State of Kerala and is received in the territories of the State of Kerala; Provided that no duty shall be chargeable in respect of- (1) any instrument, executed by, or on behalf of or in favour of the Central Government or this or any other State Government in cases where, but for this exemption, the Central Government or the State Government, would be liable to pay the duty chargeable in respect of such instrument; (2) any instrument for sale, transfer or other disposition either absolutely or by way of mortgage or otherwise of any ship or vessel or any part, interest, share or property of or in any ship or vessel.” 6. Certificate of sale comes under Article 16 of the Schedule to the Act, which reads as follows: “Sl.No. Description of instrument Proper stamp duty Certificate of sale (in respect of each The same duty as on Property put up as a separate lot and a conveyance sold) granted to purchaser of any (No.21 or 22 as the 16. property sold by any Public Auction case may be) for a by a Civil or Revenue Court or consideration equal by the Government, Collector or to the purchase other Revenue Officer. Money only.” W.A.No.2586 of 2007 9 Section 30 of the Act deals with duties by whom payable. Section 30(e) of the Act reads as follows: “(e) In the case of a certificate of sale – by the purchaser of the property to which such certificate relates;” 7. Certificate of sale is the title deed of the petitioner and Section 34 of the Act states that instruments not duly stamped are inadmissible in evidence. So, for future also, it is necessary for the petitioner to get the certificate of sale stamped. Fortunately for the petitioner, the document was not impounded. But the Sub Registrar only directed that the sale certificate be forwarded along with the details of stamps used. The letter Ext.P3 reads as follows: “As per Sl.No.16 of the schedule to the Kerala Stamp Ac6t 1959 sale certificates in respect of property situated in Corporation limit requires stamp duty @ Rs.8.5 per Rs.100/- and part thereof. In this case, sale being for an amount Rs.1380000/- the W.A.No.2586 of 2007 10 sale certificate has to be prepared and executed in stamp worth Rs.1,17,300/-. In case the stamp duty has already been collected at the above rate sale certificate may be forwarded along with the details of stamps used. The sale certificate forwarded vide reference cited is returned herewith for favour of necessary action.” 8. When the Recovery Officer forwarded the copy of the sale certificate to the Sub Registrar for filing as stipulated under Section 89(4), he only requested that the sale certificate shall be prepared in stamp paper. Since the petitioner is a purchaser he has to pay stamp duty and we see no ground to interfere with Ext.P3. In the above circumstances, we set aside the impugned judgment with regard to the question of stamp duty payable by the petitioner. Petitioner is given two months time from today to produce necessary stamp papers before the Recovery Officer so that the sale certificate can be executed in stamp papers as directed in Ext.P3 and thereafter the certificate W.A.No.2586 of 2007 11 of sale which is not compulsorily registrable should be positively entered in Book No.1 as provided under Section 89(4) of the Act without any registration charge. Writ appeal is accordingly allowed. J.B.Koshy, (Ag. Chief Justice) V.Giri, (Judge) vns