AI Structured Summary
Not yet generated for this judgment
Judgment
Kulkarni, J.—This is a revision by defendant No. 3 against the order dated 21-8-1987 passed by the Civil Judge, Mangalore, in FDP 45/78 in O.S. 71/75 calling upon the petitioner (defendant No. 3) to produce the non-judicial stamp paper to execute the sale certificate in respect of the sale conducted by the Court Commissioner as per the orders of the Court.
The present revision petitioner was held entitled to 9/48 share in the properties. The property in question was a godown property and incapable of division. Therefore, the Court ordered the sale of the property between the share holders themselves and it appointed a Commissioner for conducting the sale between co-sharers The sale was held by the Court Commissioner. The highest bid was for Rs.2,70,000/-. The present petitioner was the highest bidder. According to the petitioner, he deposited the entire amount of Rs.2,70,000/- and he filed an application (I.A.37) for payment of his share of the money in deposit. The Court, while disposing of I.A.37, held that unless the present revision petitioner paid the non-judicial stamp paper for the execution of the sale certificate, his request for issuing a cheque in relation to his share in the money could not be granted. It is this order which is challenged in this revision.
The sale was, admittedly, held between the co-sharers themselves. The Court ordered the sale as it came to the conclusion that the property was incapable of division. Therefore, under these circumstances, in order to see that each party gets his share in the value of the property, it ordered the property to be sold amongst the co-sharers.
Therefore, the question that arises for consideration is:
1) Whether the sale in question would attract the provisions of the Stamp Act, so as to necessitate the collection of the non-judicial stamp-papers from the revision petitioner?
It has been held in COMMISSIONER OF GIFT TAX v. GETTY CHETTIAR AIR 1972 SC 2410 as :
"It is now settled by the decision of this Court in Commissioner of Income Tax, Gujarat Vs. Keshavlal Lallubhai Patel, that a partition of joint Hindu family property cannot be considered as transfer in the strict sense - the sense in which all legal expressions are understood and more particularly in tax laws. In the course of that Judgment Sikri J. (as he then was) speaking for the Court observed :
''But, is a partition of Joint Hindu Family property a transfer in the strict sense? We are of the opinion, that it is not. This was so held in Gutta Radhakristnayya minor, by mother and guardian Nagarattamma Vs. Gutta Sarasamma, . Subba Rao J. (then a Judge of the Madras High Court) after examining several authorities came to the conclusion that "partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had an antecedent title and, therefore, no conveyance is involved in the process, as a conferment of a new title is not necessary."
Similar is the view taken in M.K. Stremann, Madras Vs. Commissioner of Income Tax, Madras, . Therefore, a partition brought about between the coparceners does not amount to a transfer of any property but is merely an adjustment of shares in the joint family property and ultimately allotting each one some property in proportion to his share.
In STATE v. M.L.M. SHETTY AIR 1972 Mys 263 a Full Bench of this Court held as :
"The expression ''sale'' has not been defined under the Mysore Stamp Act. Therefore, we have to accept the ordinary meaning of the expression ''sale'' for the purpose of construing the expression ''sale'' given in Section 2(d) of the Act."
In the case of a partition what is done is that the shares in the properties are adjusted between the parties. While so adjusting the shares of the parties in the proper ties, one person may be allowed to retain the entire property for himself subject to the payment of owelty to other sharers in respect of their share in the property. Therefore, partition amongst the Hindu Co-sharers does not amount to a transfer of property or any interest in the property, though it might result in the wiping out of the shares of other sharers in the property.
It has been held in DASAPPA SETTY v. KALI DASAPPA SETTY 1968(1) Mys. L.J. 200 that a partition is not a transfer at all and that a sale certificate issued under Order 21, Rule 94 C.P.C. was not an instrument of sale and the stamp duty need not be paid thereon u/s 164 of the Panchayat Act.
It has been laid down in Badri Narain Prasad Choudhary and Others Vs. Nil Ratan Sarkar,
"The suit property, being incapable of division in specie, there is no alternative but to resort to the process called owelty, according to which, the rights and interest of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. As rightly pointed out by K. Subba Rao, C.J. (speaking for a Division Bench of Andhra High Court in R. Ramaprasada Rao Vs. R. Subbaramaiah and Others, in cases not covered by Sections 2 and 3 of the Partition Act, the power of the Court to partition property by any equitable method is not affected by the said Act."
In Dr. Kishore Chand Kapoor and Others Vs. Dharam Pal Kapoor and Others, it has been held in para 11 as :
"After considering the facts and circumstances of the case and the submissions made on behalf of the parties we accept the valuation as made by Col.Kohli (Retd.) at Rs.4,29,000/- Respondent 1 will be entitled to purchase the shares of the appellants and respondent 2 by paying to each of them a sum of Rs.82,000/- that is, in all a sum of Rs.4,10,000/-. If the said amount of Rs.4,10,000/- is deposited by respondent 1 in the Delhi High Court within two months from date, a final decree will be passed in the suit allotting the entire property to respondent 1."
(Underlining by me)
It has been further laid down in Capt. (Now Major) Ashok Kshyap Vs. Sudha Vasisht and Another, that if in the course of an arbitration a co-sharer gets the entire property on payment of certain amount to the other co-sharers, it does not amount to a sale at all.
The sale of the coparcenery property between the various sharers is with a view to effect an equitable partition between the various co-sharers. It is only a question of allotment of the property. No transfer is effected in such a case at all. Therefore, even if the property is sold by the Court or its agent between the co-sharers themselves and if one of the co-sharers makes the highest bid and his bid is accepted, it only means that the property for which the highest bid is made should be allotted to the highest bidder. It does not amount to a sale at all. If it does not amount to a sale, the question of executing a sale certificate or execution of a sale paper does not arise. Shri. Gopalkrishna Shetty argued as to what would be the position, if such an arrangement is brought about privately between the parties. If the coparceners while bringing about a partition of the joint family properties between themselves, out of Court, agree that one coparcener should retain the property and give the value of their respective shares to the other coparceners, such an arrangement may not amount to a sale.
As stated by this Court the sale certificate issued under Order 21, Rule 94 C.P.C. was not an instrument of sale and, therefore, the question of paying the non-judicial stamp paper as prescribed by the Stamp Act does not arise.
Therefore, in the result, viewed from any angle, the order calling upon the revision petitioner to produce the non-judicial stamp paper for the issue of the sale certificate cannot be sustained.
Therefore, under these circumstances, the order passed by the Court-below calling upon the revision petitioner to pay the non-judicial stamp paper for execution of the sale certificate is set aside. The revision is allowed.
As the matter hinges only on a pure question of law, the parties are ordered to bear their own costs throughout.