Subasish Deb vs State of West Bengal and Others

The Court

The only question which arose in this application is that whether the family as mentioned in Article 33(1) of the West Bengal Amendment Act IV of 1998 includes the brother within the meaning of the said word ''family''?

The facts of the case is that the petitioner and his brother is the owner of the entire premises No. 49/13B, Hindusthan Park, P.S. Gariahat, Calcutta (hereinafter referred to as the said premises). The petitioner is a bachelor. The petitioner states that one Debaslsh Deb is the only brother of the petitioner who also resides in the same ground floor of the same premises and dependent on the petitioner. The said ground floor has been divided into two lots. The petitioner Is the owner of one lot of the said ground floor of the said premises and his brother Is the owner of the half portion of the said ground floor. For the purpose of gift of the said property in favour of his brother, the petitioner took necessary steps for registration of the Deed of Gift and thereby came to learn that the petitioner has to pay the Stamp Duty as a conveyance on the market value of the property which is the subject matter of the Gift. The amended Article 33 of West Bengal Act IV of 1998 read as follows :--

"33. Gift-Instrument of, not being a settlement (No. 58) or will or Transfer (No. 62)-

(i) When made to a member of a family : One half of one per centum of the market value of the Property which is the subject matter of the gift.

(ii) When made to any other person : The same duty as a Conveyance (No. 23) on the market value of the property which is the subject matter of the gift.

Explanation--For the purpose of this Article, member of a family shall include parent, spouse, son, unmarried and widow daughter (residing with parent) grandson, grand-daughter.

Mr. Banerjee appearing on behalf of the petitioner submitted that the explanation in Article 33 does not give an exhaustive definition of the phrase "family member". He further submitted that the explanation given under the said article does not include the brother and as such it is unconstitutional and unreasonable and in breach of Article 14 of the Constitution of india.

He further submitted that by virtue of such amendment the petitioner has been directed to pay Stamp Duly to be payable on the Deed of Gift on the basis of Article 33(11) of Schedule 1A of the indian Stamp Act.

Mr. Banerjee further submitted that the respondent No. 2 has illegally and unreasonably failed to interpret the scope of Article 33(1) of Schedule IA of the indian Stamp Act and West Bengal Amendment Act IV of 1998. Therefore, on these grounds the only question to be decided is whether brother can come within the meaning of the word "family".

M. Banerjee further relief upon a Judgment reported in AIR 1982 SC 1092 (Baldev Sahai Bangia v. R.C. Bhasin) and submitted that the wider interpretation should be given in respect of the interpretation of the family and it should include the brother of the petitioner also.

Mr. Banerjee further submitted that the words "member of family" shall include as explained in the said Article to indicate an exhaustive explanation of the meaning which, for the purpose of the Act, must invariably attach of these words or expressions. He relied upon judgment reported in P. Kasilingam and others Vs. P.S.G. College of Technology and others, and also relied upon The Regional Director, Employees''State Insurance Corporation Vs. M/s. High Land Coffee Works of P.F.X. Saldanha and Sons and another, in support of his contention.

I have carefully examined the said Judgments and as it appears from the "Osburn''s Concise Law Dictionary" that the meaning of the ''Family1 has included all descendants of the same ancestors and as it has been decided by the House of Lords in ''Carega Pmperttes Essay v. Sharratt'' reported in 1979 (2) All E R 1084, the ''House'' decided that ''family'' was not a term of art but was used in its ordinary popular meaning and in that meaning it requires at least a broadly recognisable de facto familiar nexus. Such position was accepted in''a later decision of the court of appeal in "Kavanagh v. Ltrough" reported in 1985 (1) All E R 560.

After considering all these facts and circumstances of this case and the judgments cited before me I do not have any hesitation to accept the contention of Mr. Banerjee and to hold in the light of the decision of the Hon''ble Supreme Court reported in The Regional Director, Employees''State Insurance Corporation Vs. M/s. High Land Coffee Works of P.F.X. Saldanha and Sons and another, where the Supreme Court has held as follows :--

"The word ''conclude'' in the statutory definition is generally used to enlarge the meaning of the proceeding words and it is by way of extension, and not with restriction. The word ''include'' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include."

For the reasons stated hereinabove I do not have any hesitation to hold the statutory constructions as submitted by Mr. Banerjee and in my opinion the word ''include'' to be taken as in wider sense and shall include in this case the ''brother'' as a member of the family.

For the reasons stated hereinabove this application is allowed.

All parties are to act on a xerox signed copy of this Dictated Order on the usual undertaking.

Application allowed