MADHAVAN NAIR Vs. BOARD OF REVENUE
LAWS(KER)-1974-1-25
HIGH COURT OF KERALA
Decided on January 31,1974

MADHAVAN NAIR Appellant
VERSUS
BOARD OF REVENUE Respondents

JUDGEMENT

V.BALAKRISHNA ERADI,J. - (1.) THE petitioner and his brother one Shri Achuthan Nair were carrying on business as a firm registered under the Indian Partnership Act,1932 under the name and style of M/s E.P.Brothers,Ottappalam since 1st April 1946.According to the petitioner,pursuant to a decision taken by the partners to effect a dissolution of the firm as on 31st March 1970 an allocation of the assets and liabilities of the firm as between the partners was effected as per an oral arrangement and the petitioner and his brother took separate possession of the assets respectively allotted to each of them pursuant to the said allocation.A memorandum was thereafter executed by the two erstwhile partners putting on record the factum of dissolution of the partnership and the allocation of the assets and liabilities between the two partners under the oral arrangement as foresaid.That document was executed on 10th July 1970 and to it was attached the balance sheet of the firm as on 31st March 1970 as also two lists containing memoranda of the assets and liabilities allotted to and taken charge of by the petitioner and his brother respectively.Ext.P -1 is a copy of the said document together with the attached lists.
(2.) THE document above referred to was stamped as a deed of dissolution of partnership and it was registered at the Sub Registry Office,Ottappalam as document No.P -16/70.Long thereafter,the petitioner received a communication dated 13th November 1971 from the Sub Registrar,Ottappalam whereby he was informed that it had been held by the Board of Revenue in certain proceedĀ­ings dated 20th September 1971 that the document executed by the petitioner and his brother Achuthan Nair,which had been registered as document No.P -16/70 of the Sub Registry Office,Ottappalam has to be stamped as a partnership deed and that a deficit stamp duty of Rs.7,727 is to be collected from the petitioner.The petitioner was therefore called upon by the Sub Registrar by the said communication to remit the amount of Rs.7,727 into his office at a very early date.Ext.P -2 is a copy of the aforesaid communication sent to the petitioner by the Sub Registrar.Along with that letter,the Sub Registrar had also forwarded to the petitioner a copy of the proceedings of the Board of Revenue dated 20th September 1971 to which reference was made in Ext.P -2. On receipt of Ext.P -2,the petitioner preferred a representation to the Board of Revenue wherein he submitted that the order passed by the Board on 20th September 1971 was vitiated by a failure to conform to the principles of natural justice inasmuch as no opportunity had been extended to the petitioner to make his representations before the said order holding the petitioner liable for payment of the substantial amount.as the deficit stamp duty was passed by the Board of Revenue,that the view taken by the Board that the document is liable to be treated as a deed of partition for purposes of levy of stamp duty is incorrect,that in any event it involves a substantial question of law and that the Board of Revenue should therefore be pleased to state a case for the decision of the High Court under section 55 of the Kerala Stamp Act.The petitioner's representation was considered by the Board of Revenue and the request made by the petitioner for a reference of the question to the High Court under section 55 of the Kerala Stamp Act was turned down by the Board as per its order evidenced by Ext.P -4.The petitioner has come up with this writ petition seeking to quash Ext.P -4 and paying also for the issuance of a writ of mandamus compelling the Board of Revenue to refer to the High Court under section 55 of the Kerala Stamp Act the question whether the document Ext.P -1 is liable,to be treated as a deed of partition for purposes of assessment of the stamp duty.
(3.) IN the order Ext.P -4 the Board of Revenue has taken the view that it is not a fit case for making a reference to the High Court under section 55 of the Act since no substantial question of law is involved in the matter.The learned Advocate appearing for the petitioner points out that inasmuch as the document purports to be only a memorandum of dissolution of partnership,the effect of which is merely to record the factum of a prior distribution of assets already effected between the partners under an oral arrangement which took place in March 1970,there is no justification at all for treating the document as a deed of partition.Reference was made by the learned Advocate to the definition of the expression instrument of partition Ācontained in section 2(k)of the Act and it was contended that the document in question does not at all fall within the scope of the said definition.Counsel also referred to the decision of the Supreme Court reported in Addanki Narayanappa v.Bhaskara Krishnappa A.I.R.1966 S.C.1300 and Commissioner of Income -tax v.Dewas Cine Corporation A.I.R.1968 S.C.676 in support of his argument that no element of transfer is involved in the process of adjustment of the rights of partners in a dissolved firm and that the law does not require such an arrangement being evidenced by a registered instrument.;


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