BROTHERS TRADING SYNDICATE Vs. CHAMPALESSERI BROTHERS
LAWS(KER)-1974-3-9
HIGH COURT OF KERALA
Decided on March 11,1974

BROTHERS TRADING SYNDICATE Appellant
VERSUS
CHAMPALESSERI BROTHERS Respondents

JUDGEMENT

- (1.) IN an action laid by a firm called Brothers Trading syndicate, Thenhippalam, two documents were tendered in evidence on the plaintiff's side. The first document is a registered instrument dated 17 1967 whereby two partners retired from the firm after receiving Stated consideration presumably in settlement of all claims. The document specifically recites that the retiring partners are relinquishing all their rights over the assets of the firm in as much as the firm is continuing. The second document is dated 7 91968. That too is an arrangement whereby two other partners retired; and in form and content it is very similar to the earlier document. For both documents stamp duty was paid on the basis that they were agreements. On objection being raised by the defendants regarding the admissibility of the two documents in evidence on the ground that they are insufficiently stamped, the court below held that the instruments should be taxed as releases. The plaintiff firm "challenges the correctness of that order.
(2.) ALL sides are agreed that the liability to pay stamp duty is to be determined in accordance with the provisions of the Kerala Stamp act, Act 17 of 1959 (for brevity the Act) as it stood before its amendment by act 29 of 1969. The revision petitioner persists that the two documents are agreements covered by item 5 of the Schedule annexed to the Act. The contention of the revenue, on the other hand, is that the relevant provision is Entry 47 of the Schedule. It is true that both the documents are nomenclatured as agreements. But that does not conclude the real character of the instruments. In both transactions the retiring partners categorically agreed that they are relinquishing all their rights and liabilities with respect to the assets of the continuing firm. It is, therefore, difficult to hold that the two documents are simply agreements of dissolution. The learned counsel for the petitioner drew my attention to the decision of the Supreme Court in Narayanappa v. Bhaskara Krishnappa (AIR. 1966 SC. 1300 ). The question that arose for decision in that case was whether the interest of a partner in the partnership assets comprising of movable and immovable property should be treated as movable and immovable property for the purpose of S. 17 (1) (c) of the Registration Act 1908. It was held that the interest of the partners of a family in the partnership assets was movable property and that the document evidencing the relinquishment of that interest was not compulsorily registerable. While discussing the nature of the rights held by a partner in the assets of the firm the Supreme Court observed as follows: "no doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence of the partnership, however, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to anyone. " It is not easy to understand how the above passage in the decision referred to by the learned counsel for the petitioner can resolve the dispute on hand. The passage extracted above may support a contention that there cannot be assignment of the rights of the partner in the assets of the firm during the subsistence of the partnership. But that is not the same thing as the relinquishment by a partner of his rights in the partnership concern. An analogy that can be usefully thought of in this connection is the case of a unilateral surrender by the member of a Hindu joint family of his rights over the properties of the joint family. In the case of the relinquishment of rights over the assets of a joint family the Madras High Court took the view that the instrument concerned was a release and should be stamped as such. (See 18 madras 233.) The principle enunciated with respect to the relinquishment of rights over joint family properties was applied by the Madras High Court with respect to a release executed by a partner relinquishing his rights over the assets of the firm. (See Board of Revenue v. Murugesa - AIR. 1955 Madras 641 ). After adverting to the decision in 18 Madras 233 the court observed as follows: "it was held that the instrument was a release, which should be stamped, as such. The learned judges observed that it was a deed by which one co-owner renounced his claim for partition against the family property in consideration of a certain income to be enjoyed by him for his life out of certain lands over which he has no power of alienation. We can see no difference in principle between such a document as between members of a comparcenary and the document in question, which is a document between co-owners. " It was held that the instrument executed by a partner and considered in that case was liable to be taxed under Art. 44 (b) of the Madras stamp Act. Considering the contents of the two documents involved in this case it has to be held that both of them are to be treated as releases; and as such liable to be taxed under Entry 47 of the Schedule to the Act. Entry 47 of the schedule may be read: "47. Release, that is to say, any instrument (not being such a release as is provided for by S. 24), whereby a person renounces a claim upon another person or against any specified property It is not seriously disputed that if the documents are releases it is sub-item (b) that applies. The result is that each one of these documents must bear a stamp duty of Rs. 12. 50 and also the usual penalty which is ten times the duty payable. It follows, therefore, that for each one of these documents the plaintiff has to pay a total stamp duty of Rs. 12. 50 and rs. 125/- as penalty. The plaintiff is given one month's time from this date to pay the stamp duty and penalty as directed above. The revision petition fails; and it is dismissed. No costs. . .;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.