(1.) SENSMAL and his father and brother separated in October 1952, and a deed of partition was executed between them on the 11th of October 1952, on a stamp worth Rs. 229. This document was presented for registration before the Sub-Registrar, Jalor, on the same day. The Sub-Registrar came to the conclusion that there was a deficiency in stamp amounting to Rs. 531. He seems to have made a demand for the deficit stamp as well as for a penalty ten times the amount. It was then pointed out to him on behalf of the applicant that he had no such. authority and that all he could do was to impound the document under Section 33 (2) of the Stamp Act. Thereupon, the Sub-Registrar impounded the document and submitted it to the Collector under Section 38 (2) of the Act. The Collector, after hearing parties, ordered recovery of Rs. 531 as deficit stamp duty and, according to the applicant, this was done under Section 40 (1) of the Stamp Act. It is said that the applicant deposited the deficit stamp worth Rs. 531 as directed by the Collector and thereafter the Collector certified the document to be duly and properly stamped and forwarded it to the Sub-Registrar for registration. It is said that when this document was received by the Sub-Registrar along with the collector's certificate, he took steps for its registration. Before however, the document could be registered, the Inspector of Registration made an inspection and found that the earlier report of the Sub-Registrar that there was only deficiency of Rs. 531 was incorrect. According to the Inspector, the instrument was chargeable under Article 45 of the stamp Law. The Inspector was ,of the view, and we think rightly, that under that article, only one share and that the largest is exempt in the case of a partition deed and duty has to be paid on the remaining shares which are deemed to be the separated share or shares. In this case, the largest share was valued at Rs. 37,900. while two other shares were valued at Rs. 26,126 and Rs. 36,000 respectively. The duty should have been charged, therefore, on Rs. 62,126 and it worked out to Rs. 1,260. The Inspector thought that the previous Sub-Registrar was wrong in coming to the conclusion that the duty was only Rs. 760. He, therefore, ordered that this deficiency should also be realised. Thereupon, on the 13th of October 1953, a report was made again by the Sub-Registrar to the collector that further stamp duty of Rs. 500 over and above the deficit stamp of rs, 531 was due on the instrument. It was also reported that a penalty of Rs. 5,000 should be recovered from the executants. On receipt of this report, the collector of Jalor, who was by now a different person from the one who had passed the original order in December 1952, passed the following order :--"this office order dated 11-12-1952 be taken as cancelled and proceedings for recovery of the deficit amount be effected if warranted by law Returned with the above remarks. "
(2.) THEREAFTER, proceedings started for recovery of a further amount of Rs. 500 as deficit stamp duty and a sum of Rs. 5,000 as penalty. It is in conse quence of these proceedings that the present appli cation has been made and the applicant contends that the order of the Collector dated 11th of Decem ber 1952 was final and his successor had no authority to cancel it and that, in any case, it could not be cancelled without notice to the executants of the deed. . The application has been opposed on behalf of the State and it is being contended that the order passed by the Collector under Section 40 (1) (b) is not a final order and that even in spite of a certificate under Section 42 (2), it is open to the Sub-Registrar to question that order and certificate and make another report as was done in this case. The main question, therefore, that calls for determination is about the effect of the order of the Collector under Section 40 (1) (b) and the certificate under Section 42 (2 ).
(3.) WHEN the Collector receives an instrument under Section 38 (2), he proceeds under Section 40 to decide whether the instrument is sufficiently stamped or not, provided the instrument is not one chargeable with a duty of one anna or half anna. Section 40 does not specifically provide for notice to the executant of the document. But it is expected that the Collector, before he decides whether the instrument is properly stamped or not, would give notice to the executant so that he may put forward his point of View before the Collector, in case he desires to do so. Thereafter, the Collector after taking into account the report submitted by the impounding officer and any submissions of the executant, in case he appears in reply to the notice given to him, may come to one of two conclusions. He may come to the cqn-clusion that the instrument is duly stamped and is not chargeable with duty at all. In that case, under Clause (a) of Section 40 (1) he certifies by endorsement on the document that it is duly stamped or that it is not so chargeable. Thereupon, under Sub-section (2) of Section 40, such a certificate becomes conclusive evidence of the matters stated therein. On the other hand, the Collector may come to the conclusion that the document is deficiently stamped in which case under- Clause (sic) of Section 40 (1), he passes an order requiring the deposit of the proper duty or the amount required to make up the same together with a penalty. This penalty can either be a sum of Rs. 5 or any amount up to ten times the amount of the proper duty or of the deficient portion thereof. It is in the discretion of the Collector to decide whether to charge only Rs. 5 or any Sum up to ten times the proper duty or the deficient duty, if it is more than Rs. 5.;