Bharati Sapru - (1.) -Heard learned standing counsel for the petitioner State, Sri S. K. Mehrotra and Sri Vipin Sinha appearing on behalf of the respondents.
(2.) THESE two writ petitions arising out of the similar controversy are being decided by a common order treating the Writ Petition No. 15189 of 2006 as the leading writ petition. The Writ Petition No. 15189 of 2006 has been filed by the State against the judgment and order passed by the Chief Controlling Revenue Authority dated 28.7.2004 by which he has set aside the order of Collector passed under Section 47A of the Indian Stamp Act, by which he had imposed stamp duty on the respondents by coming to the conclusion that the release deed dated 7.6.2002 was not a release deed but was a conveyance and stamp duty was attracted on it, as provided in the Explanation to sub-section (10) of Section 2 of the Indian Stamp Act taking into consideration the said Explanation clause inserted by U. P. Act No. 19 of 1981 which reads as under : "2 (10) Conveyance.-'Conveyance' includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos, and which is not otherwise specifically provided for by Schedule-I, Schedule-IA or Schedule-IB, as the case may be. Explanation.-An instrument whereby a co-owner of a property having defined share therein, transfers such share or part thereof to another co-owner of the property, is, for the purposes of this clause an instrument by which property is transferred." The contention of the learned standing counsel is that the release deed dated 7.6.2002 was not a release deed but was a conveyance within the meaning of Section 2 (10) Explanation because the co-owner had parted with the share in the property for consideration.
(3.) LEARNED counsel for the respondents has argued that the instrument dated 7.6.2002 was nothing but a release deed made by two co-sharers to other co-sharers who had existing right in the property and it was simply an extension of their existing share and no stranger had been admitted to the property. Therefore, it did not amount to a transfer of the property at all and the release deed would be covered by the Full Bench decision of this Court in the case of Balwant Kaur v. State, AIR 1984 All 107. Learned standing counsel has strenuously argued that the instrument which was subject-matter in the case referred to Full Bench of this Court was of the year 1970 whereas the Explanation to Clause (10) of Section 2 of Indian Stamp Act was added by way of Amending Act No. 19 of 1981 applicable with effect from 1.8.1981.;