M.H. Beg, J. - (1.) GULAB Chand Bangar, Petitioner No. 1, presented a deed for registration before the Sub -Registrar, Varanasi, on 6 -8 -1963, purporting to be a deed of relinquishment in favour of Smt. Sarju Devi, Petitioner No. 2, the grand daughter of Petitioner No. 1. The property in which Gulab Chand purported to relinquish his rights in favour of his grand -daughter had been purchased by him together with one Kanhaiyalal Jhanwar in 1943. It appears that the sale deed did not specify the shares in which the two co -sharers purchased the property, but the share was assumed to be half each Gulab Chand, Petitioner No. 1, alleged that the property was really purchased by his granddaughter through him. It was alleged that Petitioner No. 2 being the wife of a sufficiently well to do person, Girdhari Lal Dhaga of Calcutta, had enough funds of he own. It is also stated in the petition that the property was in the possession of Petitioner No. 2 since it was purchased and it was she who used to pay the land revenue. Petitioner No. 1, therefore, purported to execute a deed of release in favour of his grand daughter on a stamped document of the value of Rs. 50/ -.
(2.) THE Sub -Registrar, however, did not accept the case set up by Gulab Chand Bangar. He, therefore, impounded the document because, in his opinion, it was chargeable to a stamp duty as a gift and not as a deed of release. The Sub -Registrar relied on the sale deed of 1943 in favour of Gulab Chand Bangar and on the statement of Gulab Chand Bangar that the property had been held by him with the co -purchaser Kanhaiyalal as a co owner. He pointed out that as the shares of the co -owners were not defined in the property, the release could only be from the whole property and not from half of it. The Sub Registrar also pointed out a deed of release is defined Under Schedule I to Article 55 of the Stamp Act as "any instrument not being such a release as is provided for by Section 23(A) whereby a person renounces a claim upon another person or against any specified property." Section 23(A) has no application to this case. The Sub -Registrar stated, in a report made by him to the Collector that a transfer with consideration was a sale but one without consideration was a gift and that a release was neither as it does not involve a transfer at all. In his view, the document of alleged release, read in the light of the sale deed of 1943, constituted a transfer. Before the Collector, the Petitioner No. 1 denied that there was any question of a gift involved. He also asserted that the deed was one of surrender and could be so described in view of the legal opinion given to him and that it could also be a deed of relinquishment or release, under the provisions of Article 55, mentioned above. The Petitioners also said that there was no intention to evade stamp duty.
(3.) THE powers of the Collector, in dealing with impounded instruments, are given in Section 40 of the Stamp Act. This provides, inter alia, Under Section 40(1)(b), that if the document is not duly stamped the Collector may require payment of proper duty together with a penalty which shall not exceed ten times the amount of the proper duty or deficiency in it.;