- (1.) THIS revision petition has been filed on behalf of Sarvashri Kaluram, Nemchand, Nemi Chand and Nihalchand r/o Beawar against an order of the Collector, Ajmer, dated 28. 9. 1961 under which be ordered that the document produced for registration before the Sub-Registrar, Ajmer and referred to by the latter may be released after charging a surcharge duty of Rs. 210/- from the executants.
(2.) THE facts giving rise to this case are that a document purported to be a partition deed between the applicants who are members of the same family executed by Shri Kaluram and others, was presented for registration on 28. 3. 61. This document did not bear the surcharge duty leviable on non-judicial stamps as per Rajasthan Govt. Notification No. F. 13 (18) 4/18/14/61, dated the 9th March, 1961 and published in the Rajasthan State Gazette dated the 9th March, 1961 (Part III ). Under this Notification stamp duty was increased by a surcharge duty @ 30 np. per rupee. This document was presented before the Sub-Registrar, Beawar on the 28th March, 1961, when he refused to register the same on the ground of deficient stamp. Accordingly the document was impounded and referred to the Collector, Ajmer i. e. the District Registrar. The learned Collector after hearing the parties ordered that the document be released on payment of Rs. 210/- as the surcharge on stamp duty. It is against this order of the Collector, Ajmer, that this revision application has been filed before us. We have heard the learned counsel representing the petitioners as also the Government advocate and have gone through the record. The only point for determination before us in the light of the arguments of the counsel is whether the surcharge duty is leviable from the day on which the executants put their signatures on the document on the day on which it was submitted for registration. The following cases were cited before us by the learned counsel representing the petitioners: - (1) 1960 RLW Page 653 Rajasthan High Court Full Bench Decision. (2) I. L. R. 5 Madras 394. (3) Chitaleys Stamp Act page 373. It would be relevant here to estate that the date of the execution of the document has been shown as 7th January, 1961 and the date on which it was presented for registration is 23. 3. 61. It has been contended that on the date of execution of the document i. e. 7. 1. 1961 the Government Notification was not in force and hence the executants are not liable to pay the surcharge. For purposes of this payment it is the date of execution which is relevant and not the date on which the document was presented before the Sub-Registrar. Before we actually examine this aspect it would be worth while to examine the provisions of law in a greater detail. Court attention was drawn to the provisions of secs. 33 and 35 of the Indian Stamps Act and it was argued that Sec. 33 relates to the examination and impounding of instruments and sec. 35 deals with instruments being inadmissible in evidence in the event of their not being properly stamped. Sec. 33 of the Indian Stamps Act is in relation to examination and impounding of instrument. It reads as below: - " (1)Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of Police, before whom any instrument, chargeable, in his opinion, with duty is produced or comes in the performance of his functions, shall if it appears to him that such instrument is not duly stamped, impound the same. " For purposes of this case it was the Sub-Registrar before whom the document was presented and he referred the same to the Collector as he thought it was not duly stamped. The Collector in the exercise of his functions as the District Registrar impounded the document and ordered that it may be released after the payment of the surcharge duty. In appreciating the provisions of Sec. 3 3 and its applicability to the instant case we shall have to fall back on the definition of the words "chargeable" and "duly stamped". The word "charge able" has been defined in the definition clause of the Indian Stamps Act as below: - "chargeable" means, as applied to an instrument executed or first executed after the commencement of this Act, chargeable under this Act, and as applied to any other instrument, chargeable under the law in force when such instrument was executed or, where several persons executed the instrument at different times, first executed. " It is clear that the charge ability would depend on the date the instrument in question was first executed. This contention is further supported by a case cited on page 86 of the Indian Stamps Act of 1899 by Chitaley & Raos. It reads as below :- - "it appears to me that the levy of a penalty authorised under the proviso, on the admission of an insufficiently stamped document implies a punishment for neglect in failing to affix the proper stamp at the time of execution. There would be no justification for the levy of a penalty on account of the increased stamp duty leviable under the Act in force at the date of presentation over that leviable under the Act in force at the date of execution. " Thus it is seen that the word ''chargeable" as interpreted in the definition clause means chargeable on the date of execution and not presentation. Likewise if we examine the definition of the word "duly stamped, sub-clause (ii) of sec. 2 defines it as below: - "duly stamped" as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not Jess than the proper amount, and that such stamp has been affixed or used in accordance with the law for the time being in force. " It is clear from the above that proper amount of stamp duty required for an instrument has, therefore, to be determined in accordance with the Act in force at the time of execution or first execution of the instrument and not at the time when the document is tendered in evidence or produced for registration. From the above discussion it is clear that the instrument will have been duly stamped if it bears the stamp required under the law on the date it was executed. This date of execution has been clearly defined in the definition of the word "chargeable". Obviously, therefore, the contention of the petitioner that the date of presentation of the document cannot be reckoned as the date on which such surcharge can be levied holds good. On the 7th of January, 1961, when this document was executed it should have stamps as required on the date and we, therefore, hold that the learned Collector, it appears while interpreting the case law cited in I. L. R. 6 Madras page 204 ignored the provisions of the Indian Stamps Act. We have carefully examined this case as also the opinion of the Collector about the pronouncement contained in I. L. R. 5 Madras Page 394. In this case which arose out of a reference made by the Board of Revenue to their Lordships Justice Innes and Justice Muttu-sami Ayyar were of the opinion that to determine whether any penalty is due upon the document executed prior to the Act it is necessary to look to the Act in force at the date of execution of the instrument in order to see whether the document was duly stamped and what is chargeable as duty wholly unpaid or as deficient duty. In our opinion this judgment reported in I. L. R. supports the contention of the petitioner and the surcharge ordered could not have been levied as the document was executed on 7. 1. 61. The learned Collector has not held that it was not executed on that date. The Government Advocate has also conceded to the interpretation discussed above and agreed that the question whether an instrument is duly stamped must be determined with reference to the law in force at the time when the instrument is executed because it is under such law that the instrument becomes chargeable with duty. Another Full Bench decision given by the Rajasthan High Court it seems was not produced before the Collector by the counsel representing the appellants. In Nanga Vs. Dhannalal (203) reported in R. L. W. 1961 page 653 - it was held by the Full Bench of the Rajasthan High Court as below: - "i may observe at the very outset that the view taken by the learned Civil Judge is not correct. The proper amount of duty required for an instrument is to be determined according to the law in force at the time of the execution of the instrument and not when it is tendered in evidence. The learned Civil Judge was in error in holding that the law in force at the time when the admissibility of the document is called in question will govern the case. " From this pronouncement as also the views brought out in this case by the Full Bench of the Rajasthan High Court it is clear that the stamp duty on a particular instrument can be charged only as it was chargeable on the date of execution. In view of the discussion and interpretation given above we are of the opinion that the order of the Collector needs to be interfered with. Accordingly the appeal of Shri Kaluram Hemchand and others is accepted and the order of the Collector dated 28. 9. 61 holding that the stamps be released on payment of Rs. 210/- is set aside. . ;