A. Gift deed -- Deficiency in stamp duty – Penalty for -- Post-dated cheques – Acceptance of – Although deficiency of stamp duty was deposited through the Treasury Challan but the penalty was not deposited and only post-dated cheques were submitted -- High Court has rightly observed that facility to deposit the penalty by post-dated cheques cannot be approved.

(Para 16)

B. Gift deed -- Deficiency in stamp duty – Penalty for -- Subsequent purchaser – Liability of – Appellant being subsequent purchaser was liable to deposit the amount of penalty which was outstanding against the property and which was subject matter of the gift deed.

(Para 16)

A. Indian Stamp Act, 1899 (2 of 1899), Section 40(1)(b) – Penalty of 10 times of the duty -- Power of -- Expression “an amount not exceeding ten times” is preceded by expression “if he thinks fit” -- Statutory scheme, thus, vest the discretion to the Collector to impose the penalty amount not exceeding ten times -- Whenever statute transfers discretion to an authority the discretion is to be exercised in furtherance of objects of the enactment -- Discretion is to be exercised not on whims or fancies rather the discretion is to be exercised on rational basis in a fair manner -- Amount of penalty not exceeding ten times is not an amount to be imposed as a matter of force -- Neither imposition of penalty of ten times under Section 40(1) (b) is automatic nor can be mechanically imposed.

(Para 17)

B. Indian Stamp Act, 1899 (2 of 1899), Section 40(1)(b) – Penalty of 10 times of the duty – Nature of – Power of -- Purpose of penalty generally is a deterrence and not retribution -- When a discretion is given to a public authority, such public authority should exercise such discretion reasonably and not in oppressive manner -- Responsibility to exercise the discretion in reasonable manner lies more in cases where discretion vested by the statute is unfettered -- Imposition of the extreme penalty i.e. ten times of the duty or deficient portion thereof cannot be based on the mere factum of evasion of duty -- Reason such as fraud or deceit in order to deprive the Revenue or undue enrichment are relevant factors to arrive at a decision as to what should be the extent of penalty under Section 40(1)(b).

(Para 21)

Registration Act, 1908 (16 of 1908), Section 17(2)(v) – Indian Evidence Act, 1872 (1 of 1872), Section 115 -- Memorandum of family settlement for immovable property – Registration of – Requirement of –Estoppel -- Family settlement was arrived at in 1970 and also acted upon by the concerned parties – Document dated 10.3.1988 executed between the parties was merely a memorandum of settlement – It was not required to be registered -- In any case, contesting defendants were estopped from resiling from the stated arrangement in the subject memorandum, which had recorded the settlement terms arrived at in the past and even acted upon relating to all the existing or future disputes qua the subject property amongst the (signatories) family members despite absence of antecedent title to the concerned property.

(Para 16-19)

Court Fees Act, 1870 (7 of 1870), Section 7(V)(a) -- Cancellation of agreement to sell – Ad valorem fees -- Plaintiff-petitioner is claiming cancellation of the agreement to sell and where, being an executant of the agreement to sell, he is seeking cancellation of the agreement, he would be required to pay ad valorem court fee -- By changing the phraseology from ''Cancellation'' to ''infructuous'', he cannot escape the payment of ad valorem court fees.

(Para 12, 13)

Indian Stamp Act, 1899 (2 of 1899), Section 47-A(3) – Registered Sale deed – Deficient stamp duty – Limitation -- Audit objections were taken by the auditors well within the period of three years, however demand of deficient Stamp Duty after 3 years -- Impugned demand/orders set aside.

(Para 1-4)

A. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 -- Family settlement – Nature of relations -- For the purpose of family settlement, the family is not to be narrowly construed -- For the purpose of family settlement, the family is to be considered as a larger family and even if one member of the family is not closely related that would not make a family settlement bad in the eyes of law.

(Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Order 12 Rule 6 – Registration Act, 1908 (16 of 1908), Section 17 -- Family settlement – Compromise judgment and decree – Registration – Requirement of -- Judgment and decree is not an instrument of transfer of the property -- A judgment and decree acknowledging family settlement which had been arrived at before the filing of the suit is passed on the basis of consent of the parties under Order 12 Rule 6, Civil Procedure Code, 1908 -- Once the judgment and decree is not instrument of transfer, it does not require registration.

(Para 13)

C. Registration Act, 1908 (16 of 1908), Section 17 -- Indian Evidence Act, 1872 (1 of 1872), Section 101, 114 -- Registered sale deed – Disputing payment before Registrar -- Challenge to -- Registered sale deed has a presumption of correctness and the onus is very heavy on the plaintiff to prove otherwise -- Plaintiff has failed to prove that there was no payment – A sale deed cannot be set aside on the ground that the payment of the sale consideration is not before the Sub-Registrar.

(Para 15,16)

Registration Act, 1908 (16 of 1908), Section 17(2)(vi) -- Compromise decree – Registration of – Requirement of -- Any decree or order of a Court does not require registration unless it falls in the excepted category as specified in Section 17 (2)(vi) of the Act of 1908 – Appellants were party to the litigation -- It has not been shown that the compromise decree was not subject matter of the previous litigation (suits) – In absence thereof, the judgment and decree on the basis of compromise, correctness whereof is not disputed, was not required to be registered.

(Para 10)

A. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 – Compromise arrived – Adjournment in case – Effect of -- No doubt, first proviso to Rule 3 of Order 23 of the Code of Civil Procedure provides that the court shall decide the question about the compromise on the same day and no adjournment shall be granted but there is no absolute bar for grant of such adjournment -- Delay of more than 10 years in disposal of the appeal – No subsequent development which makes the compromise inequitable or impossible on account of delay -- Inaction on the part of the court cannot be made ground to deprive fruits of a valid settlement arrived at between the parties.

(Para 26)

B. Indian Contract Act, 1872, Section 10 -- Deed of compromise – Validity of -- Deed of compromise is a contract between the parties can be unlawful only as per the provisions of the Contract Act.

(Para 35)

C. Registration Act, 1908 (16 of 1908), Section 17(2)(vi) – Compromise decree dealing with immovable property – Compulsorily registration – Requirement of -- Deed of compromise even if dealing with the immovable property which subject matter of litigation does not require registration.

(Para 37)

D. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 – Compromise between some of parties – Permissibility of -- Compromise can be between some of the parties to the litigation or a part of the dispute involved -- 3rd proviso to Rule 3 of Order 23 as applicable to the State of Punjab, Haryana and Union Territory of Chandigarh uses the words “all the parties” but however that proviso deals with the adjournment -- The words “all the parties” has not been used in the main provision, therefore, proviso cannot be read in a manner to give a different meaning to the main provision.

(Para 40)

E. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 – Compromise deed – Validity of -- Once a compromise deed is alleged by one party and denied by other party, the court shall decide the question – Compromise deed is in writing, signed by the parties who are educated belonging to affluent families represented by senior counsels -- Not the allegation that compromise deed is either not signed or is result of misrepresentation -- Party No.1 has already received the payment as agreed to under the deed of settlement/compromise deed -- Hence, no further enquiry is required.

(Para 45)

F. Code of Civil Procedure, 1908 (V of 1908), Section 2(12), Order 20 Rule 12 – Mesne profit – Co-sharer – Right of -- A co-sharer cannot be held to be in unauthorised possession and hence he is not liable to pay mesne profit.

(Para 65)

G. Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2, Section 12 – Barring of subsequent suit -- Cause of action – In the present suit, plaintiffs have pleaded a cause of action which arose after the death of ‘JK’ -- Such cause of action was not available when previous litigation was filed -- Present suit is for resolving the dispute inter-se between the legal heirs of ‘JK’ on the basis of registered Will, which was not the cause of action in the previous suits -- Hence, bar under Section 12 or under Order 2 Rule 2 CPC would not be attracted.

(Para 78)

H. Sale of undivided specific share – Effect of -- Any sale or alienation made by a co-sharer even if with respect to land comprised in specific khasra numbers would ultimately be sale of an undivided share from the joint property.

(Para 86)

I. Sale of undivided specific share – Protection of Possession – Right of -- Once a co-sharer has put his subsequent vendee in possession of the property may be of undivided share, the vendee is entitled to protect his possession subject to partition.

(Para 87)

J. Indian Succession Act, 1925 (39 of 1925), Section 63(c) – Will – Execution of -- On careful reading of Section 63(c) of the Succession Act, it is apparent that Section 63(c) can be divided into 3 parts.

--     First part deals with attestation of the testament by 2 or more witnesses, each of whom has seen testator signed or affixed his mark to the Will;

--     or has seen some other persons signed the Will in the presence and by directions of the testator:

--     or has received from the testator a personal acknowledgement of his signature or mark or the signatures of such person and each of the witness shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.

(Para 92)

K. Indian Succession Act, 1925 (39 of 1925), Section 68 – Will -- Testament signed by other – Effect of -- Whenever the testament is signed by some other person and not by the testator, it is mandatory that some other person has signed the testament in the presence and by the directions of the testator -- In such circumstances, it is necessary to prove that the testament was signed in the presence and by direction of the testator.

(Para 93)

L. Indian Succession Act, 1925 (39 of 1925), Section 68 – Will – Execution of – Proof of -- One attesting witness who has been examined is required to testify that the testator signed in the presence of both the witnesses and attesting witness signed in the presence of the testator.

(Para 93)

M. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Will – Attestation of -- Registration of -- Execution and attestation of the Will by the testator and two attesting witnesses is separate than the act of getting the same registered -- Some time there can be a gap of few days in between the execution and attestation of the Will by the attesting witnesses and registration of the Will – Registration of the Will is a separate independent act which is only optional -- Registration of the Will is not mandatory.

(Para 100)

N. Indian Succession Act, 1925 (39 of 1925), Section 68 -- Will -- Validity of -- Will is to be examined with reference to the status of the parties and their expected exposure to the world – Testament has not been executed in favour of stranger but in favour of her son and other heirs -- Testator had bequeathed the property in favour of his two sons, daughter, grand children from the sons and some of the grand children from the daughter -- Hence, the testament cannot be said to be unnatural -- Some difference in the share granted to each of the heir cannot be treated with suspicion.

(Para 102)

A. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (d) – Constitution of India, Article 141 -- Plaint to be barred by any law -- Rejection of plaint -- Expression “law” occurring in Order 7 Rule 11 (d) includes judicial decisions of the Hon’ble Apex Court -- The authoritative pronouncement of the Hon’ble Apex Court is the law of land -- The law declared by Hon’ble Apex Court under Article 141 of the Constitution of India is law of land -- Law includes not only legislative enactments but also judicial precedents.

(Para 6)

B. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Article 17(iii), Section 7 (iv)(c) -- Non-executant of deed in possession – Challenge to Transfer deed – Ad-valorem court fee -- If a non-executant who is in possession of the property seeks to get the document annulled, then he is required to pay Court as per Article 17(iii) of the Second Schedule of the Act.

(Para 9)

C. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Section 7 (iv)(c) -- Non-executant of deed not in possession – Challenge to Transfer deed – Ad-valorem court fee – If the non-executant who is not in possession of the property and he seeks not only the declaration of the instrument to be invalid, but also seeks possession thereof, then he is required to pay ad valorem Court fee as per market value under Section 7(iv) (c) of the Act.

(Para 9)

D. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Section 7 (iv)(c) -- Non-executant of deed in possession – Challenge to Transfer deed – Ad-valorem court fee -- Suit for declaration to the effect that he is owner in possession of the suit property -- Transfer deed was claimed to be sham transaction and was not binding upon the right and title of the plaintiff -- Permanent injunction was also sought, restraining the defendant from dispossessing the plaintiff – Transfer deed under challenge in the suit does not show any consideration -- Plaintiff is not required to pay ad valorem Court fee.

(Para 2, 10)

Indian Stamp Act, 1899 (2 of 1899), Section 47-A -- Exchange/Transfer deed – Deficient Stamp duty – Reference of – Competence of -- Transfer deed was handed over to the petitioners and mutation had been also sanctioned in their favour -- During registration process, no objection regarding deficiency of Court fee/registration fee was raised -- After more than 7 months of the registration of the transfer deed, Sub Registrar made a reference to the Collector for recovery of alleged deficient stamp duty on the said transfer deed – Keeping in view the facts and the law laid down by this Court in Zile Singh's case, 2016(1) L.A.R. 708, reference made by Sub-Registrar, order passed by Collector and Commissioner are set aside.

(Para 5-7)

A. Court Fees Act, 1870 (7 of 1870), Section 7 -- Sale deed – Challenge to – Ad-valorem court fees -- If the plea for cancellation of sale deed, executed as a result of fraud and therefore void and not binding on the plaintiff, the same does not convert the suit into one for declaration with the consequential relief of possession so as to fall within the ambit of Section 7 (iv) (c) of the 1870 Act.

(Para 16)

B. Court Fees Act, 1870 (7 of 1870), Section 7 -- Declaration suit -- Ad-valorem court fees -- In a suit for mere declaration without any consequential relief, the Court fee payable is under Schedule II Article 17 (iii) of the 1870 Act.

(Para 18)

C. Court Fees Act, 1870 (7 of 1870), Section 7 -- Agricultural land -- Ad-valorem court fees -- In a suit for declaration and possession of agricultural land the plaintiff has to pay market value ten times the land revenue applicable to the suit land.

(Para 19)

D. Court Fees Act, 1870 (7 of 1870), Section 7 -- Sale deed – Challenge to – Ad-valorem court fees -- When the compromise is read two things become apparent that possession of the suit land already passed to the defendants and secondly, if any party resiles from the compromise or does not fulfill its terms then the sale deeds executed will be cancelled -- Compromise contemplates litigation by breach of terms of the compromise and, therefore, substantive relief sought in the plaint is for cancellation of sale deed and mere assertion that plaintiff is in joint possession is not sufficient for the purposes of valuation of suit for purposes of court fee and accordingly Article 1 Schedule 1 of the 1870 Act will be applicable which requires affixation of ad valorem court fee on the plaint.

(Para 26)

E. Court Fees Act, 1870 (7 of 1870), Section 7 -- Sale deed – Challenge to – Ad-valorem court fees -- Hidden relief sought by the plaintiff in both the cases is annulment/cancellation of registered sale deeds and the plaintiff being executant of the sale deeds is required to pay ad valorem court fee as per the value of the sale deeds.

(Para 27)

A. Code of Civil Procedure 1908 (V of 1908), Order 7 Rule 11 – Limitation -- Rejection of plaint -- Question of limitation is certainly a mixed question of law and facts as the plaintiffs are emphatically claiming that the suit was well within time --  Undoubtedly, the suit has not been found barred by any provisions of law -- So far as the issue of limitation is concerned, the learned trial court shall be deciding the same after appreciating the evidence to be led by both the parties – Trial court dismissing the application – Order upheld.

 (Para 1,4,11)

B. Code of Civil Procedure 1908 (V of 1908), Order 7 Rule 11 – Ad valorem fees -- Rejection of plaint -- Neither any of the parties nor the learned trial court was in a position to pin-point any specified amount as on date for which the plaintiffs would be entitled to recover from the defendants -- Once the amount is yet to be determined, plaintiffs were well justified in abovesaid part to say that the actual amount which will be found due from the defendants will be settled at the time of passing of final decree – Trial court dismissing the application – No error of law, while passing the impugned orders and the same deserve to be upheld.

(Para 1,4,12, 22)

C. Constitution of India, Article 227 – Code of Civil Procedure 1908 (V of 1908), Order 7 Rule 11 – Ad valorem fees – Revision by defendant – Maintainability of -- No revision petition before High Court would be maintainable at the hands of the defendants, unless the question of court fee involves the jurisdiction of court -- It is so said, because the issue of court fee, including its alleged inadequacy, would be primarily between the plaintiffs and the State – Defendants cannot be permitted to stall the progress of the suit before the learned trial court, because it is not going to suffer any kind of prejudice due to alleged inadequacy of court fee paid by the plaintiffs.

(Para 23,24)

A. Court Fees Act, 1870 (7 of 1870), Section 7 -- Sale deed – Suit for declaration – Ad-valorem court fees -- Plaintiff is non-executant of the sale deed -- A non-executant is not required to file a suit seeking cancellation of the document but he can maintain a suit for declaration that such sale is not binding on his rights.

(Para 4)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Constitution of India, Article 227 -- Court Fees Act, 1870 (7 of 1870), Section 7 -- Sale deed – Suit for declaration – Ad-valorem court fees -- Payment of court fee is a question which is primarily between the plaintiff and the State -- Revision petition at the hands of defendants is not maintainable against the order passed by the trial court dismissing application under Order 7 Rule 11 CPC.

(Para 5)

Indian Stamp Act, 1899 (2 of 1899), Section 2(10),2(24),47-A -- Conveyance deed – Settlement deed – Registration of -- Conveyance includes “conveyance of sale” and includes “instrument of transfer inter vivos” i.e. the transfer by a person during his life time of his movable and immovable property, whereas the “settlement” is for distributing the property of the settler amongst his family members – There is a different yardstick for charging the duty in the case of “conveyance” and “settlement -- Matter is remitted back to decide, whether the instrument is “conveyance” or a “settlement” and as to what amount is chargeable towards duty.

 (Para 14, 15)

Indian Stamp Act, 1899, Article 23 (2 of 1899) (As amended by Haryana Act 1 of 2004), Article 23 – Deficient stamp duty -- In pursuance to the agreement to sell possession has been handed over, agreement do not require registration – Impugned order, whereby application filed by the defendant treating the agreement to sell to be conveyance deed, plaintiff has been called upon to pay the deficiency of the stamp duty of Rs.1,64,900/- including penalty is set aside.

(Para 1-4)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Specific Relief Act, 1963 (47 of 1963), Section 20 -- Court Fees Act, 1870 (7 of 1870), Section 7(iv)(a) -- Suit for specific performance – Rejection of plaint -- Subsequent vendee filed counter claim for possession – Advalorem court fee – Requirement of – Suit for possession of land where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed permanently to such revenue, then the amount of court fee shall be computed on 10 times of the revenue so payable -- Accordingly for the relief of possession the claimant was required to pay advalorem court fee on 10 times of the land revenue of the suit land -- Term “land” is not defined anywhere in the Court Fees Act -- It should, therefore, be incorporated in the ordinary sense and cover all kinds of land regardless of the use to which it is put or may be likely to be put – Application for rejection of plaint rightly dismissed.

(Para 11-13)