# Raghvendra Jeet Singh v. Board of Revenue & Ors

- **Citation:** (2015) 1 ILRA 352
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-26
- **Case number:** Writ-C No. 33430 of 2012
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghvendra-jeet-singh-v-board-of-revenue-ors-43152
- **Pages:** 7

## Headnote

Act,
Art.-55
Schedule
I-BSurrender
of
title
and
interest-by
coparcener in favor of Karta of Joint
hindu family-whether can be termed
release
on
gift?-
held-'release'-each
coparcener having common interest and
title-can not be treated transfer-hence
treating gift deed demand of additional
stamp duty with penalty-held illegal in
view
of
Dharmapal
Case-petition
allowed.
Held: Para-36
In the facts of the present case, the
releasors together released 1/3rd share
(each having 1/9th share) in favour of
Karta and other co-parcener and not to a
particular co-owner, the property was
being held jointly and there was no
partition of the interest in the property
among co-owners, the document in
question would be a release deed and
not
conveyance
or
a
gift
deed.
1 All] Raghvendra Jeet Singh Vs. Board of Revenue & Ors.
353
Case Law discussed:
AIR 1984 Allahabad 107; 2009 (1) AWC 473;
(DHC) 2012-10-156; AIR 1998 Raj 348; AIR 1967
SC 1395; AIR 1979 SC 1395; AIR 1986 AP 42; AIR
2005 Bom 29; AIR 1998 Raj 223; 2009 (107) RD
438; (1985) 2 SCC 321:AIR 1985 SC 716; AIR
1958 SC 706:1959 SCR 479; (2007) 10 SCC 571;
(2000) 8 SCC 249.

## Text

352
 INDIAN LAW REPORTS ALLAHABAD SERIES
The High Court had appointed an arbitrator
in response to the petition filed by the
appellants (sic respondent). At this point, the
matter was closed unless further objections
were to be raised. If further objections were
to be made after this order, they should have
been made prior to the first arbitration
hearing. But the appellants had not raised
any such objections. The appellants therefore
had clearly failed to meet the stated
requirement to object to arbitration without
delay. As such their right to object is deemed
to be waived."
19. In our opinion, the obligations are
fully applicable to the facts of this case. The
appellant is deemed to have waived the right
to object with regard to the lack of
jurisdiction of the Arbitral Tribunal."
14.
Thus, in the facts and
circumstances of the case and in view of
the various decisions of Hon'ble Apex
Court, it is no longer open to the
petitioners, Union of India to challenge
that the award was without jurisdiction as
Shri Ashok Kumar, the Sole Arbitrator
had no jurisdiction to proceed with the
matter after his retirement.
15. In my opinion, except the aforesaid
ground, no other ground to challenge the
award and the judgements passed by the
Court below can be now raised. This Court
cannot sit in appeal over the decision of the
Arbitrator by examining and re-examining
the material and evidence before him.
Further, no challenge to the finding of facts
was made in the objections filed by the
Union of India before the Courts below.
Even otherwise apparently on the basis of
arguments findings have been recorded by
both the Courts below against the petitioners,
which in my opinion are not open to
challenge and cannot be re-appreciated under
Article 226 of the Constitution of India.
16. No other point is pressed by the
counsel for the petitioners.
17. In view of the aforesaid, the
petition lacks merit and is accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Writ-C No. 33430 of 2012
Raghvendra Jeet Singh
...Petitioner
Versus
Board of Revenue & Ors.
...Respondents
Counsel for the Petitioner:
Sri Triveni Shankar, Sri Ajay Shankar, Sri
Rajendra Kumar Pandey.
Counsel for the Respondents:
C.S.C.
Stamp
Act,
Art.-55
Schedule
I-BSurrender
of
title
and
interest-by
coparcener in favor of Karta of Joint
hindu family-whether can be termed
release
on
gift?-
held-'release'-each
coparcener having common interest and
title-can not be treated transfer-hence
treating gift deed demand of additional
stamp duty with penalty-held illegal in
view
of
Dharmapal
Case-petition
allowed.
Held: Para-36
In the facts of the present case, the
releasors together released 1/3rd share
(each having 1/9th share) in favour of
Karta and other co-parcener and not to a
particular co-owner, the property was
being held jointly and there was no
partition of the interest in the property
among co-owners, the document in
question would be a release deed and
not
conveyance
or
a
gift
deed.
1 All] Raghvendra Jeet Singh Vs. Board of Revenue & Ors.
353
Case Law discussed:
AIR 1984 Allahabad 107; 2009 (1) AWC 473;
(DHC) 2012-10-156; AIR 1998 Raj 348; AIR 1967
SC 1395; AIR 1979 SC 1395; AIR 1986 AP 42; AIR
2005 Bom 29; AIR 1998 Raj 223; 2009 (107) RD
438; (1985) 2 SCC 321:AIR 1985 SC 716; AIR
1958 SC 706:1959 SCR 479; (2007) 10 SCC 571;
(2000) 8 SCC 249.
(Delivered by Hon'ble Suneet Kumar, J.)
1. Mahendra Jeet Singh created H.U.F.
of immovable property, Banglow No. 15/198,
Civil Lines, Kanpur, during his life time in the
name and style "Mahendra Jeet Singh
H.U.F.". He died in 2002 leaving behind his
son petitioner KARTA of the H.U.F., Geeta
Mitthal (daughter), Rohan Singh (grandson),
Sunaina Shah (grand daughter) and Ratna
Singh (grand daughter) as heirs.
2.
Rohan Singh settled in Canada,
Sunaina at Kathmandum, Ratna Singh in
Bombay, since over 20 years and are
blood
relations
of
the
petitioner,
accordingly, executed a release deed on
19.04.2011 relinquishing their claim,
interest and title in the H.U.F. property.
3. The Sub-Registrar on 21.04.2011
declined
to
register
the
document,
accordingly, referred the instrument to the
Collector, stating that stamp duty of Rs.
500 has been paid, whereas, the deed
seeks to transfer the share of the coowners without consideration, in favour
of the petitioner, therefore is a gift within
the meaning of sub-section (14A) of
section 2 of the Act. Collector by order
dated 25.07.2011 assessed the property
under Article 33 of Schedule 1-B of the
Indian Stamp Act, 18991, accordingly,
determined the deficiency of stamp duty
at Rs. 1,13,74,710/-, penalty of Rs.
11,37,471/- and interest @ 1.5 per month
from
the
due
date
was
imposed.
Aggrieved, by the order passed of the
Collector Kanpur Nagar, petitioner preferred
revision before the Chief Controlling Revenue
Authority, which was dismissed by order
dated 28.05.2012. The revisional authority
was of the view that since the instrument is
covered within the definition of conveyance,
under sub-section (10) of Section 2 of the Act,
as amended on 01.08.1981, being transfer by
a co-owner of their share and interest to
another
co-owner
would
also
be
a
conveyance, thus affirming the order of the
Collector.
4. The petitioner is assailing the
orders dated 25.07.2011 and 28.05.2012
passed by the Collector and Chief
Controlling Revenue Authority.
5. I have heard learned counsel for
the parties and perused the record.
6. Sub-section (10) of Section 2
defines conveyance as follows:-
"(10) "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 1, Schedule 1A or Schedule 1-B]2, [as the case may
be]3"
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.
7. Explanation was inserted vide
U.P. Act No. 19 of 81 w.e.f. 01.08.1981.
354
 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Article 55 of the Schedule 1-B
defines "Release" which is as follows:-
"55. Release, that is to say, 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-
(a) if the amount or value of the
claim does not exceed Rs. 2,500
(b) in any other case."
9. Gift has been defined in subsection (14-A) of Section 2 which reads
as follows:-
"(14-A)
"Instrument
of
Gift"-
"Instrument
of
Gift"
includes
an
instrument whether by way of declaration
or otherwise, for making or accepting an
oral gift."
10. Article 33 provides for duty
payable on gifts. Article 33 is as follows:-
"Gift-Instrument of, not being a
Settlement (No. 58), or Will or Transfer
(No. 62)."
11. Having noted the provisions of the
Act, I proceed to examine the instrument and
the pleadings of the parties.
12.
Facts are not in dispute. The
instrument is titled release deed and recites
that the releasers, mentioned earlier, do
declare, relinquish and release all rights, title,
claims and interest which they might have or
had in H.U.F. be land and a Pakka
house/building thereon. Release was in
favour of the petitioner and Smt. Geeta
Mittal, the releasor namely Rohan Singh,
Sunaina and Ratna together were having
1/3rd share in the property (1/9th each). The
release is on free will and without any
consideration.
13.
The question, however, to be
determined is as to whether the coowners/co-parcener by relinquishing their
interest and title in the H.U.F. property to
another co-owner/co-parcener would fall
within the Explanation to the definition of
conveyance under section 2(10) of the Act.
14.

The
Explanation
was
incorporated on 01.04.1981, providing
that, where a co-owner of a property
having defined share therein, transfers
such share or part there of to another coowner of the property, is for the purpose
of the sub-section an instrument by which
the property is transferred.
15.
Earlier
interpreting
the
expression conveyance, as it stood prior
to 01.08.1981, a Full Bench of this Court
in Smt. Balwant Kaur and others Versus
State of U.P.4, held that a document
executed by one heir renouncing for
consideration his claim in the inherited
property in favour of other heir cannot be
construed as a deed of conveyance.
16.

After
the
amendment,
Explanation
to
Section
2(10)
was
incorporated, this court (Single Judge) in
State of U.P. Versus Dharam Pal and
another5, interpreting the Explanation
held that the co-sharers transferring their
share to another co-sharers-having preexisting right in property did not amount
to transfer, rather, it only amounted to
extinguishing of their existing share.
Since there was no transfer to an outsider
it
would
not
amount
to
sale
or
conveyance.
1 All] Raghvendra Jeet Singh Vs. Board of Revenue & Ors.
355
17. Sri P.K. Jain, Senior Advocate,
assisted by Sri Rajendra Kumar Pandey,
learned counsel for the petitioner, would
submit that the impugned orders are
without
application
of
mind.
The
document is a release document, does not
fall within the Explanation to the
expression of conveyance, the Collector
has valued the entire property of the
H.U.F., whereas, admittedly, only 1/3rd
of the property has been released, the
property,
being
a
nazul
property,
belonging to the State could not have
been sold and finally, the penalty could
not have been imposed as every fact had
been disclosed in the instrument, there
was no suppression of any material fact in
order to avoid payment of stamp duty.
18. Per contra, learned Standing
Counsel, Sri Nimai Das, would submit
that the instrument itself states that the
releasors are co-owners/coparcener of the
H.U.F. property, their share was released
in favour of the KARTA and other
coparcener, which would amount to
transfer falling within the Explanation to
Section 2(10), and is covered by the
judgment rendered in Sarla Agarwal
Versus Ashiwini Kumar Agarwal6 by the
High Court of Delhi.
19. Rival submission fall for
consideration.
20. The Collector was of the view
that since there is no consideration
mentioned in the instrument, therefore,
the instrument would fall under Article 33
of Schedule 1-B of the Act, being a gift,
whereas, the Chief Controlling Revenue
Authority was of the opinion that the
instrument would be covered under the
expression conveyance being a transfer by
a co-owner to another co-owner. In either
case, stamp duty is chargeable on the
value of the property.
21.
Formal renunciation of a claim
which the party relinquishing is entitled to
put forward is a release chargeable under
Article 55, whether the claim is legally
correct or not is not relevant. Where by a
document a person voluntarily renounces for
consideration
coparcenary
rights
of
succession to impartible estate it is a release.
There can be no release by one person in
favour of another, who is not already entitled
to the property as co-owner. Thus, by release,
there is no transfer of interest or title to
another person, who has no preexisting right
to such property. A release can, therefore, be
made in favour of a person who has a
preexisting right and interest in the property.
It would make no difference even where the
release is without consideration.
22. Where the property is owned by
two co-owners each having undivided
equal share therein and one of them by a
deed
claims
title
while
the
other
possession, the document would be a
release and not a conveyance. Even where
one of the co-sharers of the joint
agricultural land had simply renounced
his claim in favour of another co-sharer in
respect of the same agricultural land, the
document in question would be release
deed and not a gift deed. (Vide State of
Rajasthan Versus Alokik Jain7).
23. To distinguish between a release
deed, or a gift deed or a sale deed, the
decisive factor is the actual character of
the transaction and precise nature of the
rights created by the instrument. In the
case of co-owners each co-owner is in
theory entitled to enjoy the entire property
in part or in whole. It is not therefore
necessary for one of the co-owners to
356
 INDIAN LAW REPORTS ALLAHABAD SERIES
convey his interest to the other co-owner.
It is sufficient if he released his interest.
The result of such a release would be the
enlargement of the share of the other coowner. The result of such a release should
be the enlargement of the share of the
other co-owner. A release can only feed
title and cannot
transfer title. (Vide
Kuppuswami Versus Arumugam8, and
Kuppuswami
Chettiar
v.
S.P.A.
Arumugam Chettiar9)
24. A document under which a
Hindu coparcener purports to give up his
right to the family property in favour of
the remaining coparcener would not be a
deed of conveyance but a deed of release.
There is no difference in principle
between such a document as between
members of a coparcenary and as between
co-owners. In order to class as a release,
the executant of the instrument having
common or joint interest along with other
should relinquish his interest which
automatically results in the enlargement
of the interest and others. But where he
executes the document in respect of his
share in favour of a particular co-owner, it
cannot be treated as a release and must
come within the definition of conveyance.
(Vide Kothuri Venkata Subba Rao Versus
Deputy Registrar Gudur10).
25. A transaction to assume a
character
of
conveyance,
what
is
necessary is, transfer of interest from one
co-owner to another co-owner. As against
this, the provision of Article 55 of
Schedule 1B of the Act stipulates that the
release
is
that
whereby
a
person
renounces a claim upon another person or
against any specified property.
26. A similar provision as contained
in the Explanation to Section 2(10) of the
Act (section 2g of the Bombay Stamp
Act) came up for interpretation before the
Bombay High Court. In Sri Shailesh
Harilal Poonatar v. District Collector of
Stamps and others11, the Court held that
the co-owner having defined share or
undefined share in the property will make
no difference in order to be release.
"9. We are not impressed by the
argument of the learned counsel for the
respondents. Firstly because in every case
of a release it is the release of a share or
interest which is a defined share or
interest in favour of other co-owners or
persons who are holding a joint title in
respect of the said property. Even in the
case of Hindu Undivided property, every
co-parcener will have a defined share
which may not have been partitioned and
in our view this shall make no difference
whether a person is having a defined
share in the property or an undefined
share in the property as long as the
interest is held jointly and there is no
partition of the said interest among coowners. Thus, we find that even if there is
a defined share or interest in the property
it can still be released in favour of another
person. In such a case share or interest of
the other co-owner will be accelerated and
acquire a larger share than what he was
originally holding. In Mulla's Transfer of
Property, the word 'release' is explained as
under:-
"A
relinquishment
is
not
an
alienation".
(Refer: Gyan Chandra Versus State
and others12)
27. The Explanation to the definition
of conveyance under the Bombay Stamp
Act refers to 'share' whereas the Uttar
Pradesh amendment refers to 'defined
1 All] Raghvendra Jeet Singh Vs. Board of Revenue & Ors.
357
share', thus the co-owner should have a
defined share in the property which could
be transferred.
28.
From the record of the instant
case, I find that the release deed does not
transfer any defined share in favour of a
particular co-owner. The instrument merely
relinquishes the right and interest in the
property to the other co-owners. The
releasers though they are co-owners have
merely relinquished their right and interest
in the property in question, thus, enhancing
the share of the other co-owners and is not
transfer of interest from one co-owner to
another co-owner. The property in question
is held jointly and there is no partition of the
said interest among the co-owners, the
instrument could not fall within the
Explanation to the definition of conveyance.
Release can be with consideration or
without consideration. The document of
release, merely, being without consideration
would not qualify the instrument as an
instrument of gift, for gift there must be a
donor and a donee.
29. Under Section 3 of the Act, it is
the 'instrument' which is chargeable to
duty, and not the transaction. If the
instrument, as in the present case, cannot
be said to fall under the import of the
Explanation to section 2(10) of the Act,
the revenue authorities, on the basis of
their own assumed transaction cannot
impose stamp duty
30. Court in the case of Nand Kumar
Agarwal Versus State of U.P.13, observed
that:
"It is an acknowledged legal position
that there are two guiding principles for
applicability of the Stamp Act in respect
of a particular document. They are :(1)
The Court is not bound by the apparent
tenor of an instrument, it shall decide
according to the real nature or substance
of the document; and (2) The duty is on
the instrument and not on the transaction."
31.
While under the Mitakshara
Hindu Law there is community of
ownership and unity of possession of joint
family property with all the members of the
coparcenary, in a coparcenary governed by
the Dayabhaga law, every coparcener takes
a defined share in the property and he is the
owner of that share. But there is unity of
possession. The share does not fluctuate by
births and death. Thus as regards the
Dayabhaga law also the recognition of the
right to a definite share does not militate
against the owners of the property being
treated as belonging to a family. (Refer:
State of Maharashtra v. Narayan Rao14)
32. Where a coparcener expresses
his individual intention in unequivocal
language to separate himself from the rest
of the family, that effects a partition, so
far as he is concerned, from the rest of the
family. By this process, what was a joint
tenancy has been converted into a tenancy
in common. Tenancy-in-common means
that the share of each owner is specified
and on his death it devolves on his heirs.
A tenant-in-common is as to his own
share, precisely in the same position as an
owner of a separate property. The change
of status from a joint member of a
coparcenary to a separated member
having a defined share in the ancestral
property, may be effected orally or it may
be brought about by a document, so long
as there has been no partition in that
sense, the interest of the separated
member continues to extend over the
whole joint property as before. (Refer:
Nani Bai v. Gita Bai15)
358
 INDIAN LAW REPORTS ALLAHABAD SERIES
33.
Where the defendants acquired
(purchased) the undivided interest of the
coparceners in the joint property, it was held
that they did not acquire the title to any
defined share in the property and were not
entitled to joint possession from the date of
their purchase. They could work out their
rights only by a suit for partition and their
right to possession would date from the
period when a specific allotment was made
in their favour. (Refer: Subhodkumar v.
Bhagwant Namdeorao Mehetre16)
34.
Explanation to the definition of
conveyance requires a co-owner of property
having a "defined share", meaning thereby,
the Explanation will not cover those coowners who merely have a share in the
property and their share has not been
defined; as in the case of H.U.F. property,
every coparcener will have a definite share
and in my view this will make no difference
as long as the interest is held jointly and there
is no partition of the said interest among the
co-owners.
35. In H.U.F., the co-parceners do
not have exclusive rights on any specific
property of the family, the property
allotted to their share become specified
only on partition; same is the position in
the case of a partner of a firm, though the
co-parceners like partners of a firm have a
definite share in the H.U.F./partnership.
(Refer: Jagatram Ahuja Versus The
Commissioner of Gift Tax17)
36. In the facts of the present case,
the releasors together released 1/3rd share
(each having 1/9th share) in favour of
Karta and other co-parcener and not to a
particular co-owner, the property was
being held jointly and there was no
partition of the interest in the property
among co-owners, the document in
question would be a release deed and not
conveyance or a gift deed.
37. I see no reason to take a different
view as has been taken by this Court in
Dharam Pal case (supra).
38.
For the law and reasons stated,
herein above, the impugned orders dated
28.05.2012 passed by the first respondent,
Chief Controlling Revenue Authority/Board
of Revenue, U.P. at Allahabad and order
dated 25.07.2011 passed by the second
respondent,
Collector,
Kanpur
Nagar,
respectively, is quashed.
39. The writ petition is allowed with
cost.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2015
BEFORE
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE ANJANI KUMAR MISHRA,J.
Writ-A No. 35877 of 2014
Dr. Virendra Singh
...Petitioner
Versus
Banaras Hindu University, Varanasi &
Ors.
...Respondents
Counsel for the Petitioner:
In Person
Counsel for the Respondents:
Ajit Kumar Singh, S.C.
Constitution
of
India,
Art.-226-discontinuance of re-appointment-serious
allegations of sexual misconduct with
girl
student
of
4th
year
of
civil
engineering-three members committeesubmitted
detail
report
against
petitioner-allegations regarding violation
of natural justice-not available-held-no
detail
enquiry
required-considering