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PETITIONER: SMT. SHANTY DEVIL. SINGH AND’ ANR.

       Vs.

RESPONDENT: TAX RECOVERY OFFICER AND ORS.

DATE OF JUDGMENT23/04/1990

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. AHMADI, A.M. (J)

CITATION:  1991 AIR 1880            1990 SCR  (2) 627  1990 SCC  (3) 605        JT 1990  Supl.  (3)   135  1990 SCALE  (1)65

ACT:     Indian Stamp Act, 1899: Sections 3 and 29(f) and  Sched- ule   1,  Article  18--Tax  Recovery  Sale--Certificate   of Sale--Whether  purchaser  of property liable  to  pay  stamp duty.     Registration   Act,   1908:  Sections   17(2)(xii)   and 89(4)--Tax  Recovery  Sale--Purchaser  of  Property--Whether required to get certificate of sale registered--Term  "Reve- nue Officer"--Whether includes Tax Recovery Officer.     Income  Tax Act,  1961/Income Tax (Certificate  Proceed- ings) Rules, 1962: Rule 21--Tax Recovery Sale--Purchaser  of Property-Whether required to get certificate of sale  regis- tered.

HEADNOTE:     The  appellants  purchased properties in  auction  sales conducted by the Tax Recovery Officer for recovery of income tax  and were issued sale certificates. Copies  of  certifi- cates were also sent to the SubRegistrar, as required  under Rule   21  of  the  Income  Tax  (Certificate)   Proceedings Rules---ITCP Rules. The appellants approached the  SubRegis- trar  for getting the properties registered in  their  names but the Sub-Registrar and the Collector of Stamps refused to do so unless stamp duty was paid on the certificate of sale. At  the appellants’ request, the Tax Recovery  Officer  also addressed  the two officers for getting the entries made  in the  Register on the basis of the copy of sale  certificate. He  also informed the Collector of Stamps that according  to the  legal advice given to him no stamp duty was payable  on the  certificate  of sale. However, no action was  taken  by either  of  the officers. The appellants’ request  to  Delhi Administration and Municipal Corporation to effect  mutation entries in the Corporation Register, was also not acceded to on  account of the appellants’ failure to pay  the  transfer fees,  leviable  as additional stamp duty  under  the  Delhi Municipal  Act. Therefore, the appellants filed  writ  peti- tions  before the High Court praying for directions  to  the respondents  to register the certificate of sale and  mutate the  property in the name of the appellants. The High  Court dismissed  the  petitions holding that, in  the  absence  of specific contract to the contrary, the liability to pay  the

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stamp duty was that of the purchaser. 628 Allowing the appeals by the purchasers, partly, this Court,     HELD:  1.  Under section 89(4), every  Revenue  Officer, granting  a  certificate of sale of  immovable  property  or public auction should send a copy of such certificate to the registering officer within the local limits of whose  juris- diction  the  whole or any part of  the  immovable  property comprised in such certificate is situate, and such register- ing  officer shall file the copy or copies, as the case  may be,  in  his  Book No. 1. So far as sales  for  recovery  of income-tax are concerned rule 21 of the ITCP Rules, makes  a like provision requiring the concerned T.R.O. to send a copy of  the certificate of sale to the registering officer  con- cerned. [632E-G]     There  is no need to read the term ’revenue officer’  in any restricted sense. It is wide and comprehensive enough to include  the  T.R.O. who effects a compulsory sale  for  the recovery  of an income-tax demand. The registration  officer has to act in terms of section 89(4) of the Indian Registra- tion  Act read with Rule 21 of the ITCP Rules and  file  the copy  of  the certificate of sale received by him  from  the T.R.O. in his Book No. 1. [633A-B]     2.  Section  17(2)(xii) of the  Registration  Act,  1908 makes  it  clear that the certificate of sale  issued  in  a court  sale or by a revenue officer does not need  registra- tion.  Though this provision, like section 89, relates  only to  a  certificate of sale granted to the purchaser  of  any property sold by public auction by a civil court or  revenue officer,  the certificate issued by the T.R.O. is also  cov- ered by this provision. It is, therefore, not obligatory  on the purchaser of property in a tax recovery sale to get  the certificate  of  sale  registered in order  to  perfect  his title.  However, if he presents the original certificate  of sale  to  the  Registration Officer  for  registration,  the Registration  Officer will have to comply with the  relevant statutory provision in this regard. [636F-H]     3.1 The Certificate of sale itself not being a compulso- rily  registerable  document: vide section  17(2)(xii),  the transfer of title in favour of the purchaser is not vitiated by the non-registration of the certificate. The copy of  the certificate  filed in Book No. 1 contains all  the  relevant details.  These details are reflected in the  indices  main- tained under section 55 which are open to inspection to  all persons.  These requirements are sufficient to  ensure  that any  person intending to purchase or deal with the  property is put on notice about the principal contents of the certif- icate of sale provided he inspects the relevant book  and/or index. [635A-C] 629     3.2  Therefore, in the instant case, all that  the  Sub- Registrar  is  required  to do is to file the  copy  of  the certificate  in Book No. 1 and no more. He does not have  to copy  out the certificate or make any other entries in  Book No. 1. [635C]     4.1 Under Sections 3, 29(f) and Article 18 of Schedule I of the Stamp Act, 1899 the liability to pay stamp duty is of the purchaser to the contrary can be spelt out. [635D]     In the instant case, the auction notice did not  promise any exemption from stamp duty. The Tax Recovery  Inspectors’ Manual which states that both the certificate and copies are liable  to  stamp duty, also renders it  unlikely  that  any promise  was  given by T.R.O. at the time of  sale  that  no stamp duty will be payable. However, the T.R.O.’s letter  to the Collector of stamps referring to the legal advice  given

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to  him strikes a some what inconsistent note. However,  the issue  of stamp duty is felt to be adjudicated upon  in  the normal course, as and when found necessary. [635E-G]     4.2  The  payability of municipal transfer  fee  depends upon  the payability of stamp duty. It will be open  to  the appellants  to contest this levy in other  appropriate  pro- ceedings. [637B]     5. The Sub-Registrar is directed to file the copy of the certificate  of sale received by him from the T.R.O. in  his Book No. 1 as required by section 89(4) of the  Registration Act read with Rule 21 of the IncomeTax (Certificate Proceed- ings) Rules, 1962. [637D]     Fatteh Singh v.Daropadi, [1908] Punj. Rec. Case No. 142; Sirajun-nissa  v. Jan Muhammad, 2 All. W.N. 51;  Masarat-un- nissa  v.  Adit  Ram, [1883] I.L.R. 5 All.  568  (F.B.)  and Premier  Vegetable  P.  Ltd. v. State, AIR  1986  M.P.  258. referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos. 1936  & 1937 of 1990.     From the Judgment and Order dated 26.7.1989 of the Delhi High Court in C.W.P. No. 852 of 1989 and 2852 of 1988. S.K.Mehta, Aman Vachhar and Atul Nanda for the Appellants.     S.C.   Manohanda,  Manoj  Arora, V.K.  Sharma  and  R.K. Maheshwari for the Respondents. 630 The Judgment of the Court was delivered by     RANGANATHAN,  J. After hearing counsel for all  parties, we grant special leave in these two petitions and proceed to dispose  of the appeals finally by this common order as  the point  involved  is a common one. We are  dealing  with  the matter at some length as it raises certain important aspects of the Stamp Act, 1899 and the Registration Act, 1908  which are likely to come up for consideration frequently.     Smt.  Shanti  Devi, the petitioner in SLP No.  15093  of 1989,  was  the highest bidder at an auction sale  of  house property  bearing No. A-205, Defence Colony, New Delhi  con- ducted  on 29.2.88 by the Tax Recovery Officer (T.R.O.)  for realising  the  income tax dues of its owner.  Her  bid  was accepted and the sale confirmed on 13.4.1988. On 14.4.1988 a certificate  of sale was issued by the T.R.O. to  the  peti- tioner. Under the relevant rules, a copy of the  certificate of  sale should have been endorsed to the Sub-Registrar  but it was actually sent to the Sub-Registrar on 12.5.1988.  The petitioner in SLP No. 138 of 1990 purchased property bearing No. 112-113, Gautam Nagar, Delhi at an auction conducted  by the  Income-tax department. A certificate of sale  in  their favour was issued on 23.5.1988. A copy of the sale  certifi- cate was forwarded by the T.R.O. to the Sub-Registrar.     The purchasers thereafter attempted to get the  property registered  by  the Sub-Registrar in their names.  The  Sub- Registrar and the Collector of Stamps did not accede to this request apparently on the ground that this could not be done unless  stamp duty was paid on the certificate of  sale.  On the petitioner’s request, the T.R.O. also addressed a couple of  letters to the Sub-Registrar and Collector which may  be referred  to  here. With his letter dated 12.5.1988  to  the former, the T.R.O. enclosed an extract from the Tax Recovery Inspectors Manual issued by the Income-Tax department  which reads as follows:          "After confirmation of sale of immovable property a certificate in form ITCP-20 will be issued. The original  of

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this sale certificate is liable for stamp duty and a further duty  of Rs.4.50 is also chargeable on the copy of the  sale certificate  to  be forwarded to  the  Sub-Registrar.  These charges (which may vary from State to State) are to be borne by the auction purchaser. The original sale certificate thus issued  will  be the title for the property and it  has  the same value as a sale deed and it does not require  registra- tion  by the purchaser. Thus the auction purchaser is  saved expenses of 631 registration etc. This office itself will send a copy of the sale  certificate  for registration to  the  concerned  Sub- Registrar for making necessary entries in his registers." (underlining ours) The Collector of Stamps was addressed directly by the T.R.O. on  29.9.1988 in relation to the Gautam Nagar  property.  In that  letter  the T.R.O. stated that he had  received  legal advice that no stamp duty was payable on the certificate  of sale.  The attention of the Collector was drawn to the  fact that  a  copy of the sale certificate had been sent  to  the Sub-Registrar  as required under Rule 21 of  the  Income-tax (Certificate  Proceedings) Rules--ITCP rules--which runs  as follows: "21.  Every Tax Recovery Officer granting a  certificate  of sale  to the purchaser of immovable property sold under  the second schedule shall send a copy of such certificate to the Registering Officer concerned under the Indian  Registration Act,  1908  ( 18 of 1908) within the local limits  of  whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate." The  Collector  was requested to  inform  the  Sub-Registrar accordingly  to  make  necessary entries  in  the  registers regarding  the auction sale of the above immovable  property on the basis of the copy of sale certificate sent to him.     Apparently,  no  further action was taken  by  the  Sub- Registrar or Collector in the matter and, hence, each of the petitioners  applied to the Delhi High Court  under  Article 226  of  the Constitution. The T.R.O.,  the  Collector,  the Sub-Registrar, Delhi Administration and the Municipal Corpo- ration of Delhi were impleaded as respondents. The petition- er prayed for a writ of mandamus or any appropriate writ  or order  or direction to the respondents to register the  cer- tificate of sale and mutate the property in the name of  the petitioner.  The  Delhi  Administration  and  the  Municipal Corporation were added as parties since they did not respond to  the petitioner’s request to effect mutation  entries  in the  Corporation  register,  presumably on  account  of  the petitioner’s failure to pay the "transfer fees" leviable  as additional  stamp  duty under the Delhi Municipal  Act.  The writ petition was dismissed at the stage of admission by the Delhi High Court. The learned Judges passed a short order to the following effect: "Under S. 29(f), read with Schedule I (Article 18) and S. 3 632 of the Stamp Act, the liability to pay the Stamp Duty is  of the  purchaser, unless there is a specific contract  to  the contrary in this regard. In this case the auction notice  is silent  as to who is to pay the Stamp Duty. In other  words, it  does not create liability for the Government to pay  the Stamp  Duty. Hence the general provisions of law  which  are quoted above would be applicable. Dismissed." Each  of the petitioners has thereupon, preferred this  spe- cial leave petition before this Court.     On  the above facts, three different and separate  ques- tions arise for consideration: (1) What is the action to  be

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taken by the SubRegistrar when the copy of a certificate  of sale is forwarded to him by the T.R.O.? (2) Is the vendee in a  sale  by the T.R.O. entitled to ask the  T.R.O.  to  make entries  regarding the transfer in his records on the  basis of  the copy of the certificate of sale sent to him  by  the T.R.O.?  (3)  What is the procedure to be  followed  by  the Sub-Registrar  when  the  original certificate  of  sale  is produced before him by the vendee?     The first of the above questions is directly answered by S.  89  of the Indian Registration Act, 1908.  This  section provides for the procedure to be followed in certain  situa- tions;  in  particular, in cases where  sales  are  effected either  by  courts under the Code of Civil Procedure  or  by revenue officers in pursuance of a revenue recovery certifi- cate. Under S. 89(2), every court granting a certificate  of sale  of immovable property under the Code of  Civil  Proce- dure,  1908,  shall send a copy of such certificate  to  the registering officer within the local limits of whose  juris- diction  the  whole or any part of  the  immovable  property comprised in such certificate is situate. Sub-section (4) of S.  89  makes a similar provision in  respect  of  immovable properties  sold by public auction by a revenue officer  who issues  a certificate of sale in pursuance of  the  auction. The  sub-sections further provide that when the copy of  the certificate of sale is so received, such "registering  offi- cer  snail file the copy or copies; the case may be, in  his Book No. 1." So far as sales for recovery of income-tax  are concerned, rule 21 of the ITCP rules, quoted earlier,  makes a  like provision requiring the concerned T.R.O. to  send  a copy  of :he certificate of sale to the registering  officer concerned. A doubt may arise whether the expression  revenue officer’  in  S. 84 (4) of the Registration Act  includes  a T.R.O.; and, if not, whether, without an appropriate  amend- ment  of S. 89 (2) or (4) of the Registration Act, the  mere framing of a rule by the Central Board of Direct Taxes under the Income-tax Act, 1961 will be 633 sufficient to oblige the registration officer to file a copy of the certificate of sale sent to him by the T.R.O. in  his Book  No.  1. In our opinion, there is no need to  read  the term  ’revenue officer’ in any restricted sense and that  it is  wide and comprehensive enough to include the T.R.O.  who effects a compulsory sale for the recovery of an  income-tax demand.  We are therefore clear that, in the  present  case, the registration officer has to act in terms of S. 89(4)  of the  Indian Registration Act read with rule 21 of  the  ITCP rules.  This is to file the copy of the certificate of  sale received by him from the T.R.O. in his Book No. 1.     This  takes  us  to the second question  as  to  whether filing of a copy of the certificate in Book No. 1 within the meaning  of S. 89 is tantamount to the registration  of  the document  under  the  Registration Act or it  is  a  totally different concept. The registration of a document under  the Act is conditional on the fulfilment of several requirements (Ss. 32 to 35). The document has to be presented for  regis- tration by a person competent to do so. The persons  execut- ing the document should appear before the Sub-Registrar  and admit  or deny execution of the document. The  Sub-Registrar may conduct an enquiry, where needed, to satisfy himself  as to  the proper execution of the document. He will decide  to admit  the document to registration only if he is  satisfied on  this.  What he has to do once he admits  a  document  to registration  is  laid down in Ss. 51 to 67.  First,  he  is bound to endorse full particulars and details of the  regis- tration on the document presented to him and also obtain the

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signature of every person presenting the document. He should then,  without delay copy the entire document in the  appro- priate book maintained for the purpose (which, in respect of non-testamentary instruments relating to immovable property, is Book No. 1). The entries in each book nave to be consecu- tively  numbered year-wise and corresponding entries  should be  contemporaneously  made in current indices to  be  main- tained in every office. The officer should affix his  signa- tures  to  the endorsements made in his  presence  and  then endorse a certificate on the document that it is  registered together  with the registration particulars which  shall  be signed,  sealed and dated by him. The document is  then  re- turned  to  the person presenting it for  registration.  The books  and indices are available for public  inspection  and certified copies thereof are to be given to parties applying for them. This, in brief, is the process of registration.     On the other hand, the process of filing that is contem- plated  under the Act is somewhat different though  the  Act does interchange 634 the  two expressions in some places. For instance, S.  51(2) itself refers to all documents or memoranda registered under section  89 being entered or filed in Book No. 1. But  there appear to be vital differences between the two processes: (i)  It  is the original of a document  that  is  registered whereas only copies or memoranda are filed; (ii)  The  executant of a document which is required  to  be registered,  has  to  present it  for  registration  and  go through  the  attendant and subsequent  processes  described above. A copy to be filed under s. 89 or memoranda that  are filed  under Ss. 64 to 66 is simply transmitted to the  con- cerned Sub-Registrar for being filed. Apparently, the proce- dure  of  presentation is dispensed with in  regard  to  the latter  because they are issued by public  authorities  dis- charging their official duties. (iii) Additional particulars relevant to a document admitted to registration need to be got endorsed thereon from time to time as contemplated in Ss. 58 and 59 but this rule does not apply to a copy or memorandum filed under the Act. (iv)  When  a document is registered, the  entirety  of  the document has to be copied out into the relevant book and the original  document returned to the person who  presents  the document  with necessary endorsements. This  requirement  is absent  in  the case of a copy or memorandum which  is  just filed. (v) Where a document is registered, a certificate of  regis- tration  has to be issued which will be admissible to  prove the due registration of the document.     There  are  thus some differences between the  two  pro- ceedures and this aspect has been touched upon in some  very early  decisions  under the Registration  Act,  1877:  vide, Fatteh  Singh v. Daropadi, [1908] Punj. Rec. Case  No.  142; Siraj-un-nissa v. Jan Muhammad, 2 All. W.N. 51;  Masarat-un- nissa  v. Adit Ram, [1883] I.L.R. 5 All. 568 (F.B.).  Refer- ence may also be made to Premier Vegetable P. Ltd. v. State, AIR  1986 M.P. 258. We need not, however, consider  for  the purposes  of this case whether filing and registration  mean one and the same thing for all purposes and’ what the  legal effect  of these differences is. For, though  the  processes are  different, the purchaser at a court or revenue sale  is under no disadvantage because of the lack of 635 registration.  The  certificate of sale itself not  being  a compulsorily  registrable document: vide s. 17(2)(xii),  the transfer of title in his favour is not vitiated by the  non-

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registration of the certificate. The copy of the certificate filed in Book No. 1 contains all the relevant details. These details are reflected in the indices maintained under s.  55 which  are open to inspection to all persons. (We may  point out here that S. 55(2) only refers to memoranda filed but it seems  clear,  particularly in the light  of  various  State amendments, that the index to Book No. 1 should also contain the  details  of  copies of document filed  by  him).  These requirements  are sufficient to ensure that any  person  in- tending  to  purchase or deal with the property  is  put  on notice  about the principal contents of the  certificate  of sale provided he inspects the relevant book and/or index. It is  sufficient to say, for the purposes of this  case,  that all  that  the Sub-Registrar required to do is to  file  the copy  of the certificate in Book No. 1 and no more. He  does not  have  to  copy out the certificate or  make  any  other entries in Book No. 1.     We now come to the last question and that is whether the certificate of sale is liable to stamp duty and, if so, what the  consequences are. The High Court has referred to s.  3, s. 29(f) and Article 18 of Schedule I to the Stamp Act. This provision  applies in the absence of a contract to the  con- trary.  Prima facie, therefore, the view taken by  the  High Court--and  there are other decisions also to the  same  ef- fect--is  correct unless a contract to the contrary  can  be spelt out. The auction notice did not promise any  exemption from stamp duty. The extract quoted earlier from the Depart- mental  Manual (viz. that both the certificate and copy  are liable  to  stamp duty) also renders it  unlikely  that  any promise  was  given by the TRO at the time of sale  that  no stamp  duty will be payable. However the T.R.O.’s letter  to the Collector referring to the legal advice obtained by  him strikes a somewhat inconsistent note. Even if there had been any such mention by the TRO or the auctioneer, the  question would arise whether it can be construed as a contract to the contrary  binding on the Union for the purposes of s.  29(f) of the Stamp Act. Sri Mehta requests that we may not now  go into  these questions but leave the issue to be  decided  as and  when  the petitioners seek to have the  certificate  of registration registered or introduced in evidence before any court  or  authority entitled to take evidence which  is  at present a remote contingency.     There are two provisions in the Stamp Act which  provide for the adjudication of stamp duty. Under s. 31, it is  open to  the executants of any document, at any stage but  within the  time  limit  set out in s. 32, to  produce  a  document before the Collector of Stamps and require him to 636 adjudicate on the question whether the document should  bear any  stamp duty. The Collector thereupon may adjudicate  the stamp duty himself or refer the matter to the Chief Control- ling Revenue Authority of the State. In turn, it is open  to the Chief Controlling Revenue Authority to refer the  matter to the High Court for an authoritative decision (Ss. 32  and 56).  This procedure could have been followed by  the  peti- tioners  if  they wished to seek an answer to  the  question whether the certificate of sale is liable to stamp duty  but they have not done it and the time limit under s. 32 has run out.  The other provision that may become applicable  is  s. 33. Under this section, if any document (and this includes a certificate  of  sale)  is presented to  the  Registrar  for registration  and the Registrar is of opinion that it  is  a document  which should bear stamp duty but that it  has  not been  stamped,  it is his duty to impound the  document  and send it on to the Collector of Stamps for necessary  adjudi-

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cation (s. 38). This contingency has also not happened.  The third  contingency,  also provided for in s. 33  is  when  a party wishes to rely upon the certificate of sale as a piece of evidence before a court or an authority entitled to  take evidence. Such court or authority will also have to  impound the document and shall not admit the same in evidence unless the  stamp  duty chargeable and the stipulated  penalty  are paid. This situation has not arisen so far but may arise  at some  time  in future. It is unnecessary to  anticipate  the same  and  decide the issue. We shall  therefore  leave  the issue  of  stamp duty to be adjudicated upon in  the  normal course,  as and when found necessary, and express  no  views thereon at this stage.     We  should,  however,  like to deal  with  a  contention raised in the grounds that even if the certificate of regis- tration  is sought to be presented for registration  by  the petitioners, the Sub-Registrar has no jurisdiction to refuse registration  on  the ground that the document  is  insuffi- ciently  stamped. As already pointed out, s.  17(2)(xii)  of the Registration Act makes it clear that the certificate  of sale issued in a court sale or by a revenue officer does not need  registration.  (Though  this provision,  like  s.  89, relates  only to a certificate of sale granted to  the  pur- chaser  of  any property sold by public auction by  a  civil court or revenue officer, for the same reasons as have  been set out earlier, we think that the certificate issued by the TRO  is also covered by this provision). It  is,  therefore, clear that it is not obligatory on the purchaser of property in a tax recovery sale to get the certificate of sale regis- tered in order to perfect his title. However, if he presents the original certificate of sale to the Registration Officer for  registration,  the Registration Officer  will  have  to comply  with the relevant statutory provisions in  this  re- gard. However this situation has not arisen as yet 637 and it is unnecessary to anticipate it and decide the point. We therefore do not express any opinion thereon.     This leaves for consideration the question in regard  to the  municipal  transfer fee. No details  have  been  placed before  us  on this issue. The payability of  the  municipal transfer  fee perhaps depends upon the payability  of  stamp duty but our attention has not been invited to the  relevant statutory provisions or their interpretation. The High Court has given no separate finding on this issue. We also express no  opinion  particularly since we are  not  expressing  any opinion on the question as to whether Stamp Duty is  payable on  the certificate of sale or not. It will be open  to  the petitioners  to contest this levy in other appropriate  pro- ceedings.     For  the  above reasons, we are of  opinion  that  these appeals  have  to be allowed in part. The  Sub-Registrar  is directed  to  file the copy of the certificate of  sale  re- ceived by him from the T.R.O. in his Book No. 1 as  required by  S. 89(4) of the Act read with rule 21 of the  Income-tax (Certificate  Proceedings) Rules, 1962. The petitioners  are entitled  to ask for nothing more. We express no opinion  on the  question  as  to whether any stamp  duty  or  municipal transfer fees are payable in respect of the original certif- icate  of  sale. The appeals are  accordingly  disposed  of. There will be no order as to costs. N.P.V.                                     Appeals   allowed partly. 638

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