Purnima Bhanuprasad Gohil v. State of Maharashtra

1. This petition under Article 227 of the Constitution of India is filed challenging an order passed by the Appellate Authority dated 6th December 2013 and order passed by Collector of Stamps dated 28th August 2012 refusing to register the document titled as “Family Partition of Assets Settlement Deed” (“Settlement Deed”) on the ground that the said Settlement Deed was executed on 20th December 2011 and the document has been lodged for registration on 16th November 2012, which is beyond the period of 4 months provided under Section 23 of the Registration Act, 1908 (“the Act”). Brief Facts:-

2. The genesis of the present petition arises out of a matrimonial dispute, between Petitioner and her husband, which landed before the Family Court. Petitioner and her husband decided to settle the dispute between themselves and, therefore, executed a Family Partition Of Assets Settlement Deed on 20th December 2011. As per the Settlement Deed, husband of the Petitioner was to transfer to Petitioner and their son two flats. A joint application was made before the Family Court on 22nd December 2011 to keep the original Settlement Deed in its custody till in the parties comply with the duties and obligation under the consent terms. 2 of 9

3. On 27th January 2012, Petitioner and her husband informed the Family Court that both the parties have complied with their respective obligations under the Settlement Deed and the Family Court may pass the decree in terms of said Settlement Deed. Pursuant to the said request, on 17th February 2012, decree of divorce came to be passed by the Family Court.

4. Since the decree in terms of the Settlement Deed involved immovable properties of two flats, Petitioner on 6th June 2012 lodged the copy of said decree and Settlement Deed with the Superintendent of Stamps for determination of stamp duty payable on the said document. The Stamp Authority processed the said application and on 28th August 2012 determined the stamp duty payable on the Settlement Deed by arriving at a figure Rs.2,29,450/- and penalty of Rs.27,534/-. The said two amounts were duly paid by Petitioner on 30th August 2012. On 12th September 2012, Petitioner made an application to the Family Court for return of original Settlement Deed dated 20th December 2011 for affixing the requisite stamps under the Bombay Stamp Act. The original document duly stamped were delivered on 13th September 2012 and Petitioner on 16th November 2012 lodged the Settlement Deed for registration.

5. On 17th December 2012, the authorities refused to register the document on the ground that the Settlement Deed is dated 20th 3 of 9 December 2011 which has been lodged for registration on 16th November 2012 and, therefore, same is lodged beyond period of 4 months provided under Section 23 of the Act. The said order was challenged by filing a writ petition before this Court. However, this Court relegated the Petitioner to alternative remedy of appeal. Pursuant thereto, Petitioner filed an appeal under Section 72 of the Act. The Appellate Authority on 6th December 2013 dismissed the appeal by relying upon reasoning giving by the lower authority on limitation.

6. It is on the aforesaid backdrop that the Petitioner has challenged original order and appellate order before this Court in the present petition.

7. Mr. Mehta, learned counsel for the Petitioner submits that the time taken by the stamp authorities for adjudication of the stamp duty from 6th June 2012 to 13th September 2012 should be excluded for the purpose of calculation of 4 months under Section 23 of the Act and if that is excluded then the Petitioner has lodged the document within 4 months and, therefore, there is no delay in lodging the document for registration. Learned counsel has relied upon a decision of this Court in Kirti Jagdish Mulani Vs. The State of Maharashtra & Ors.[1] in support of this submission and brought to the attention of this Court more particularly paragraph 9 to contend that the Co-ordinate Bench of this Court has taken identical view.

8. Per contra, Mr. Sawant, learned AGP vehemently opposed the petition on the ground the document is dated 20th December 2011, whereas the same has been lodged for registration on 16th November 2012 and since it is beyond the period of 4 months provided under Section 23 of the Act, the authorities were justified in rejecting the registration of the Settlement Deed.

9. I have heard learned counsel for the Petitioner and learned counsel for the Respondent.

10. It is important to note that the Appellate Order dated 6th December 2013 has been passed without giving any opportunity of hearing to the Petitioner. Normally this Court would have remanded back to the Appellate Authority, but in the light of the fact that 10 years have passed and the petition is pending before this Court and further the issue involved is also squarely covered by the decision of the Coordinate Bench of this Court, this Court deems fit to adjudicate the issue in the present petition rather than remanding the matter back to the Appellate Authority.

11. Section 23 of the Registration Act reads as under:-

12. Section 34 of the Bombay Stamp Act, 1958 (now the Maharashtra Stamp Act) reads as under:-