CRITERIA
OF Relinquishment or Release Deed- stamp duty or impounding
Whether
a Relinquishment deed can be impounded on account of deficient stamp duty and
can that be treated as a gift deed? If, so, what are the circumstances? The
moot point is whether the relinquishment deed can be treated as gift and hence,
for want of payment of stamp duty, whether the instrument could be impounded? What
are the pre-requisites of a relinquishment deed so as to pass muster as
such? In other words, whether Relinquishment deed in all cases shall be treated
as gift deed or there are certain criteria laid down in this regard shall need deliberation.
In order to find the answer and without detaining us further on the aspect, judgments/precedents
laid down shall have to be analaysed and at the very onset and straightway a recent
judgment of the hon’ble Division bench of Dehi High Court captioned as
Ramesh Sharma Vs Government of NCT of Delhi & Ors bearing no. LPA 346/2020
(decided on 08.10.2025) shall be worthy of reference and prior thereto, in
addition thereto, a matter reported as Anita Kumar Vs Ajay Kumar
since deceased Through LRs & Ors FAO (OS) 130/2024 shall also be very
pertinent in this context.
In
Ramesh Sharma (Supra), broad contour of the case being same, in
order to appreciate the matter, it may be pertinent to refer to the facts of the case in that case.
(i)
The dispute related to a property of Greater Kailash, New Delhi (suit property)
and parents of the appellant jointly owned the suit property in 50:50 ratio.
(ii)
The father of appellant however had executed a registered Will and he bequeathed
his entire share in the suit property in favour of the appellant son.
(iii)
The father of appellant died on 31.10.2003 leaving behind his widow, appellant son
and Five (5) daughters.
(iv)
The suit property was thus jointly owned by the appellant and his Mother with
half share each. As on 20.03.2013, the Mother also died, thereby leaving behind
the appellant son and Five (5) daughters as class 1 legal heirs.
(v)
On 03.07.2012 itself (When Mother was alive), three daughters had executed three
separate Relinquishment deeds in favour of the appellant and presented the same
before the Sub-Registrar V-A, Mehrauli, New Delhi on 06.07.2012. Similarly, the
remaining two daughters also had executed Relinquishment deed in favour of the
appellant on 17.07.2012 and it was presented before the Sub Registrar on the
said date.
(vi)
The Sub-Registrar on 17.07.2012 had informed the Collector of Stamps, Hauz Khas,
Mehrauli, New Delhi about impounding of the instruments i.e Relinquishment
deeds (RDs) and the appellant had thus come to know about this.
(vii)
Subsequently, the SDM, Kalkaji on 01.03.2013 after perusing the written explanations
from the appellant had concluded that all Five RDs shall be subject to payment
of stamp duty in accordance with Section 23 of the Schedule I of Indian Stamp
Act 1899.
(viii)
Pursuant thereto, acting on the valuation report submitted by the Tehsildar,
Kalkaji vide order dated 15.05.2013 imposed the stamp duty of approximately Rs
6,50,000/- along with a penalty of Rs 1,00,000/- imposed on the appellant.
(ix)
The appellant had deposited the said sum with a view to avoid immediate
attachment of the property under protest vide challan dated 29.05.2013.
(x)
RTI application was also filed before the SDM, Hauz Khas, whereby details of
RDs impounded between 01.01.2012 and 30.04.2012 on the premise that the
instrument of RDs shall tantamount to a gift and were not sufficiently stamped.
No satisfactory reply was allegedly received and even the appeal before the RTI
appellate authority was filed, but the Sub-Registrar had failed to provide the
information.
(xi)
In the above backdrop, the appellant had preferred a writ petition bearing no.
W.P (C) 3560/2018 before the ld Single Judge of Delhi High Court impugning
therein, orders dated 01.03.2013 & 15.05.2013 passed by SDM Kalkaji and
unsatisfactory response to various RTI applications.
The findings of ld Single Judge
The
ld Single judge had dismissed the writ petition on the following premise:
(i)
All the Five (5) RDs formed part of a single transaction and merely because the
Five RDs were filed on different dates, that in itself shall not be a
determinative factor.
(ii)
The rights were relinquished only in favour of brother, leaving behind the
Mother (As she was alive then) and hence, the RDs shall have to be treated as
Gift Deeds and not Release Deeds.
(iii)
The RDs cannot be treated a family settlement as no reference to the Will
executed by the Father of the appellant, nor any purported family settlement
existed.
(iv)
The perusal of recitals of RDs and covenants contained therein clearly reflected
that RDS are documents of conveyance and thus it cannot be treated as Release
Simplicter.
In
a similar writ petition being W.P( C) 9193/2013 captioned as Tripta
Kaushik Vs Sub Registrar VI-A Delhi & Anr was clubbed together and
heard by ld Single Judge as common question of law arose in both the judgments.
It is pertinent to point out that the ld Single Judge was pleased to allow WP
(C) 9193/2019 on account of peculiar facts of the case. In the said writ, the
RD was executed by a co-owner in favour of only existing other co-owner
and hence, it was held to be a Release Deed and falling within the ambit of
Article 55 of Schedule I-A (for Delhi) of the Stamp Act 1899.
The issues and decision by the Division BeNCH
The
moot point is whether the RDs can be treated as a Gift Deed and that too in all
circumstances? It this follows that whether for the purpose of the Indian Stamp
Act 1899, the relinquishment of rights in a property by the sisters/co-owners
in favour of their brother/co-owner can be treated as Gifts?
The
appellant has contended that RDs cannot be treated as gift deed, based on the
following reliance:
(i)
Smt G. Subbalakshmi Visweswara Rao Vs Secretary to Government, Revenue
Department & Ors 2011 SCC OnLine AP 1093;
(ii)
Maddula Girish Kuma & Anr Vs The Commissioner of Survey, Settlement of Land
Records and Anr 1992 SCC OnLine AP 125;
(iii)
The Board of Revenue, Hyderabad Vs Valivety Rama Krishnnaiah 1972 SCC OnLine AP
155
The
respondent however relied upon the following judgments in support of their
contentions that RDs herein shall have to be treated as gift deed.
(i)
The Board of Revenue, ( The Chief Controlling Revenue Authority) Vs V,M
Murugesa Mudaliar of Gudiyatham AIR 1955 Mad 641;
(ii)Narinder
Kaur & Anr Vs Amarjeet Singh Sethi & Anr (2000) 54 DRJ 53;
(iii)Javer
Chand & Ors Vs Pukhraj Surana AIR 1961 SCC 1655;
(iv)
Tripta Kaushik Vs Sub Registrar VI-A & Anr 2020 SCC OnLine Del 2748;
(v)
Neeraj Arya Vs Rakesh Arya & Anr 2023 SCC OnLine Del 7816.
It
is worth mentioning that the term “relinquishment deed” does not find mention
in Indian Stamp Act 1899 and has not been referred to in Schedule I-A (for
Delhi) of the Stamp Act 1899. Although, the reference of Release deed existed
in Article 55 and the stamp duty payable in the release deed has been duly
mentioned therein.
The
hon’ble Division bench of Delhi High Court in Ramesh Sharma
(Supra) placed reliance on a full bench judgment of Madras High Court in a
matter reported as Chella Subbanna & Anr Vs Chella balasubbareddi
& Ors 1945(1)MLJ 140 wherein it was held:
“The
relinquishment by one coparcener of his interest in the family estate in favour
of the member of coparcenary does not amount to an alienation, it merely
amounts to an extinction of his interest in favour of the others”.
Yet
again, the reliance was placed on another full bench judgment of Madras High
Court in Reference under Stamp Act 46 ILR 18, Madras 233 wherein it is held
that:
“
we can see no difference in principle between such a document as between
members of a coparcenary and the document in question, which is a document
between co-owners”.
The
Division bench therefore held in Ramesh Sharma (Supra) as under:
“19.
Therefore, upon perusal of the above mentioned judgments, it is reiterated that
Relinquishment does not tantamount to an alienation of rights, and RD between
the co-owners holds equal force as an RD between the coparceners”.
The
Division bench had also referred to Smt G.Subbalakshmi (Supra)
with approval, whereby the Andhra Pradesh High Court has held as under:
“10.
Therefore, the principle that emerges is that by executing a release deed, one
of the coparceners is merely separating himself from the joint family, while
the others continue as members of the 14 1945 (1) MLJ 140. 15 I.L.R. 18 Madras
233. same undivided family. The estate of the coparceners, in law, is liable to
be treated as held in entirety without recognition of identifiable shares. By
executing a release deed, one or more coparceners are merely renouncing or
extinguishing his or their interests in the estate without, in any manner,
affecting the status of the remaining members of the joint family. Therefore, a
release deed is not required to be executed by all the coparceners joining the
same deed or the release deed is required to be executed in favour of the
remaining coparceners either. The principle is, to the extent the coparceners
have relinquished their respective rights, the release of the document derives
a corresponding benefit of increased proportion in the estate. Therefore, I
have no hesitation to hold that the view taken by the Collector as well as the
Chief Controlling Revenue Authority in the instant case, is unsustainable in
law and the two documents bearing Nos. 80/2002 and 713/2002, are rightly
treated by the Sub Registrar concerned as release deeds and they have not
suffered any deficit stamp duty.”
The
reliance was also placed on the judgment rendered by the Special Bench of
Andhra Pradesh High Court in Madula Girish Kumar (supra), whereby
a reference was made under Section 57 of the Stamp Act, by the Chief
Controlling Revenue Authority and Commissioner of Survey, Settlements and Land
Records, Hyderabad, regarding stamp duty payable on the two documents executed
by the mother, on behalf of her two minor sons, relinquishing their respective
shares in the joint family movable and immovable properties in favour of their
father. The Joint Registrar of Machilipatnam impounded those two documents,
treating them as documents of conveyance on sale. While relying on the
judgments in Chella Subbanna (supra) and V. M. Murugesa Mudaliar
(supra), it was held that the two documents are deeds of release.
Similarly,
reliance was placed upon the judgment rendered by the Full bench of the Andhra
Pradesh High Court in Valivety Rama Krishnaiah (supra), whereby,
the Court relied on the judgments rendered in Chief Controlling Revenue
Authority v. Patel AIR 1968 Mad 159 and Kuppuswami Chettiar v.
Arumuga Chettiar AIR 1967 SC 1395 and Reference under Stamp Act
Section 46 (supra), which is reproduced below:
“10.
The question that fell for determination before the Full Bench was whether the
instrument in question fell within the definition of a conveyance under Article
19 of the Schedule I-A of the Madras Stamp Act. Their Lordships were of opinion
that it was not a conveyance. It was observed that the property in question was
owned by the parties to the instrument as co-owners, the executants being
entitled to a 3/5th share and the other two being entitled to the other 2/5th
share. They laid stress on the fact that there was no division of the property
by metes and bounds at any time anterior in accordance with their respective
shares. In such circumstances, the document in question was a release within
the meaning of Article 44 of the Madras Stamp Act.
“11.
Reference was made by the Full Bench to a decision in “Reference under Stamp
Act Section 46‟
(1895) 18 Mad 233 (FB). The said Full Bench
in a reference under Section 46 of the then Stamp Act had to consider the
question of a document executed by a Hindu son in favour of his father
representing the other members of the family relinquishing his rights in the
property of the family in consideration of certain lands being allotted to him
for life and also certain debts incurred by him being paid. The learned Judges
observed that it was a deed by which one co-owner renounced his claim for
partition against the family property in consideration of a certain income to
be enjoyed by him for his life out of certain lands over which he had no power
of alienation. It was held that the instrument in question was a release and
should be stamped as such. The principle enunciated therein was in relation to
a Hindu joint family and a relinquishment by one coparcener in favour of the
others in consideration of some benefit conferred on the relinquishing
coparcener. Such an instrument was held to be a release deed. The principle
decided in “Reference under Stamp Act, Section 46” (1895) 18 Mad 233 (FB),
was applied by the later Full Bench to the case of Co-owners and a release by
one or more of them in favour of the others for a stated consideration. The
Full Bench held that the document in question was a release deed and that it
was neither a deed of dissolution of partnership nor a conveyance”.
12.
In another Full Bench decision of the Madras High Court in Chief Controlling
Revenue Authority v. Patel, AIR 1968 Mad 159, a somewhat similar question
had arisen. That again was a reference under Section 57 of the Stamp Act and
the question was whether the instrument in the case before the Full Bench was a
release of conveyance amounting to a transfer of property for value. The Full
Bench considered the essential ingredients of a release. They quoted with
approval the observations from the Full Bench decision in AIR 1955 Mad 641
(FB) and held that the instrument before them was a release. In support of
their conclusion, they referred to a decision of their Lordships of the Supreme
Court in Kuppuswami Chettiar v. Arumuga Chettiar, AIR 1967 SC 1395. The
Supreme Court was concerned with a document of release. It was observed by the
Supreme Court that a release deed could only feed title, but could not transfer
title and that renouncement must be in favour of a person who had already title
to an estate, the effect of which was only to enlarge the right”.
13.
Now adverting to the document in the present case before us we have no manner
of doubt that it is a release deed. We, therefore, unhesitatingly hold that the
document has been correctly stamped as a release deed.”
After
placing reliance on the aforesaid judgments and discussion as entailed
thereunder in Ramesh Sharma (Supra), the Division bench has held
as under:
“23.
From the abovementioned discussion, it is observed that the release deed can
only feed title but cannot transfer title. In this case, the Appellant, his
mother, and the five sisters all became co-sharers in the suit property on the
death of the father. The transaction was between the family members, wherein
the chances of economic consideration are remote. Hence, in the present matter,
the RDs have only added a title to the already existing title of the Appellant.
Therefore, an error was committed in the Impugned Order by treating the RDs as
deeds of gift for the purposes of the Stamp Act and upholding its impounding”.
The
Division bench has categorically held that the order passed by the single judge
in Ramesh Sharma (Supra) while upholding the impounding of
relinquishment deed have relied upon the judgment in V.M Murugesa
Mudaliar ( Supra) passed by the full bench of Madras High Court, but,
that was, while, considering a document, whereby, three persons had renounced
all their interest in the property of the partnership firm in favour of two
remaining partners for some consideration. In that context the document was
held to be a release deed within the meaning of Article 44 (B) of Schedule-I A
(For Andhra Pradesh) of the Stamp Act 1899. It was categorically observed
therein as under:
“In
the case of co-owners, there need be no conveyance as such by one of the
co-owners in favour of the other co-owners as each co owner in theory is
entitled to enjoy the entire property in part and in whole and it is not
necessary for one of them to convey his interest to another. It is sufficient
if he releases his interest, the result of which would be the enlargement of
the share of another. There can however, be no release by one person in favour
of another, who is not already entitled to the property as a co-owner.”
The
Division bench in Ramesh Sharma (Supra) had also referred to a
judgment rendered by the division bench itself, earlier in a matter reported as
Anita Kumar Vs Ajay Kumar since deceased Through LRs & Ors FAO(OS)
130/2024 and in the said case it was held as under:
“25.
It is noted that the purpose of the Stamp Act is to collect revenue. The
nomenclature of a document is not decisive for the purpose of adjudicating the
liability to pay stamp. This Bench has made a sincere attempt to trace the
source of the extracted observations, however failed to find one. In any case,
the ratio of the judgment passed by the Court is binding. However, before the
Full Bench of the Andhra Pradesh High Court, a different question was referred
for decision, and hence, the aforementioned observations are not the ratio of
the judgment.
26.
Therefore, laying down, as an abstract proposition of law, all the
relinquishment deeds executed by a particular co-sharer(s) in favour of another
co-sharer or some of the co-sharers, while excluding the remaining co-sharers
are not relinquishment deeds, but gift deeds, would not be appropriate.”
What
clearly emerges, therefore, according to the Division bench in Ramesh
Sharma (Supra) that reliance in V.M Murugesa Mudaliar
(Supra) to buttress the point in the context of the Stamp Act 1899 and to the
effect that RD executed in favour of one or more co-owners and not in favour of
all the co-owners cannot be said to be a release, clearly lacks substance,
since, in the present case (Ramesh Sharma), all the sisters had
executed RDs in favour of their brother.
The
hon’ble Division bench thereafter in Ramesh Sharma (Supra) had
dealt with the reliance placed by the respondents in support of their case in a
manner as reproduced under:
“21.
Further, the learned counsel representing the Appellant has relied upon a
celebrated judgment passed by a four-Judge Bench in Javer Chand (supra).
In this judgment, the Supreme Court decided as to whether or not two hundies
sued upon were admissible in evidence. Since this judgment is not with regard
to a relinquishment deed or a release deed, the ratio of the same does not
apply to the present case”.
23.
Further, in Narinder Kaur (supra), which appears to be the first
judgment from this Court, the release deed was executed by the son in favour of
his father, who had no subsisting share in the property. The Court was
examining an application filed under Order XXXIX, Rules 1 and 2 of the CPC, to
grant an injunction or not. Multiple relinquishment deeds were executed between
the family members. In para 3, the Court has observed as under:
“Para
3.…At this stage I would only mention the basic legal fallacy in the document
is that a Relinquishment perforce cannot be in favour of any particular co sharer;
if it is to operate in favour of a particular party it amounts to a transfer
and must be effected either by Sale Deed or by a Gift Deed, depending entirely
on whether there was any consideration for such a transfer.”
24.
The source of such observations appears to be the full bench judgment of the
Andhra Pradesh High Court in The Board of Revenue (The Chief Controlling
Revenue Authority) (supra)….
25.…….However,
before the Full Bench of the Andhra Pradesh High Court, a different question
was referred for decision, and hence, the aforementioned observations are not
the ratio of the judgment.”
The
division bench in Ramesh Sharma (Supra) has thus held as under:
“28.
Therefore, the answer to the issue before us is in negative. Thus, the
relinquishment of rights in a property by the sisters (co-owners) in favour of
their brother (another co-owner) cannot be said to be a Gift for the purposes
of the Stamp Act”.
“29.
Further, it is emphasised here that the procedure contemplated by the Stamp
Act, facilitates the collection of revenue for the State. The nomenclature of a
document is not decisive for the purpose of adjudicating the liability to pay
stamp”.
If
the RDs are read even cursorily, it may appear that there is no economic
consideration in executing RDs by the sisters and the sisters had plainly
released their shares in favour of their brother. What may be noted further
that even as per the Will executed by the deceased father, Ramesh Sharma
had already become owner to the extent of 50% of the suit property and by way
of RDs basically, the said fact was acknowledged. Moreover, as recitals of all
RDs were identical and styled as release deeds in as much as the sisters
through separate RDs had agreed to relinquish their respective rights in the
suit property in favour of their brother and there was hardly time gap in
executing all RDs. It was thus held as the RDs form part of a single
transaction, and hence cannot be a single determinative factor for the RDs to
be considered as Gift Deeds.
The
appeal in Ramesh Sharma (Supra) was therefore allowed and order
of ld Single Judge impugned before the Division bench in Ramesh Sharma (Supra)
was thus, set aside.
In
Anita Kumar (Supra) also, the FAO (OS) 130/2024 the correctness
of order passed by the ld single judge, whereby, the relinquishment deed
executed by the Mother in favour of her son on account of deficient stamp duty
by treating that as a gift deed was
assailed before the Division bench. The main premise of the impugned order was
to the effect that if a co-owner releases his or her share in favour of one of
the co-owners, in the eventuality where there is more than one co-owner, then
such a release can only be done through a gift deed.
In
order to appreciate the whole gamut of the case vis a vis law it is deemed
appropriate to narrate facts
of the Anita Kumar (Supra) in nutshell.
(1) The historical perspective of the suit
property is as under:
(i)
Shri V.K Gupta and Smt Saroj Gupta were the joint owner of the suit property;
(ii)
On account of demise of shri V.K Gupta his share in the suit property was
mutated in favour of the following Legal Heirs:
(a)
Smt Saroj Gupta (wife)
(b) Shri Uday K Gupta (Son)
(c)
Shri Sanjay Kumar (Son)-Husband of Ms Anita Kumar
(d) Shri Ajay Kumar (Son)
(2)
Smt Saroj Gupta, vide a registered relinquishment deed had relinquished her
12.5% in favour of her son Sanjay Kumar and as such Sanjay Gupta after relinquishment
held 25% share in suit property.
(3)
Sanjay Kumar had breathed his last on 25.08.2013, but before that he had
executed a registered Will dated 23.08.2013 in favour of his wife Smt Anita
Kumar (Appellant/plaintiff)
(4)
On account of dispute and efforts of co-owner in seeking to evict Smt Anita
Kumar and her children from the possession of the suit property, thus, a suit
for partition and injunction bearing CS (OS) No. 2104/2013 before Delhi High
Court and a restraint order was passed. The aforesaid persons were the defendants
in the said suit.
(5)
The defendants in the suit after 10 years of pendency of suit had filed
application u/s 33,35 and 38 of Indian Stamp Act, 1899 read with section 151 of
Code of Civil Procedure seeking examination and impounding of the relinquishment
deed as the same was allegedly in the nature of a gift deed and hence
insufficiently stamped.
(6)
According to the plaintiff, since, the defendants had raised objection after 10
years of filing of suit and after the said relinquishment deed was admitted into
evidence and after admission/denial of documents and that the defendants cannot
renege from their stated position.
The
ld single judge had allowed the application, directing impounding of the document
inter alia on the following grounds:
(i)
The evidence in the case was yet to be recorded and hence, the defendants
cannot be precluded from raising admissibility of document;
(ii)
If a co-owner releases her share in favour of one co-owner, excluding other
co-owner/s, then, such a release can only be done through a gift deed.
The
appellant thus, being aggrieved, preferred appeal against the order passed by
the ld single judge before the division bench on the following premise:
(i)
The document had already been admitted in evidence and it was duly exhibited;
(ii)
In view of Section 36 of Stamp Act, 1899, the admission of document cannot be
questioned;
(iii)
In view of judgments rendered in Hari Kapoor (details below) a relinquishment deed
cannot be treated as gift deed.
The
respondent contended that merely, because admission/denial was conducted, a bar
u/s 36 of Stamp Act shall not be attracted, since, the plaintiff was yet to
lead evidence. Further , marking of document as “exhibit” in itself is not sufficient
and cannot be treated as admission as per GM Sahul case (details
below).
It
may be apt to refer to the following issues framed by the Division Bench of Delhi
High Court, craving for adjudication in Anita Kumar (Supra):
i.
Whether a relinquishment/release deed executed by a mother, relinquishing some
part of her share in favour of one of her sons, amounts to a gift deed
attracting corresponding stamp duty as prescribed in the Indian Stamp Act
,1999?
ii.
If the answer to the aforementioned issue is positive, then whether such a
relinquishment deed is liable to be impounded under Section 35 of the Stamp
Act,1899, by treating it as gift deed?
In
Anita Kumar (Supra) with a view to make reference of law , it is
apt to refer to the following judgments/precedents were referred to by the
parties:
Reliance by the Petitioner
(i)
Hari Kapoor Vs South Delhi Municipal Corporation 2019 SCC OnLine Delhi 11153;
(ii)
Srichand Badlani Vs Govt of NCT of Delhi & Ors (2013) SCC OnLine 5128
Reliance by the Respondent
(i)
G.M Shahul Hameed Vs Jayanthi R. Hegde (2024) 7 SCC 719;
(i)
Javer Chand & Ors Vs Pukhraj Sharma AIR 1961 SCC 1655,
(iii)
Avinash Kumar Chauhan Vs Vijay Krishna Mishra (2009) 2 SCC 532
(iv)
Neeraj Arya Vs Rakesh Arya & Anr 2023 SCC OnLine Delhi 7816.
DISCUSSION
ON IMPOUNDING OF DOCUMENT
Reference
may be have to para no. 15 , 18 and 19 of Anita Kumar (Supra):
15.
It is to be noted that the purpose of section 33 of Stamp Act, 1899, is to
ensure payment of stamp duty for collecting revenue for the State. It is a
curable defect, subject to making good the deficient stamp duty along with a
penalty. In the present case, the suit property was jointly purchased by the
Late Shri V.K Gupta and Late Smt Saroj Gupta. On the death of Late Shri V.K
Gupta, his 50% share was inherited by his four class I heirs, including his
widow and his three sons. Late Smt Saroj Gupta became the owner of 62.5% share
as she was already a co-owner to the extent of 50% , whereas each son had
acquired a share of 12.5.% % in the suit property. Late Smt Saroj Gupta relinquished
12.5% share in favour of Sanjay Kumar, one of her son vide a relinquishment
deed dated 07.10.2009. After the unfortunate demise of Late Sanjay Kumar, his
widow Smt Anita Kumar filed a suit for partition apart from other reliefs in
the year 2013. The defendant in the year 2023, filed an application for impounding
the Relinquishment Deed by treating it as gift deed. The ld single judge
accepted the prayer and directed the plaintiff to produce the original relinquishment
deed, which has been impounded during the pendency of the appeal.
18.
On a plain reading of the Relinquishment Deed, it becomes evident that the mother
executed the Relinquishment Deed to release1/8 share in favour of her son, Late
Sh Sanjay Kumar, and there was no economic consideration/transaction exchanged
at the time of execution. Thus, Late Smt Saroj Gupta has, out of love and
affection, relinquished her 1/8th share in the suit property in
favour of Late Sh Sanjay Kumar.
19.
In the present case, the transaction in question does not fall within the
definition of Article 23 A. If a person renounces a claim upon another person
or against any specified property , the stamp duty of rs 100/- is payable, if the
amount exceeds Rs 1000/- The release deed has been executed on a non judicial stamp
paper of Rs 100/- which was registered on 07.10.2009 without any objection as a
Relinquishment Deed by the Registering Authority.”
The
Division bench in Anita Kumar (Supra has also distinguished Tripta Kaushik
(Supra) in the following words:
. 20.
For impounding the document, the ld Single Judge has relied upon Tripta Kaushik
(Supra). In this case, a writ petition was filed under Article 226 of the
Constitution of India, challenging the order passed by the Registering
Authority on 05.03.2019, while impounding the relinquishment deed executed on
01.03.2019 by the son of the petitioner, shri Kapil Kaushik, in her favour.
After discussing various judgments passed, the Court came to the conclusion that
where the relinquishment of right by the co-owner is only in favour of one or
more co-owners and not in favour of all, then, the document would be one of the
gift/conveyance and not of release. The ld single judge further relied on
Narinder Kaur (Supra), wherein the Court held that unless the relinquishment deed
is properly stamped as a gift deed, it cannot be read in evidence.
On
the basis of discussion in Anita Kumar (Supra) it is held as
under:
26.Therefore,
laying down, as an abstract proposition of law, all the relinquishment deeds
executed by a particular co-sharer(s) in favour of another co-sharer or some of
the co-sharers, while excluding the remaining co-sharers are not relinquishment
deeds, but gift deed, would not be appropriate.
28.
From the abovementioned discussion, it is observed that the release deed can
only feed title but cannot transfer title. In this case, late Sh. Sanjay Kumar
became a co-sharer in the property on the death of his father, late Sh V.K
Gupta in the year 2001.Hence, he had a title in the property. Similarly, his
mother, Late Smt Saroj Gupta was also a co-owner. The transaction was between
mother and son. Since, it was between the family members, the chances of
economic consideration are remote. Hence, in this case, the Relinquishment Deed
has only added a title to the already existing title of late Sanjay Kumar,
Therefore, an error was committed in the impugned order by treating the Relinquishment
Deed to be a deed of gift and directing it to be impounded.
It
was also held in Anita Kumar (Supra) that declaring Relinquishment
Deed as a Gift Deed for the purpose of payment of stamp duty without permitting
the parties to lead evidence would not be appropriate.
The
appeal was thus allowed by setting aside the order of ld Single Judge and reliance
of Anita Kumar (Supra) was placed on a subsequent judgment of the
hon’ble Division bench of Delhi High Court in Ramesh Sharma
(Supra) with the similar result. What therefore emerges, clearly, is that the notion
as emanated from the earlier judgments rendered by the single judge of Delhi
High Court that relinquishment deed by one of the co-owner of a property to
other co-owner or co-owners, while excluding some other co-owner or co-owners shall
not be a relinquishment deed but shall be a Gift Deed necessitating payment of
stamp duty is not correct. However, a caveat was added by the Division bench in
Anita Kumar (Supra) that concluding a relinquishment deed as a
gift deed prior to leading of evidence shall not be correct, thus, the element
of leading evidence and thereafter coming to a proper conclusion has also been the
essence of the division bench judgment.
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Anil K
Khaware
Founder & Senior Associate
Societylawandjustice.com
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