TMI Blog2019 (11) TMI 1793X X X X Extracts X X X X X X X X Extracts X X X X ..... in the property, and it could not take effect as an enlargement of an existing estate. It was intended to be and was a transfer of ownership. A deed called a deed of release can, by using words of sufficient amplitude, transfer title to one having no title before the transfer. The cases relied upon by counsel are not authorities for the proposition that the operative words of a release deed must be ignored. Accordingly, a writ of mandamus is issued to the respondent to carry out the mutation in favour of the petitioner for the property in question without payment of any transfer duty under Section 147 of the DMC Act, 1957. Petition allowed. - W.P.(C) 3370/2018 - - - Dated:- 15-11-2019 - HON'BLE MR. JUSTICE JAYANT NATH For the Appellant : Mr.Manish Sharma, Ms.Jigyasa Sharma, Mr. Dinesh Monga and Mr.Arjun Malik, Advs. For the Respondent : Mr. Nikhil Goel, Mr. Piyo Harold and Mr. Dushyant Sarna, Advs. for SDMC. JUDGMENT JAYANT NATH, J. 1. This Writ Petition is filed by the petitioner seeking an appropriate Writ for quashing the order dated 8.12.2015 passed by the Additional Commissioner of the respondent for collection of duty and directing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 of the DMC Act, 1957 will not apply. Reliance is also placed on judgments of this court in the case of Srichand Badlani vs. Govt. of NCT of Delhi Ors., AIR 2014 (NOC 539) 192 and Jatinder Nath vs. DDA, AIR 2001 Delhi 89 to plead that in similar circumstances documents have been construed as release deed. 5. Learned counsel for the respondent states that there can be no dispute that section 147 of the Act does not apply to a release deed. He, however, states that where two co-owners purchase the property jointly and thereafter one co-owner issues a release deed in favour of the other co-owner a document of this nature would be termed as a Gift Deed and not a release deed. He relies on section 45 of the Transfer of Property Act to support his plea. He further states that a release deed can only be executed where the coowners have inherited the property. He also relies upon judgment of a coordinate Bench of this Court in Satya Pal Gupta vs. Sudhir Kumar Gupta 2013 SCC OnLine Del 2304. He further states that the provisions of the Stamp Act have no application to the levy of a duty under section 147 of the DMC Act, 1957. Reliance is also placed on judgment of the Full Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in perpetuity of immovable property and contract for transfer of immovable property. It is noteworthy that there is no reference regarding instrument of release deed . 8. Article 55 of the Schedule of the Indian Stamp Act defines the duty for a release deed as follows:- 55. RELEASE, that is to say, any instruments [(not being such a release as is provided for by section 23A)] 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. 1,000; (b) in any other case. The same duty as a Bond (No. 15) for such amount or value as set forth in the Release. Five rupees 9. To understand the nature of instrument that falls within the term release deed reference may be had to the three judgments relied upon by the learned counsel for the petitioner. In The Chief Controlling Revenue Authority, Board of Revenue, Madras vs. Dr. K. Manjunatha Rai (supra), the Full Bench of the Madras High Court was dealing with an instrument which purported to release the property in favour of the wife which stood in the name of the releaser. The Sub-Registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a conveyance. For a release, in law, may be effected either for consideration or for no consideration. In either case, if the transaction operates as a relinquishment or a renunciation of a claim by one person against another or against a specified property, it will be a release. The stamp duty on a release, under the Stamp Act, does not depend upon the question of consideration or absence of consideration for the release. On the contrary it is made to depend on the value of the claim which is renounced by the releasor. 10. Reference may also be had to the judgment of the High Court of Hyderabad in the case Pasagadugula Narayana Rao vs. Pasagadugula Rama Murty and Ors. (supra) where the court held as follows:- 22. In Kuppuswami Chettiar v. A.S.P.A. Arumugam Chettiar, the Supreme Court, while drawing distinction between release deed and gift, held as follows: A release deed can only feed title but cannot transfer title. Renunciation must be in favour of a person, who had already title to the estate, the effect of which is only to enlarge the right. Renunciation does not vest in person a title where it did not exist. Now, it cannot be disputed that a release can be usef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Mahip Singh Thakur vs. Hema Thakur (supra) where the court held as under:- 8. We have given our careful consideration to the arguments advanced by learned counsel for the parties. The law is well settled with regard to the documents of release of property or release of a share from the property owned by two co-owners and one of them effacing himself in favour of the other. The essential ingredients of release are that there should be already a legal right in the property vested in the releasee and the release should operate to enlarge that right into an absolute title for the entire property as far as the parties are concerned. There cannot be any release by one person in favour of another, who is not entitled to the property as coowner. In Chief Controlling Revenue Authority v. Rustorn Nusserwanji Patel (supra), Full Bench of the Madras High Court took the similar view: (11) On the contrary, we may emphasise that the essential ingredients of release are here present. There is already a legal right in the property vested in the releasee, and the release operates to enlarge that right into an absolute title for the entire property, as far as the parties are concerned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent is totally untenable in law. I would not dwell much on this controversy because what has been filed by the respondent in this Court and has been heavily relied upon by counsel for the respondent is some guidelines which pertain to the substitution/addition/deletion of names in industrial/commercial plots. Unmindful of the fact that guidelines under which the respondent wants to take shelter pertains to industrial and commercial plots yet the respondent has been insisting to produce a Gift Deed pursuant to these guidelines which do not apply in case of residential plots. Nothing has been filed to show that there is any guideline by the respondent in relation to any residential plot which specifically, as a matter of principle and policy, requires for deletion of a name a gift deed. In the circumstances, I quash the impugned letter whereby the respondent is insisting upon execution of Gift Deed by Narender Nath in favour of his brother i.e. the petitioner. 14. Similarly, reference may also be had to the judgment of a co-ordinate Bench of this court in Srichand Badlani vs. Govt. of NCT of Delhi Ors., (supra). The facts are somewhat identical, namely, the co-owners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property. 17. A perusal of the above statutory provisions does not show that it supports the plea of the learned counsel for the respondent, namely, that a deed which operates to release the property of the co-owners who have inherited the property can be termed as release deed and not a deed which is executed between the co-owners who bought the property jointly for valuable consideration. 18. In this context, reference may be had to the observations of the learned Author Sh. K.K.Krishnamurthy in the Indian Stamp Act, 9th Ed. where Release Deed has been described as follows:- 5. Release or conveyance. In the case of co-owners each coowner is in theory entitled to enjoy the entire property in part or in whole. It is not therefore necessary for one of the co-ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kuppuswamy Chettiar and Ramdas Chimna(supra) is also apposite. 20. There is nothing in this judgment to support the contention of the respondent. The facts of the case show that the court was not dealing with a case of co-owners. Further, the judgment does not state that a Release deed can only be executed in the eventuality that title to a property is inherited from a common ancestor. This plea is without merits. 21. The Division Bench of this court in Mahip Singh Thakur vs Hema Thakur (supra) have clearly held that the essential ingredients of release are that there should already be a legal right in the property vested in the releasee and the release should operate notwithstanding that right into an absolute title. In view of the said legal position stated by the Division bench, in my opinion, the document in question which is subject matter of the present petition has to be treated as a release deed. 22. I may note that while interpreting a taxing statute, the court has to look only at the words of the statute and interpret them. The court cannot imply anything which is not expressed. Reference in this context may be had to the judgment of the Supreme Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the distinction between a release deed and gift deed was noted by the Supreme Court in the case of Kuppuswami Chettiar vs. S.P.A. Arumugam Chettiar Anr., AIR 1967 SC 1395 where the court held as follows:- 4. The question is whether Ex. B-1 on its true construction conveyed properties to the respondents. In T. Mammo v. K. Ramunni [AIR 1966 SC 337], this Court held: a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer . In the present case, the release was without any consideration. But property may be transferred without consideration. Such a transfer is a gift. Under Section 123 of the Transfer of Property Act, 1882, a gift may be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Consequently, a registered instrument releasing the right, title and interest of the releasor without consideration may operate as a transfer by way of a gift, if the document clearly shows an intention to effect the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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