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TMI Blog2019 (11) TMI 1793X X X X Extracts X X X X X X X X Extracts X X X X ..... er approached the respondent with a letter of request for transfer/ mutation of the property in his favour on 25.10.2016. As there was no proper response from the respondent, the petitioner on 14.08.2017 filed an application under RTI Act. Alongwith the reply sent by the respondent dated 11.09.2017 a circular/order issued dated 8.12.2015 was attached. As per the said circular a direction has been issued to the Sub Registrar to collect transfer duty on each and every document of Transfer of immovable property including Release Deeds/Relinquishment Deeds. This circular was issued based on the opinion of the legal department of the respondent stating that in view of section 147 of the Delhi Municipal Corporation Act, 1957, transfer duty has to be charged on release deeds/relinquishment deeds. 3. The narrow dispute in the present petition is as to whether a release deed is liable to levy of duty as provided under section 147 of the DMC Act, 1957. 4. I have heard learned counsel for the parties. Learned counsel for the petitioner relies upon judgment of the Full Bench of the Madras High Court in The Chief Controlling Revenue Authority , Board of Revenue, Madras vs. Dr. K. Manjunatha R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Indian Stamp Act, 1899 (2 of 1899) as in force for the time being in the Union territory of Delhi, on every instrument of the description specified below, and (b) at such rate as may be determined by a Corporation not exceeding five per cent, on the amount specified below against such instruments: Description of instrument Amount on which duty should be levied (i) Sale of immovable property. The amount or value of the consideration for the sale, as set forth in the instrument. (ii) Exchange of immovable property. The value of the property of the greater value, as set forth in the instrument (iii) Gift of immovable property. The value of the property, as set forth in the instrument. (iv) Mortgage with possession of immovable property. The amount secured by the mortgage as set forth in the instrument. (v) Lease in perpetuity of immovable property The amount equal to onesixth of the whole amount or value of the rent which would be paid or delivered in respect of the first fifty years of the lease as set forth in the instrument. (vi) Contract for transfer of immovable property Ninety per cent. Of the value of the consideration for the transfer as set out in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even at the time of the original purchase (it was agreed between the husband and the wife that ten out of the 27 grounds were for the latter's benefit. That this could have been the intention is shown by the fact that a better part of the purchase consideration of the property was a borrowal on the joint credit of both the respondent and his wife, first from the Vijaya Bank and later from the Indian Bank. Besides, the wife had repaid Rs. 30,000, from resources found by her alone. In these circumstances there could be no doubt that even from the start the respondent and his wife were co-owners of the property and it was only as such co-owner that the wife subsequently proceeded to raise superstructures on a portion of the property at her own costs; thereafter enjoying the income from the property and paying the taxes herself. The District Registrar as well as the Board of Revenue regarded the document as a conveyance from the respondent to his wife, and spelt out the consideration therefore to be Rs. 30,000. The inference as to consideration was apparently drawn from, the recital that the respondent's wife had partially discharged the Vijaya Bank loan to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 46 of Schedule 1-A (A.P.), a deed of release is an instrument by which one of the co-owners releases or renounces his interest in the specified property and the result of such release would the enlargement of the share of the other co-owner. Thus, there is a clear and marked distinction between a deed of conveyance and a deed of release. A deed of release need not be gratuitous only. Even if it is supported by consideration, still it can be treated as a deed of release if the intendment of the parties and the purpose of the transaction satisfy the requirements of a deed of release in a case of the property owned by the co-owners. The release to the effective and operative must be in favour of all the persons interested in the property. The well settled principle of relinquishment is the enlargement of the share or shares of the co-owners and that principle will be defeated if the relinquishment is made in favour of one or a few named coowners from out of the several co-owners." In view of the principle laid down in the decision referred supra, a deed of release means an instrument by which one of the co-owners releases or renounces his interest in the specified propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form that the document was rightly interpreted as a release under Art. 55 of Schedule I of the Indian Stamp Act and is liable to duty as such." 12. It would follow that a deed of release is an instrument by which one co-owner releases his interest in a specified property as a result of which there would be enlargement of the share of the other co-owners. The releasee should also have a legal right in the property and the release deed would operate to enlarge that right. The share cannot be released in favour of one who has no rights in the property as co-owner. 13. Reference may also be had to few other judgments relied upon by learned counsel for the petitioner. Jatinder Nath vs. DDA (supra) was a case where after the demise of the father, the property devolved upon his two sons. On account of the oral settlement the brother executed a relinquishment deed in favour of the petitioner. The respondent refused to transfer/mutate the property stating that unless a gift deed is registered the name of the petitioner cannot be mutated as the full owner. In those facts a Coordinate Bench of this court held as follows:- "6. At the outset, I must say as to how these guidelines can come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uishment Deed and Gift Deed as separate documents, chargeable with different stamp duties. It is not necessary that in order to qualify as a Relinquishment Deed the document must purport to relinquish the share of the relinquisher in favour of all the remaining co-owners of the property. Even if the relinquishment is in favour of one of the co-owners it would qualify as a Relinquishment Deed." 15. Hence, both the above judgments of co-ordinate Benches of this court have clearly held that a Gift Deed is not necessary where a release deed has been executed in favour of one of the co-owners of the property. 16. I may now deal with the contentions of learned counsel for the respondent. It has been pleaded relying upon section 45 of the Transfer of Property Act that a release deed only operates where the co-owners have inherited the property. It would not operate where the property has been bought jointly by the co-owners themselves. Section 45 of The Transfer of Property Act, 1882 reads as follows:- "45. Joint transfer for consideration."Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pal Gupta vs. Sudhir Kumar Gupta (supra). In that case the court held as follows:- "20. Release/relinquishment on non-judicial stamp paper of Rs. 10/- is permitted and registered when title to the property had been inherited from a common ancestor. In such situation, since acquisition of title by inheritance is not owing to any voluntary act of the person on which the title devolves, the law permitted such person, if did not desire to hold such title, to convey the same by way of a release/relinquishment on a non-judicial stamp paper of Rs. 10/- in favour of some other heir of the common ancestor. However if the conveyance is intended to be from owner to another, ad valorem stamp duty is required to be paid. In the present case as aforesaid SPG and SKG acquired different floors of the property under different Sale Deeds with SPG being the owner of the ground floor and SKG being the owner of the upper floors and release/relinquishment on a stamp paper of Rs. 10/- in any case was not permissible. The title held exclusively by SKG of the upper floors of the property could have been conveyed to SPG even if under nomenclature of Release/Relinquishment Deed, only by paying ad valorem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was liable to assessment as contended by the Sales Tax Authorities." 23. Reference may also be had to the judgment of the Constitution Bench in the case of Commissioner of Sales Tax, U.P. vs. Modi Sugar Mills Ltd., AIR 1961 SC 1047 where the Supreme Court held as follows:- "10. ..... In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency." 24. As already noted above under Section 147 of the DMC Act the documents on which transfer duty can be levied are documents relating to sale of immovable property, exchange of immovable property, gift of immovable property, mortgage of immovable property, lease in perpetuity of immovable property and contract for transfer of immovable property. On a strict interpretation of the said statutory provisions, it is clear that a release deed is not mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a person a title where it did not exist...". Now, it cannot be disputed that a release can be usefully employed as a form of conveyance by a person having some right or interest to another having a limited estate, e.g., by a remainderman to a tenant for life, and the release then operates as an enlargement of the limited estate. But in this case, we are not concerned with a release in favour of the holder of a limited estate. Here, the deed was in favour of a person having no interest 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. In S.P. Chinnathambiar's case [(1953) 2 MLJ 387] , the document could not operate as a transfer, because a transfer was hit by Section 34 of the Court of Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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