In Civil Appeal No.6588 OF 2015-SC- Member of society executing document in his own capacity or in capacity of Guardian or minor, will not be entitled to benefit of remission of stamp duty u/s 40(1) (a) of Kerala Co-operative Societies Act, 1969: SC
Justices M.R.Shah & Krishna Murari [14-10-2022]

Read Judgment: Kerala Land Reforms & Development Co-operative Society Limited v. The District Registrar (General) & Another 

LE Correspondent

New Delhi, October 15, 2022: Concurring with the view of the full Bench of the Kerala High Court, the Supreme Court has opined that considering the express provision contained in Section 40(1) (a) of the Kerala Co-operative Societies Act, 1969, a member of the society executing the document in his own capacity or in the capacity of a Guardian or a minor shall not be entitled to the benefit of remission of stamp duty.

The Division Bench of Justice M.R.Shah and Justice Krishna Murari was considering a batch of appeals against the judgment passed by the Full Bench of the Kerala High Court wherein it was held that the benefit of remission of stamp duty is available only in respect of instruments executed by or on behalf of a society or by an officer or member thereof and instrument so executed should be relating to the business of the society.

The facts of the case revolved around the direction given by the Government of Kerala by that in respect of a co-operative society registered in the State, the whole stamp duty with which under the Kerala Stamp Act, 1959 instruments executed by or on behalf of any registered co-operative society or instruments executed by officer of such society or member in his own capacity or/and in the capacity of a Guardian of minor and relating to the business thereof and decisions, award or orders of the Registrar or the Arbitrators under the said Cooperative Societies Act, there shall be remission of stamp duty. Clause 1(a) of SRP No. 75/60 was the central aspect of determination of the issue in question.

The respective appellants herein were denied the benefit of remission of stamp duty considering Section 40 of the Kerala Act, 1969, more particularly the last part of the Section which provides that remission is available only in cases where, but for such remission, the society, officer or member, as the case may be, would be liable to pay such stamp duty.

 It was the case on behalf of the appellants that with respect to sale deeds in question, the appellants shall be entitled to remission of stamp duty. As per clause 1(a) of SRO 75/60 and as per Section 110(2) of the Kerala Act, 1969, notwithstanding the repeal of the Travancore Act, 1951 and the Madras Act, 1932, all notifications under the repealed Acts shall be deemed to have been respectively made, issued and instituted under the Kerala Act, 1969. 

The matter reached up to the Full Bench of the High Court. Against the decision of the full Bench, this appeal was filed.

The appellants were claiming remission of stamp duty on the respective instruments/sale deeds. In two cases, the sale deeds were executed by the members in favour of the society and in the rest of the cases, the sale deeds were executed by the society in favour of respective members. 

The respective appellants were claiming the benefit of remission of stamp duty under clause 1(a) of SRO 75/60. It was the case on behalf of the appellants that despite the repeal of the Travancore Act, 1951 and the Madras Act, 1932, SRO 75/60 which was issued under the aforesaid Acts is saved. 

Referring to the clause of the Notification and provision of the Act, the Bench held that that the instruments executed by a member in his own capacity or/and in the capacity of a Guardian of a minor, which was there in clause 1(a) of SRO 75/60 was missing insofar as Section 40 of the Kerala Act, 1969 was concerned. Section 40 of the Kerala Act, 1969 further provides that only in cases where, but for such remission the society, officer or member, as the case may be, would be liable to pay such stamp duty.

“As per Section 40 (1)(a), the stamp duty chargeable under the Kerala Act, 1959 in respect of any instrument executed by or on behalf of a society or by an officer or member thereof and relating to the business of such society….. and in cases where, but for such remission the society, officer or member, as the case may be, would be liable to pay such stamp duty, there shall be remission of stamp duty”, the Bench held.

The Bench held that clause 1(a) of SRO 75/60 is inconsistent with the relevant provisions of the Kerala Act, 1969, more particularly Section 40 thereof and the said order is not saved and cannot be said to be deemed to have been issued under the Kerala Act, 1969.

Noting that the appellants herein were not be entitled to the benefit of remission of stamp duty on the instruments/sale deeds in question as such instruments/sale deeds in question couldnot  be said to be executed by or on behalf of a society or by an officer or member thereof relating to the business of the society, the Bench dismissed the appeals.