Kerala Co-operative Societies Act, 1969 – ss. 40 and 110 – Stamp duty – Remission of – In exercise of powers conferred under the Travancore Act, 1951 and Madras Act, 1932, the Government of Kerala by SRO No. 75/1960 dated 08.10.1960, directed 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 – By Kerala Co-operative Societies Act, 1969, which came into force on 15.05.1969, the Travancore Act, 1951 and the Madras Act, 1932 came to be repealed – s.40 of the Kerala Act, 1969 provided for remission of stamp duty – Appellants were denied the benefit of remission of stamp duty considering s.40 of the Kerala Act, 1969 – Case of appellants that despite repeal of the Travancore Act, 1951 and the Madras Act, 1932, SRO 75/60 which was issued under the aforesaid Acts was saved – Held: The notification issued under the repealed Acts shall be saved to the extent “so far as may be” – On true interpretation of s.110(2) of the Kerala Co-operative Societies Act, the provisions of the repealed Acts and/or the notifications and/or orders issued under the repealed Acts is/are saved and/or deemed to have been issued under the Kerala Co-operative Societies Act, 1969 to the extent the same is not at variance or inconsistent with the provisions of the Kerala Co-operative Societies Act – 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 is missing insofar as s.40 of the Kerala Co-operative Societies Act, is concerned – As clause 1(a) of SRO 75/60 is inconsistent with relevant provisions of the Kerala Co-operative Societies Act, more particularly s.40 thereof, the said order is not saved and cannot be said to be deemed to have been issued under the Kerala Cooperative Societies Act, (s.110(2) of the Kerala Co-operative Societies Act) – Therefore, considering the express provision contained in s.40(1) (a) of the Kerala Co-operative Societies Act, 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 – Appellants not entitled to benefit of remission of stamp duty on instruments/sale deeds in question which could not 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.
Dismissing the appeals, the Court
HELD:1. As rightly interpreted and held by the Full Bench of the High Court, the notification issued under the repealed Acts shall be saved to the extent “so far as may be”. Therefore, on true interpretation of Section 110(2) of the Kerala Co-operative Societies Act, 1969, the provisions of the repealed Acts and/or the notifications and/or orders issued under the repealed Acts is/are saved and/or deemed to have been issued under the Kerala Co-operative Societies Act, 1969 to the extent the same is not at variance or inconsistent with the provisions of the Kerala Cooperative Societies Act, 1969. [Para 7][552-C-E]
2. 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 is missing insofar as Section
40 of the Kerala Co-operative Societies Act, 1969 is concerned. Section 40 of the Kerala Co-operative Societies 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 Stamp 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. Thus, as clause 1(a) of SRO 75/60 is inconsistent with the relevant provisions of the Kerala Act, 1969, more particularly Section 40 thereof, the said order is not saved and cannot be said to be deemed to have been issued under the Kerala Act, 1969 (Section 110(2) of the Kerala Act, 1969). Therefore, considering the express provision contained in Section 40(1) (a) of the Kerala 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. [Para 8][552-H; 553-A-D]
3. The appellants shall not be entitled to benefit of remission of stamp duty on the instruments/sale deeds in question which could not 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. [Para 9][553-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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