Holding

The notification under the repealed Acts is not saved to the extent it is inconsistent with Section 40 of the Kerala Co‑operative Societies Act, 1969, so members executing documents in their personal capacity or as guardians are not entitled to remission of stamp duty.

Summary

The Kerala Land Reforms & Development Co‑operative Society Ltd and related societies sought remission of stamp duty on sale deeds executed either by the societies or by their members, invoking SRO No. 75/1960 which was issued under the repealed Travancore‑Cochin Co‑operative Societies Act, 1951 and the Madras Co‑operative Societies Act, 1932. The question was whether the notification could be saved under Section 110(2) of the Kerala Co‑operative Societies Act, 1969 and, if saved, whether instruments executed by a member in his own capacity or as a guardian of a minor fell within the remission provision of Section 40(1)(a) of the same Act. The Supreme Court held that the notification is saved only to the extent it does not conflict with the Kerala Act; clause 1(a) of SRO 75/60 is inconsistent with Section 40 and therefore not saved. Consequently, a member acting in his personal capacity or as a guardian is not entitled to stamp‑duty remission. The appeals were dismissed.

Issues considered

Whether SRO No. 75/1960 issued under the repealed Travancore‑Cochin and Madras Co‑operative Societies Acts is saved under Section 110(2) of the Kerala Co‑operative Societies Act, 1969.
Whether instruments executed by a member in his own capacity or as a guardian of a minor are covered by the remission provision of Section 40(1)(a) of the Kerala Co‑operative Societies Act, 1969.
Whether the societies can claim remission of stamp duty on the sale deeds in question.

Legislation cited

Subjects

stamp dutyremissionco-operative societiesrepeal and savingsKerala Co-operative Societies ActSection 110Section 40SRO 75/1960guardian of minorinstrument execution

Judgment

[2022] 13 S.C.R. 543 543

KERALA LAND REFORMS & DEVELOPMENT CO- A
OPERATIVE SOCIETY LIMITED
v.
THE DISTRICT REGISTRAR (GENERAL) & ANOTHER
(Civil Appeal No. 6588 of 2015) B
OCTOBER 14, 2022
[M. R. SHAH AND KRISHNA MURARI JJ.]
Kerala Co-operative Societies Act, 1969 – ss. 40 and 110 –
Stamp duty – Remission of – In exercise of powers conferred under C
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 D
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 E
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 F
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 G
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
H
543
544 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 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 Co-
operative Societies Act, (s.110(2) of the Kerala Co-operative
B
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
C 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
D
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
E 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, 1969. [Para 7][552-C-E]
F 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
G 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

H
KERALA LAND REFORMS & DEVELOPMENT CO-OPERATIVE SOCIETY 545
LIMITED v. THE DISTRICT REGISTRAR (GENERAL)

or member thereof and relating to the business of such society….. A
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
B
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 C
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. D
[Para 9][553-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6588
of 2015.
From the Judgment and Order dated 17.03.2015 of the High Court E
of Kerala at Ernakulam in W.A. No. 631 of 2015.
With
Civil Appeal Nos. 6830, 6831-6832, 6833, 6834-6836, 6837-6838
of 2022. F
Gopal Sankaranarayanan, Jayanth Muth Raj, Sr. Advs., M.P.
Srivignesh, Lakshman Raja T., Mithun Kumaar N., Ms. Jhanvi Dubey,
A. Selvin Raja, Haris Beeran, Mushtaq Salim, Usman Ghani Khan, Azhar
Assees, Radha Shyam Jena, A. Raghunath, K. Rajeev, Ms. Niveditha
R. Menon, Aditya Verma, R. Nedumaran, Chandan Kumar Mandal, G
Romy Chacko, Sudesh Kumar Singh, C. K. Sasi, Abdulla Naseeh V.T.,
Ms. Meena K. Poulose, Ranjith K. C., A. D. Sikri, Advs. for the appearing
parties.

H
546 SUPREME COURT REPORTS [2022] 13 S.C.R.

A The Judgment of the Court was delivered by
M. R. SHAH, J.
1. As common questions of law and facts arise in this group of
appeals, all these appeals are decided and disposed of together by this
B common judgment and order.
2. Feeling aggrieved and dissatisfied with the impugned
judgment(s) and order(s) passed by the Full Bench of the High Court of
Kerala at Ernakulam, by which the Full Bench of the High Court has
held that,
C i) 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; and
ii) the benefit of remission can be claimed by the society only if,
D but for such remission, the society, an officer, or the member, as
the case may be, would have been liable to pay such stamp duty,
the Kerala Land Reforms & Development Cooperative Society
Limited, Federal House Construction Cooperative Society Limited
& Another, N.B.Krishna Kurup and Others, Aluva Town
Cooperative Housing Society and the Central Excise & Custom
E
Officers Housing Co-operative Society Limited have preferred
the present appeals.
3. The particulars of each appeal(s) are as under:

ITEM CASE CAUSE TITLE APPELLANT(S) TRANSACTION
F NO. NUMBER INVOLVED
101 C.A. No. KERALA LAND Co-operative Sale deed executed by
6588/2015 REFORMS & Society the ‘A’ Class
DEVELOPMENT Members of the
COOPERATIVE Society in favour of
SOCIETY LTD. the Society.
VERSUS
DISTRICT REGISTRAR
(GENERAL) AND ANR
G 101.1 C.A. No. KERALA LAND Co-operative Sale deed executed by
6830/2022 REFORMS Society the ‘A’ Class
VERSUS Members of the
THE DISTRICT Society in favour of
REGISTRAR the Society
(GENERAL) AND ANR.

H
KERALA LAND REFORMS & DEVELOPMENT CO-OPERATIVE SOCIETY 547
LIMITED v. THE DISTRICT REGISTRAR (GENERAL) [M. R. SHAH, J.]

A

B

C

D
4. The facts leading to the present appeals in a nutshell are as
under:
Section 35 of the Travancore-cochin Co-operative Societies Act,
1951 (hereinafter referred to as the ‘Travancore Act, 1951’) provided
that the Government, by notification in the gazette, may in the case of E
any society or class of societies, remit the stamp duty with which, under
any law for the time being in force, instruments executed in favour of or
by or on behalf of a society or by an officer or member and relating to
the business of such society or any class of such instruments or awards
of the Registrar or Arbitrators under the Act are respectively chargeable. F
A similar provision was made under the Madras Co-operative
Societies Act, 1932 (hereinafter referred to as the ‘Madras Act, 1932’)
as per section 30(2) of the said Act.
4.1 In exercise of the powers conferred under the Travancore
Act, 1951 and Madras Act, 1932, the Government of Kerala by SRO G
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
H
548 SUPREME COURT REPORTS [2022] 13 S.C.R.

A Guardian of minor and relating to the business thereof and decisions,
award or orders of the Registrar or the Arbitrators under the said Co-
operative Societies Act, there shall be remission of stamp duty. Clause
1(a) of SRP No. 75/60, which is relevant for determination of the issue
in question, reads as under:
B “1. The stamp duty, registration fees and fees for Encumbrance
Certificate payable under the Stamp Act and the Registration Act
in force in the State shall be remitted to the Co-operative Societies,
in the following cases to the extent indicated in each case.
(a) The whole stamp duty with which under the Kerala Stamp
C Act, 1959 (Act 17 of 1959) instruments executed by or on
behalf of any registered Co-operative Society or instruments
executed by “any 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, awards or
orders of the Registrar or the arbitrators under the said Co-
D operative Societies Act.”
4.2 By the Kerala Co-operative Societies Act, 1969 (hereinafter
referred to as the ‘Kerala Act, 1969’), which came into force on
15.05.1969, the Travancore Act, 1951 and the Madras Act, 1932 came
to be repealed. Section 110 of the Kerala Act, 1969 deals with Repeal
E and Savings, which reads as under:
“110. Repeal and Savings – The Madras Co-operative Societies
Act, 1932 (VI of 1932), as in force in the Malabar District referred
to in sub-section (2) of S.5 of the State Reorganization Act, 1956
(Central Act 37 of 1956) and the Travancore-Cochin Co-operative
F Societies Act, 1951 (X of 1952) are repealed.
(2) Notwithstanding the repeal of the Madras Co-operative
Societies Act, 1932 and the Travancore-Cochin Co-operative
Societies Act, 1951 and without prejudice to the provisions of Ss.4
and 23 of the Interpretation and General Clauses Act, 1125 (VII
G of 1125).
(i) all appointments, rules and orders made, notifications and notices
issued, and suits and other proceedings instituted, under any of
the Acts hereby repealed shall, so far as may be, be deemed to
have been respectively made, issued and instituted under this Act;
H
KERALA LAND REFORMS & DEVELOPMENT CO-OPERATIVE SOCIETY 549
LIMITED v. THE DISTRICT REGISTRAR (GENERAL) [M. R. SHAH, J.]

(ii) any society existing in the state on the date of commencement A
of this Act which has been registered or deemed to be registered
under any of the aforesaid repealed Acts shall be deemed to be
registered under the Act, and the bye-laws of such society shall,
so far as they are not inconsistent with the provisions of this Act,
continue in force until altered or rescinded.”
B
4.3 Section 40 of the Kerala Act, 1969 provides for remission of
stamp duty, which reads as under:
“40. Exemption from certain taxes, fees and duties –
(1) The Government may, be notification in the Gazette, remit in
respect of any class of societies- C

(a) the stamp duty chargeable under the Kerala Stamp Act, 1959
(17 of 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, or any class of such instruments, or in
respect of any award or order made under the Act, in cases where, D
but for such remission the society, officer or member, as the case
may be, would be liable to pay such stamp duty.”
4.4 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 E
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) F
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. On interpretation of the relevant provisions of the Kerala
Act, 1969 and on interpretation of Section 110(2) of the Kerala Act, G
1969 (repealed provision), the Full Bench of the High Court has answered
the reference as under:
“(1) SRO No. 75/60 issued under section 35 of the TC Act and
section 30 of the Madras Act is saved by virtue of section 110(2)
H
550 SUPREME COURT REPORTS [2022] 13 S.C.R.

A of the Kerala Act only to the extent it is not inconsistent with the
provisions of the Kerala Act.
(2) SRO No. 75/60 should be understood within the limitations of
sections 110(2) and 40(1)(a) of the Kerala Act.
(3) The benefit of remission of stamp duty is available only in
B 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.
(4) The benefit of remission can be claimed by the society only if,
but for such remission, the society, an officer or the member as
C the case may be, would have been liable to pay such stamp duty.”
Hence, the present appeals.
5. Shri Gopal Sankaranarayanan, learned Senior Advocate and
S/Shri Haris Beeran, K. Rajeev and R. Nedumaran, learned counsel
D have appeared on behalf of the respective appellants and Shri Jayanth
Muthraj, learned Senior Advocate has appeared on behalf of the
respondents.
5.1 Learned counsel appearing on behalf of the appellants have
vehemently submitted that the Full Bench of the High Court has erred in
holding that on the sale deeds in question executed by the members of
E
the society in favour of the society and the respective sale deeds executed
by the society in favour of its members respectively, there shall not be
any remission of stamp duty.
5.2 Learned counsel appearing on behalf of the appellants have
vehemently submitted that in view of Section 110(2) of the Kerala Act,
F
1969, the notifications issued under the Travancore Act, 1951 and the
Madras Act, 1932 are saved and they are deemed to have been issued
under the Kerala Act, 1969. It is submitted that therefore SRP No. 75/
60 which was issued in exercise of powers conferred under the
Travancore Act, 1951 and the Madras Act, 1932, which provides for
G remission of stamp duty on the instruments executed by the co-operative
society or executed by a member in favour of the society, shall be
applicable and therefore on the instruments/sale deeds in question, there
shall be remission of stamp duty.
5.3 It is also submitted on behalf of the appellants that in the
H instruments/sale deeds in question, it is specifically provided that the
KERALA LAND REFORMS & DEVELOPMENT CO-OPERATIVE SOCIETY 551
LIMITED v. THE DISTRICT REGISTRAR (GENERAL) [M. R. SHAH, J.]

liability to pay the stamp duty would be upon the society and therefore A
also and considering the relevant provisions of the Kerala Act, 1969,
there shall be remission of stamp duty.
5.4 It is further submitted that denying the remission of stamp
duty paid on the instruments/sale deeds in question would defeat the
object and purpose of providing the exemption from payment of stamp B
duty with respect to society.
5.5 Making the above submissions, it is prayed to hold that on the
instruments/sale deeds in question executed either by the members of
the society in favour of the society (Civil Appeal Nos. 6588/2015 &
6830/2022) and the sale deeds executed by the society in favour of its C
respective members (rest of the civil appeals), there shall be remission
of stamp duty as per clause 1(a) of SRO No. 75/60.
6. While opposing the present appeals, Shri Jayanth Muthraj,
learned Senior Advocate has vehemently submitted that on true
interpretation of Section 110(2) of the Kerala Act, 1969 and having found D
that the Travancore Act, 1951 and the Madras Act, 1932 and SRO 75/
60 issued in exercise of powers under the aforesaid Acts are not saved
as they are inconsistent with the provisions of the Kerala Act, 1969
(Section 40 of the Kerala Act, 1969).
6.1 It is submitted that as per SRO 75/60, the instruments executed E
by or on behalf of any registered co-operative society; instruments
executed by officer of such society and instruments executed by a
member in his own capacity or/and in the capacity of a Guardian of
minor and relating to the business thereof, there shall be remission of
stamp duty. It is submitted that however so far as the Kerala Act, 1969
is concerned, as per Section 40 thereof, on the instruments executed by F
or on behalf of a society or by an officer or member thereof and relating
to the business of such society and 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, there shall be remission of stamp duty. It is
submitted that as per Section 40 of the Kerala Act, 1969, there shall not G
be any remission of stamp duty in case any instrument is executed by a
member in his own capacity or/and in the capacity of a Guardian of a
minor, which was there in SRO 75/60. It is submitted that as per Section
30 of the Kerala Stamp Act, the payment of stamp duty is exempted in
respect of documents/sale deeds/instruments executed by or on behalf
H
552 SUPREME COURT REPORTS [2022] 13 S.C.R.

A of a co-operative society. It is submitted that therefore when the society
is not liable to pay the stamp duty, there is no question of any remission
of stamp duty. It is submitted that therefore the respective appellants
shall not be entitled to remission of stamp duty on the instruments/sale
deeds in question.
B 7. We have heard learned counsel for the respective parties at
length.
The appellants herein are claiming remission of stamp duty on the
respective instruments/sale deeds, the particulars of which are reproduced
hereinabove. In two cases, the sale deeds are executed by the members
C in favour of the society and in rest of the cases, the sale deeds are
executed by the society in favour of respective members. The respective
appellants are claiming the benefit of remission of stamp duty under
clause 1(a) of SRO 75/60. It is 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.
D However, 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 Act, 1969, the provisions of the repealed Acts and/
or the notifications and/or orders issued under the repealed Acts is/are
E saved and/or deemed to have been issued under the Kerala Act, 1969 to
the extent the same is not at variance or inconsistent with the provisions
of the Kerala Act, 1969. The following chart would demonstrate to what
extent clause 1(a) of SRO 75/60 is inconsistent with Section 40 of the
Kerala Act, 1969:

F

G

8. From the aforesaid, it is apparent that the instruments executed
by a member in his own capacity or/and in the capacity of a Guardian of
H
KERALA LAND REFORMS & DEVELOPMENT CO-OPERATIVE SOCIETY 553
LIMITED v. THE DISTRICT REGISTRAR (GENERAL) [M. R. SHAH, J.]

a minor, which was there in clause 1(a) of SRO 75/60 is missing insofar A
as Section 40 of the Kerala Act, 1969 is 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
B
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, C
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) as has been contended on behalf of the appellants. 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
D
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.
9. In view of the above and for the reasons stated above, the
appellants herein shall not be entitled to the benefit of remission of stamp
duty on the instruments/sale deeds in question. Such instruments/sale
deeds in question cannot be said to be executed by or on behalf of a E
society or by an officer or member thereof relating to the business of the
society. We are in complete agreement with the view taken by the Full
Bench of the High Court.
10. Under the circumstances, all these appeals fail and the same
deserve to be dismissed and are accordingly dismissed. However, there F
shall be no order as to costs.

Bibhuti Bhushan Bose Appeals dismissed.
(Assisted by : Preetam Bharti, LCRA)
G

H