DIGAMBAR JAIN Vs. SUB REGISTRAR STAMPS INDORE
LAWS(MPH)-1969-8-6
HIGH COURT OF MADHYA PRADESH
Decided on August 04,1969

Digambar Jain Appellant
VERSUS
Sub Registrar Stamps Indore Respondents

JUDGEMENT

A.P.SEN, J. - (1.) THE Chief Controlling Revenue -authority, Madhya Pradesh (hereinafter referred to as 'the Revenue -authority') has stated this case under Section 55(1) of the Indore Stamp Act (No. II of 1907) (hereinafter referred to as 'the Act'), referring the following questions for the opinion of this Court: - - (1) Whether the trust -deed dated 11 -9 -57, as on record, is to be held to be a 'declaration of trust' of or concerning any property, or a 'conveyance' within the meaning of Section 2(9) of the Act; and (2) Whether the stamp duty leviable on the document will be governed by Article 47 -A of Schedule I to the Act or by Article 17 of the Schedule.
(2.) THE circumstances giving rise to this reference, briefly stated, are these. By a deed executed on 11th September 1957, seven persons, describing themselves as the Panchas managing the affairs of 'Shri Digambar Jain Tera Panthi Mandir of Indore' and its properties, transferred the management thereof to a committee of eleven trustees named in the deed, defining their functions, powers and duties. The deed recited, inter alia, that after the constitution of this committee of management, the entire property of the temple valued at Rs.1,18,651.00 would no longer be in the supervision and control of the Panchas but the management thereof would stand 'transferred' to the trustees. It was engrossed on a stamp -paper worth Rs.18.75 Paise and was presented by the trustees before the Sub -Registrar, Indore for registration. According to the Sub -Registrar, the deed amounted to a 'conveyance' and, as such, should have borne stamp worth Rs. 1,462.50 Paise. Therefore, under Section 37 of the Act, he forwarded the deed to the Collector along with his opinion, for an adjudication as to the proper stamp duty payable thereon. The Collector, agreeing with the Sub -Registrar, held the instrument to be deficiently stamped; and, upon his determination that it was chargeable with a duty of Rs.1,462.50 Paise as a deed of conveyance, directed under Section 39(1)(b) of the Act that the trustees should make good the deficit of Rs.1,443.75 Paise, and since the matter concerned a trust, a nominal penalty of Rs.5.00 was imposed. Being aggrieved by the decision of the Collector, the trustees preferred a revision before the Board of Revenue, Madhya Pradesh, which has been invested with the powers of the Chief Controlling Revenue authority. The members of the Board of Revenue dealing with the revision as the Chief Controlling Revenue -authority for the time being expressed conflicting views on the question. Shri K. Radhakrishnan, President of the Board of Revenue, held that the document was a conveyance as defined in Section 2(9) of the Act and not a mere declaration governed by Article 47 -A of Schedule I to the Act. His successor -in -office Shri Y. Bhargava reviewed that decision at the request of the trustees for the purpose of making a reference and found that there were errors apparent on the face of the record. The result was that the revision, was re -heard by Shri R. C. Rai Poddar, President, Board of Revenue, who was of the view that the deed in its recitals tends to show that what was intended by the Panchas was not merely to make a declaration of trust but also to transfer their rights of ownership in specific trust property. In other words, the learned President indicated that the document in question effected both a declaration of trust as well as a conveyance of the trust property to the trustees, and, therefore, being an instrument comprising of two distinct transactions, it was governed by Article 47 -A of Schedule I to the Act. However, since the matter regarding the proper stamp duty leviable was not free from doubt, he has made this reference. The answer to the questions referred depends on whether the instrument in question was a conveyance within the meaning of Section 2(9) or one making a declaration of trust under Article 47 -A of Schedule I to the Act. The recitals in the instrument which are material for answering the questions are these: ge mijksDr iapksa us vius rkjh[k 2'&&'' ds izLrkokuqlkj fuf'pr fd;k gS fd bl laLFkk dh lc dh lc vpy tk;nkn vkSj laifk tks fd ifjf'k"V c esa vkSj py laifk ifjHkwfr;ksa uxnh] tk;nkn] bR;kfn tks fd ifjf'k"V c esa fufgr gSa rFkk tks fd bl nLrkost dk ,d tks Lo:i blds lkFk uRFkh gS vkSj ftl esa fd bl laLFkk dk vHkh rd dk;ZHkkj lqpk: :i ls pykus ds QyLo:i iapksa dk iw.kZ :i ls dkuwuh vf/kdkj Fkk] mls vkt ge /kkfeZd HkykbZ fn tSu ds Kkuo'f)] lekftd] uSfrd] vkS|ksfxd ,oa /kkfeZd mRFkku ds gsrqq izpfyr fof/k fo/kku ds vuqlkj mijksDr VLVh;ksa dks vius laiw.kZ vf/kdkjksa ,oa nkf;R;ksa ds lkFk laHkkyus] lqO;oLFkk djus] j{kk djus ;k dk;Z lqpk: :i ls pykus ds fy;s lkSairs gSaA bl le; tks vf/kdkj ekydkuk ok okjlkuk mijksDr iapksa dk Fkk ogh lc vf/kdkj ekydkuk ok okjlkuk vkt ls VLVh;ksa dk gksxkA oSls rks ;g igys ls gh ,d fjyhtl vkSj pSfjVscy VLV gS ijUrq dksbZ fyf[kr vkSj oSKkfud :i ls MhMds u gksus ds dkj.k ;g dk;Z fd;k tk jgk gS bl VLV ds dk;ZHkkj dks lqpk: :i ls pykus gsrq ge mijksDr iap bl VLV ds fuEufyf[kr ms';] fu;e] ;kstuk ,oa 'krsZ cukrs gSaA bl VLV dk uke Jh fnxacj tSu rsjk iaFkh eafnj VLV 'kDdj cktkj bUnkSj jgsxkA tks tk;nkn bl nLrkost ds vuqlkj VLVh;ksa dks VLV dh gSfl;r ls nh tkrh gS] ml ij VLVh;ksa dk iw.kZ vf/kdkj gksxk ijUrq lkFk gh mudk ;g nkf;Ro gS fd tgka rd gks lds os bl ckr dk /;ku vo'; j[ksa fd VLV ds ewyou ;kus py vkSj vpy laifk esa deh u gksus ikosA** The entire controversy turns on the meaning of the expression Ekydkuk ok okjlkuk** appearing in the deed. Before dealing with the questions referred, it would be convenient to refer to the provisions of Section 2(9) and Articles 17 and 47 -A of Schedule I to the Act: "Section 2 (9).
(3.) IN this Act, unless there is something repugnant in the subject or context, 'conveyance' includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically -provided for by Schedule I". "Article 17. Conveyance (as defined by Section 2 (9)), not being a Transfer charged or exempted under No. 45 - -where the amount or value of the consideration for such conveyance as set forth therein exceeds Rs.900/ but does not exceed Rs.1,000 ... Twelve rupees eight annas; and for every Rs.500 or part thereof in excess of Rs.1,000 ... Six rupees four annas". "Article 47 -A. Declaration of Trust of or concerning any property when made by any writing not being a will ... The same duty as on a Bond (No. 12) for a sum equal to the amount or value of the property concerned as set forth in the instrument but and twelve annas." These provisions are in pari materia with Section 2(10), Article 23 and Article 64 -A respectively of the Indian Stamp Act (No. II of 1899), which, with such modifications as felt necessary, seems to have been extended by the Holkar Darbar to the erstwhile Indore State. ;


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