Venkatarama Ayyar, J. - (1.) This appeal raised a question under Section 5 of the Indian Stamp Act 2 of 1899. The respondent was, at the material time the Managing Director of Messrs. Bird and Co. Ltd., and of Messrs. F. W. Heilgers and Co.Ltd., which were acting as Managing Agents of several Companies registered under the Indian Companies Act. He was also a Director of a number of the other Companies, and had on occasions acted as liquidator of some Companies, as executor or administrator of estates of deceased persons and as trustees of various estates. On 4-7-1949 he applied to the Collector of Calcutta under S. 31 of the Stamp Act for adjudication of duty payable on a power-of attorney, market as Ex. A in the proceedings, which he proposed to execute. By that power, he empowered Messrs. Douglas Chisholm Fairbairn and John James Brims Sutherland jointly and Several to act for him in his individual capacity and also as executor, administrator, trustee, managing agent, liquidator and all other capacities. The Collector referred the matter under S. 56(2) of the Act to the decision of the Chief Controlling Revenue Authority, who eventually referred it under S. 57 to the High Court of Calcutta stating his own opinion that the stamp duty was payable on the power for as may respective capacities as the principal executes the power". The reference was heard by a Bench consisting of the Chief Justice, Das J. and S. R. Das Gupta J., who differed in their opinion. The learned Chief Justice which whom Das. J agreed, held that the different capacities of the executant did not constitute distinct matters for purposes of S. 5 of the Act and that the proper duty payable on the instrument was Rs.10 under Art. 48(d) of Sch. 1-A, Stamp Act as amended by S. 13 of Bengal Act 3 of 1922. S. R. Das Gupta J. was of the opinion that the different capacities of the executant were distinct matters for the purposes of S. 5 and that the instrument was chargeable with the aggregate amount of duty payable if separate instruments were executed in respect of each of those capacities. In the result, the question was answered in accordance with the opinion of the majority in favour of the respondent. Against that decision, the Board of Revenue, West Bengal has preferred this appeal by special leave, and contends that the instrument in question comprises distinct matters and must be stamped in accordance with S. 5
(2.) The statutory provisions bearing on the question are Ss 3 to 60 of the Act. Section 3 is the charging Section, and it enacts that subject to certain exemptions, every instrument mentioned in the Schedule to the Act shall be chargeable with the duty of the amount indicated therein as the proper duty therefor. Section 4 lays down that when in the case of any sale, mortgage or settlement several instruments are employed for completing the transaction, only one of the them called the principal instrument is chargeable with the duty mentioned in Sch.I, and that the other instruments are chargeable each with a duty of one rupee. Section 5 enacts that any instrument comprising or relating to several distinct matter shall be chargeable with the aggregate amount of the duties with which separate instruments, each comprising or relating to one of such matters, would be chargeable under the Act. Section 6, so far as is material, runs as follows: "Subject to the provisions of the last preceding Section, an instrument so formed as to come within two or more of the descriptions in Sch. I, shall, where the duties chargeable thereunder and different, be chargeable only with the highest of such duties."
(3.) The point for decision in this appeal is as to the meaning to be given to the words distinct matters" in S. 5. The contention of the respondent which found favour with the majority of the learned Judges in the court below is that the word " matters" in Section 5 is synonymus with the word "description" occurring in S. 6, and that they both refer to the several categories of instruments which are set out in the Schedule. The argument in support of this contention is this:Section 5 lays down that the duty payable when the instrument comprises or relates to distinct matters is the aggregate of what would be payable on separate instrument relating to each of these matters. An instrument would be chargeable under S. 3 only if it fell within one of the categories mentioned in the Schedule. Therefore, what is contemplated by S. 5 is a combination in one document of different categories of instruments such as sale and mortgage, sale and lease or mortgage and lease and the like. But when the category is one and the same, then S. 5 has no application, and as, in the present case, the instrument in question is a power-of attorney, it would fall under Art.48 (a) in whatever capacity it was executed, and there being only one category, there are no distinct matters within S. 5.;