R.V. RAVEENDRAN, J. - (1.) THIS appeal relates to the stamp duty payable in regard to a deed of trust dated 9.8.1991 executed by the appellant and his two brothers. The executants paid a stamp duty of Rs. 1,325/ thereon, under Article 64 of Schedule I-B to the Indian Stamp Act, 1899 as amended in U.P. ('Act' for short). The registering authority being of the view that it was not duly stamped, impounded it and referred it to the adjudicating authority. The said Authority made an order that the deed also answered the definition of "settlement" as defined under section 2(24) of the Act, and therefore stamp duty was payable under Article 58 of Schedule I-B of the Act on the declared value of the trust property (Rs.2,10,000/-). He directed recovery of deficit stamp duty of Rs.10,225/- and an equal amount as penalty. The said order was challenged by the appellant by filing a revision before the Chief Controller (Board of Revenue), Allahabad. The revisional authority dismissed the revision by order dated 21.5.1996. The appellant challenged the said order in Writ Petition No.54 of 2002. The High Court dismissed the writ petition holding that the authority under the Stamp Act did not commit any error in construing the instrument to be a "settlement" as defined under section 2(24) of the Act and that stamp duty was payable under Article 58. The said order is challenged in this appeal.
(2.) THE title part of the instrument reads thus : "This deed of Private Trust is made on 9.8.1991 by (names of three Donor Trustees) in order to preserve, protect and manage the property known as 'Mathur Atithi Shala' situated at Chitrakoot, on the following terms and conditions :" THE preamble to the instrument recites that the said property was the self-acquired property of their father and he had constructed the Atithi Shala therein for housing the pilgrims, and the said property is being used for the said purpose ever since then; that they (the three donor Trustees) had inherited the said property from their father and they possess and own the said 'Mathur Atithi Shala' and have full disposing power; that as they were no longer able to manage the property, they decided to form a private trust consisting of the member of the family to look after the said property and have accordingly created the said trust to be known as 'Shri Jamuna Janki Mathur Trust' for the due preservation, protection and management of the said property. THE operative portion of the said deed states : "THE Donor Trustees in pursuance of their wish and desire as aforesaid do hereby grant, convey and transfer all that property i.e. 'Mathur Atithishala' described in the Schedule hereto, unto and to the use of the Trustees to HAVE AND TO HOLD the same in trust for the said donor trustees subject to such powers and limitations as are hereinafter specified. It is made clear that the Trust shall own, possess and manage the Trust Property once and for all." THE deed thereafter proceeded to set down the objects of the Trust which are charitable and religious in nature. It also constituted a Board of Trustees consisting of the three donors and two other family members and an Executive Committee consisting of ten members. It also provided the eligibility criteria for being appointed as a trustee, the term of office of the trustees, the circumstances in which the trustees will cease to hold the office and the powers and duties of the trustees. The appellant submitted that the terms of the instrument clearly make out that it was a deed of trust and not a deed of settlement. Reliance is placed on three Full Bench decisions, namely, Narendra Singh Ju Deo v. Junior Secretary, Board of Revenue [AIR 1947 All 141] The Chief Controlling Revenue Authority, Board of Revenue v. T Ranganathan Pillai [AIR 1981 Mad. 193] and Sardar Deorao Jadhav v. State of Madhya Pradesh [AIR 1991 MP 247]. On the other hand, learned counsel for the State and the authorities under the Stamp Act (respondents 1 to 4) submitted that the instrument in question came within two descriptions in Schedule I-B to the Act, that is "Deed of Settlement" chargeable under Article 58 and "Deed of Trust" chargeable under Article 64; that where an instrument comes within more than one description in Schedule I-B, and the duties chargeable thereunder are different, the instrument should be charged with the highest of such duties; and that as the stamp duty under Article 58 was higher than the stamp duty payable under Article 64, the instrument was chargeable with the stamp duty provided under Article 58. In support of his contention that the instrument also came within the definition of "settlement" as defined under section 2(24) of the Act, he relied upon two full Bench judgments of Allahabad and Delhi High Courts in Board of Revenue, U.P. v. Sridhar, Advocate [AIR 1964 All. 537] and The Chief Controlling Revenue Authority v. Banarsi Dass Ahluwalia [AIR 1972 Delhi 128].
(3.) THE question for consideration is not whether the instrument is a deed of trust or not. THE fact that the instrument falls within the description of Trust deed is not in doubt. In fact that is not challenged by the State. THE question is whether the instrument answers the definition of 'settlement' and therefore would also come under the description of 'settlement deed' in Article 58. THE appellant contends that it will not, and for that purpose relies on the recitals of the trust deed that the Trust is created for preserving, protecting and managing the trust property known as 'Mathur Atithishala' in Chitrakoot. THE state contends that it will, and for that purpose relies on the operative portion of the instrument which shows that the three owners conveyed and transferred their property to the Trustees, to have and to hold the same and to own, possess and manage it as Trust Property. On the contentions raised, the question that arises for consideration is whether the instrument in question which answers the description of 'Trust deed', will also answer the description of "settlement deed", and if so whether stamp duty is payable on the instrument, under Article 58 of Schedule I-B to the Act. Reference to the relevant provisions of the Indian Stamp Act, 1899 (as amended in UttarPradesh) will be necessary to answer the question raised. Section 2(24) of the Act defines settlement thus : "settlement" means any non-testamentary disposition, in writing, of moveable or immoveable property made- (a) in consideration of marriage, (b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or (c) for any religious or charitable purpose; and includes an agreement in writing to make such a disposition and, where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition;" Section 3 provides that subject to the provisions of the Act and the exemptions contained in Schedule I, every instrument mentioned in the Schedule to the Act shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefor. Section 6 provides that subject to the provisions of section 5, an instrument so framed as to come within two or more of the descriptions in Schedule I, (or Schedule IA or IB, as the case may be) shall, where the duties chargeable thereunder are different, be chargeable only with the highest of such duties. Schedule IB (as amended in Uttar Pradesh) enumerates the stamp duty on instruments under the Act in its application to Uttar Pradesh. Relevant portions of Articles 58 and 64 of the said schedule are extracted below : JUDGEMENT_592_JT2_2009Html1.htm ;