C. S. P. Singh, J. - (1.) THE Board of Revenue as the Chief Revenue Controlling Authority has referred to the Court under Section 57 of the Stamp Act the following questions for answers:- "(a) Whether the document under re ference is a conveyance for Rs. 55, 000/-and is chargeable with a duty of Rs. 2, 475 under Article 23, Schedule I-B of the U. P. Stamp Act, 1962 and is also liable to an additional duty of Rs. 4.50 under Art. 5 (c) read with Section 5 of the Stamp Act in respect of the two distinct agreements re garding the sale of Motor Cycle and Jeep car and exchange of certain property. (b) Whether the document is a deed ol dissolution of partnership and is sufficiently stamped with a duty of Rs. 22.50 under Article 46-B, Schedule I-B, ibid. (c) Whether the document is a release of the value of Rs. 55, 000 and is liable to a duty of Rs. 50 under Article 55, Schedule I-B, ibid. (d) Whether the document is merely an agreement between the parties and is chargeable with a duty of Rs. 2.25 under Article 5 (c), Schedule I-B, ibid. (e) If the document is not covered by any of the alternatives aforesaid, what stamp duty is payable in respect thereof under the U. P. Stamp Act, 1962."
(2.) THE answers to these questions depend upon the nature of the document executed by Govind Dass Gupta, Manohar Dass Gupta and Gopal Dass Gupta on the 29th October, 1967. The facts necessary for the decision of the questions referred may be shortly stated. Manohar Dass Gupta, Gopal Dass Gupta and Govind Dass Gupta were carrying on a partnership busi ness known as 'M/s. Ram Manohardas" Govind Dass Gupta retired from the part nership and executed a deed of retirement on the 29th October, 1967. Apart from the other clauses of the deed, with -which we are not concerned in the present refer ence, Govind Dass Gupta, the retiring part ner was to get an amount of Rs. 55, 000 from the firm in full and final satisfaction of all his dues and claims in the business and capital of the firm and its assets. There was also a stipulation that a godown belong ing to Sri Govind Dass Gupta will be ex changed with a piece of land belonging to Manohar Dass Gupta, the continuing part ner and further that Sri Govind Dass Gupta, the retiring partner, will transfer his Motor Cycle and Jeep car to the firm for a consideration of Rs. 5, 000. This document although styled as a deed of re tirement was stamped as a dissolution of partnership and a duty of Rs. 22.50 was paid by the executants. On the document being presented before the Collector, Alla habad, for adjudication under Section 31 of the Stamp Act, the matter was referred to the Board for orders under Section 56 (2) of the Act. The Board took the view that the deed in question was a conveyance exe cuted by the retiring partner in favour of the two remaining partners for a considera tion of Rs. 55, 000 and not merely a deed of retirement or relinquishment and as such was chargeable as a conveyance under Arti cle 23 of Schedule I-B of the Stamp Act and further that the agreements relating to the transfer of the Jeep and Motor Cycle and exchange of godown of the retir ing partner Govind Dass with the land of the remaining partner Manohar Dass Gupta were chargeable as an exchange transfer deeds and were liable to additional duty. At the instance of the executants, the Board has referred the questions noted above to this Court. Learned counsel for the appli cant has not contested the view of the Board in respect of the agreements relating to the sale of the Motor cycle and the Jeep car and the exchange of the immovable pro perties between the retiring partner Govind Dass Gupta and the remaining partner Manohar Dass .Gupta and such, in the pre sent reference, it is not necessary to enter into the second part of the first question which relates to the two agreements relating to the sale of the movable proper ties and the exchange of immovable proper ties. In order to decide the controversy it will be useful to reproduce some clauses of the deed of the 29th October, 1967. "This deed of retirement made this 29th day of October 1967, between Sri Govind Dass Gupta son of Late Ram Dass Gupta resident of Tagore Town Allahabad, hereinafter called the First Party; Sri Mano har Dass Gupta son of late Ramdass Gupta resident of Railway Market, Kharagpur, Dis trict Midnapur, West Bengal, hereinafter called the Second Party and Sri Gopal Dass Gupta son of Late Ram Dass Gupta resi dent of Muthiganj, Allahabad, hereinafter called the Third Party. Whereas the parties to this deed are partners of the firm named and styled as M/s. Ram Dass Manohar Dass and where as the said partnership is carrying on his business of Oil Millers and have got their oil mill at Naini and Kharagpur and also their offices at Calcutta and Jabalpur and whereas the business at Allahabad is carri ed on in the name and style of M/s. Mano har Oil Mill and Engineering Works and Manohar Oil and Flour Mill, Manohar Oil Mill and whereas the head office of the business is situated at Kharagpur is known as Manohar Oil and Flour Mill and where as the First Party has decided to retire from the said business and from the firm M/s. Ramdass Manohardass and whereas the second and third parties have agreed to the retirement of the first party from the said partnership and whereas the First Party has offered to accept a sum of Rupees 55.000/- (Rupees fifty-five thousand) in full satisfaction of all his claim, right, title or interest in the business and assets of thesaid firm........". "NOW THIS DEED WITNESSETH: 1. That the first party has from this day retired from the firm of M/s. Ram Dass Manohar Dass and thereafter all the assets of the said firm including the moveable assets, immoveable assets, book debts, trade marks, name and goodwill shall hereafter belong to and be owned by the second and the third parties who are herein jointly des cribed as the continuing partners and the first party shall hereafter has no right, title or interest whatsoever left in any of the assets of the firm aforesaid and the first party has no claim, right, title or interest left against the firm or against the continu ing partners for and in connection with the business of the firm after the date of retire ment and similarly the firm and the second and the third parties have no claims what soever of any kind against the first party for and in connection with the business of the firm upto the date of retirement, save except as herein agreed between the parties. 2. That the first party shall receive a sum of Rs. 55, 000/- (Rupees fifty five thousand) from the firm in full and final satisaction of all his dues and claims in the business and capital of the firm and the assets thereof and on the payment of the said amount the first party shall have all his claims and interest in the firm duly satis fied. The first party shall transfer to the firm his motor cycle No. U. P. C. 3703 and Jeep Car No. U. P. C. 9580 and the firm shall pay a sum of Rs. 5, 000/- (Rupees five thousand) as the price there of before the first party retires from the firm."
(3.) FROM the recitals in the deed it is clear that the deed is one of retirement by which Govind Dass Gupta went out of the firm and received an amount of Rupees 55, 000/- from the firm in full and final satisfaction of all his dues and claims in the business and capital of the firm and the assets thereof. The result pf the retirement of Govind Dass Gupta from the firm was an enlargement of the share of the remain ing partners. The question, however, is as to whether the deed of retirement can on account of the payment of Rs. 55.000/-from the firm to the retiring partner be. termed as a conveyance as denned in Sec tion 2 (10) of the Act so as to attract duty under Article 23 of Section 1-B or is a deed of release (as has been contended by learn ed counsel for the applicant). The execu tants have given up the contention that the document is chargeable as an agreement or a memorandum of an agreement under Arti cle 5 (c) of Schedule I-B. Before the deed in question can be classified as a convey ance it must be an instrument by which Eroperty, moveable or immoveable, is trans-jrred inter vivos (Section 2 (10) of the Stamp Act). This implies that the execu tant of the deed must have a transferable in terest in the property which is sought to be transferred. It would thus be necessary to see what is the exact nature of the right of a partner in the partnership property. The rights which a partner enjoys in respect of partnership property has been considered by the Supreme Court in the case of A. Narayanappa v. Bhaskara Krishnappa, (AIR 1966 SC 1300). On Page 1303 of the re port their Lordships observed as follows:- "From a perusal of these provisions it would be abundantly clear that whatever may be the character of the property which is brought in by the partners when the partnership is formed or which may be ac quired in the course of the business of the partnership it becomes the property of the firm and what a partner is entitled to is his share of profits, if any, accruing to the partnership from the realisation of this pro perty and upon dissolution of the partner ship to a share in the money representing the value of the property. No doubt, since a firm has no legal existence, the partner ship property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence of the partnership, however, no partner can deal with any por tion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to anyone. His right is to obtain such profits, if any, as fall to his share from time to time and upon the dissolution of the firm to a share in the assets of the firm which remain after satis fying the liabilities set out in Clause (a) and sub-Clauses (i), (ii) and (iii) of Clause (b) of Section 48." ;