- (1.) T. George Joseph, C. C. R. A. Heard the learned Counsel for the revisionist and departmental representative.
(2.) THE facts of the case are as follows: Radhey Shyam son of Brij Lal exeuted a lease deed in favour of Smt. Kalawati, his wife, Ashok Kumar, his son, and Smt. Vijaya Devi, wife of Ashok Kumar. This lease-deed was for a period of 32 years. However, this deed is not in question in the present proceedings. THE relevant document under scrutiny in these proceedings is a Power of Attorney executed by Smt. Kalawati and Smt. Vijaya Devi in favour of Sri Ashok Kumar. This Power of Attorney authorises Ashok Kumar to obtain a loan from LIC, construct a building on the land and let out the building to any person on rent. He was also authorised to sell the land, if required. THE relevant portion in the document says as follows: "we further agree and convenant that the so long as the advances made by the LIC of India or any other financial Bodies on the basis of the document executed by our Attorney in pursuance of this power have not been re-paid in full, the power shall be irrevocable. " The learned Counsel for the revisionist has argued that irrevocability is conditional and therefore the document cannot be said to be irrevocable. In order to examine these questions, it is useful to look at the specific entry in the Schedule I-B of Stamp Act. The relevant entry is as follows: 48. When irrevocable authority is given to the Attorney to sell immoveable property. The same duty as a conveyance on the market value of the property forming subject of such authority. '' A reading of the entry makes it clear that it makes a distinction between revocable Power of Attorney and irrevocable Power of Attorney. There is no other attributies to the documents which makes any difference to the chargibility. If the Power of Attorney is revocable it will be treated as an ordinary Power of Attorney chargeable with Rs. 100 or less. But if it is irrevocable, it will be chargeable as a conveyance. Therefore this Court has an option to treat the document either as revocable or as irrevocable only. The relevant paragraph of the Power of Attorney makes it clear that the document is irrevocable for a period. It may be 10 years or may be even a month, but there is no doubt that the document is irrevocable for some period of time.
(3.) IF the Court is under compulsion to categorise the document either as irrevocable or as revocable and the document clearly declares itself as irrevocable for a specific period, this Court finds it impossible and illogical to term the document as revocable. Therefore the document has to be put in the category of irrevocable document. In the impugned order the Power Court has calculated the chargebility on certain other additional grounds of one of which one is the value of the building calculated on the basis of 300 times of the monthly rent. The learned Counsel for the revisionist has argued that at the time of the execution of the Power of Attorney the new building was not in existence. There was a disfunctional petrolpump and some rooms attached to it. However, the Power of Attorney in question itself speaks of the executants desire for constructing a building for Padrauna branch of L. I. C. of India. The revisionist has also produced a copy of letter from the branch of Divisional Office, Gorakhpur dated 1-5-92 which has accepted the proposal for the construction of a buildings. Therefore it is not proper to calculate the value of the present building for the purpose of evaluating the property involved in the document in question. Justice demands that the department makes a fresh enquiry and finds out the value of the property that existed on the land in question on the date of the execution of the document.;