K. C. Agrawal, J. - (1.) THIS is a reference made by the Chief Controlling Revenue Authority, the Board of Revenue, Allahabad under Section 57 of the Indian Stamp Act. The questions referred to us are these :- 1. Whether the Board is competent to refer this instrument to the High Court under Section 57 of the Stamp Act in view of the fact that the Collector, Dehradun, had already determined Rs. 2.25 as proper duty payable on a similar document ?
(2.) WHETHER the document is an instrument of lease as defined in Section 2(16) of the Stamp Act and is chargeable with duty under Article 35(a)(v) Schedule 1-B thereof ? If not, whether it is a conveyance in consideration of Rs. 16,50,000/- and is liable to duty under Article 23, Schedule I -B, ibid ? If the document is neither a lease nor a conveyance then whether it is a mere agreement chargeable with duty under Article 5(c) Schedule I-B ibid ?
(3.) IF the document does not fall in any of the categories aforesaid, then, what is the correct nature of the deed and what stamp duty is payable thereon ? 2. The statement of the case submitted by the Board of Revenue shows that the document under reference was executed by 1. The Governor of Uttar Pradesh and 2, M/s. Indian Drugs and Pharmaceuticals Limited (a Government of India Undertaking). By this agreement the State Government agreed to allow the Company to draw 11 cusecs of water from river Ganga at Rishikesh annually for a period of 25 years in consideration of yearly payment of Rs. 6,000/- per cusec, i.e. Rs. 66,000/- per annum. When this document was submitted to the Collector, a doubt arose about its true nature. Thereupon, the matter came up before the Board of Revenue. Having found that important questions of law were involved, the case was referred to the High Court under Section 57 of the Stamp Act for decision of the questions already mentioned. 3. A look at the agreement reveals, the following salient features :- 1. The Company was entitled to take 11 cusecs of water per year from river Ganga. 2. The Company had to pay Rs. 6,000/- per cusec per annum, 3. This amount was to be paid by the Company after giving due credit to the water returned by the Company in a particular year. 4. The Company had to make its own arrangement for taking the water supply from such place in the Ganga river as the Chief Engineer permitted. 4. Before proceeding to decide the questions referred to us, it appears appropriate to mention, briefly, the principles applicable in interpretation of a document required to be stamped. In order to determine whether a document is sufficiently stamped, the Court must look at the entire document. For finding out the true character of an instrument one has to read the instrument as a whole and then to find out the dominant purpose. 5. Now the first question that arises is whether the agreement is a lease. The term lease has been defined in Section 2(16) of the Indian Stamp Act as under :- "Lease - "Lease" means a lease of immovable property, and includes also (a) a patta; (b) a Kabuliyat or other undertaking in writing, not being a counterpart of a lease, to cultivate, occupy or pay or deliver rent, for immovable property; (c) any instrument by which tolls of any description are let; (d) any writing on an application for a lease intended to signify that the application is granted". It would thus be found that a lease in order to be covered by the definition given above must be in respect of an immovable property. The expression 'immovable property' has not been defined in the Stamp Act. The Transfer of Property Act also does not define it except to say that immovable property does not include standing timber, growing crops or grass. Section 3 of the General Clauses Act, however, defines 'immovable property' as including benefits that arise out of the land. In the instant case, as we have seen above, the agreement was in respect of taking off 11 cusecs of water by the respondent Company. In order that the instrument could be described as lease, it was necessary that the water was found to be immovable property. Black's Dictionary, Fourth Edition, at page 1761 gives the meaning of the word "water" as under :- "Water is neither land nor tenement nor susceptible of absolute ownership. It is a movable thing and must of necessity continue common by the law of nature. It admits only of a transient usufructuary property and if it escapes for a moment, the right to it is gone for ever, the qualified owner having no legal power of reclamation. It is not capable of being sued for by the name of 'water' nor by the calculation of its cubical or superficial measure, but the suit must be brought for the land which lies at the bottom covered with water. As water is not land, neither is it a tenement, because it is not of a permanent nature, nor the subject of absolute property. It is not in any possible sense real estate, and hence is not embraced in a covenant of general warranty. Mitchell v. Warner 5 Com 518." It could be seen that water is neither land nor a tenement. Accordingly, water could be considered only as movable property. As the instrument does not create any right over any immovable property, the same could not be considered as a lease.;