- (1.) These three Rules arise out of a proceeding under Section 5A of the West Bengal Estates Acquisition Act. 1953.
(2.) By three registered deeds - dated February 15, 1954, purported to be deeds of settlement, one Benoy Krishna Samanta transferred certain agricultural lands in the district of Burdwan, including homesteads and tanks, to his two daughters, Umasashi Chaudhuri and Bhola Dasi Chaudhuri. The former got 8.89 acres, and the latter 7.19 acres. These transfers were enquired into by an Assistant Settlement Officer empowered under Sub-section (4) of the aforesaid Section 5A. He found that the alleged Deeds of Settlement were really Deeds of Gift and held the transfers to be not bona fide which consequently stood cancelled under Sub-section (2) of the said section. Appeals preferred by the transferees under Sub-section (6) of the section against the orders passed by the Assistant Settlement Officer were also dismissed except for one minor modification that the transfers, so far as the homesteads were concerned, were saved and declared to be unaffected by the order of cancellation. Dissatisfied with the orders of the Appellate authority dismissing the appeals, the transferees moved this Court under Article 227 of the Constitution, giving rise to the instant Rules; Umasashi Chaudhuri is the Petitioner in Civil Rules No. 931 and 932 of 1961 and Bhola Dasi Chaudhuri is the Petitioner in Civil Rule No. 933 of 1961.
(3.) Mr. Panchanan Chaudhuri, learned Advocate for the Petitioners, raised several questions about the scope and applicability of Section 5A of the West Bengal Estates Acquisition Act. These questions are, however, no longer resintegra; a Division Bench of this Court has already considered these questions elaborately and answered them in two separate but concurring judgments in the case of Ambujakshya Banerjee v. The State of West Bengal Civil Rule No. 189 of 1962 (unreported). The first and, as it appeared, the main, argument of Mr. Chaudhuri for the Petitioners was that the Assistant Settlement Officer was vested with only limited powers for holding an enquiry under Section 5A and had no jurisdiction to construe the impugned documents as Deeds of Gift when the documents themselves were styled as Deeds of Settlement. The next step in the argument on this point was that if the transaction was a settlement, and not a gift, there was no transfer within the meaning of that term as defined in Sub-section (7)(iii) of Section 5A which includes only transfer by sale, mortgage, lease, exchange or gift. In support of his argument Mr. Chaudhuri relied on the definition of "settlement" in Section 2(24) of the Indian Stamp Act. All these arguments were considered in the decision of the Division Bench referred to above. P.B. Mukharji, J., presiding over the Bench, held on this point as follows: The Stamp Act cannot be of any great assistance to the Petitioner on the true meaning and interpretation of the word 'transfer'. Whether a transfer is a settlement or gift is to be determined with reference to the substance of the transaction in question. No doubt different rates under the Stamp Act are indicated for gifts and deeds of settlement ; but they, in our view, are not decisive in determining the real question and nature of transfer. The Court is never concluded by the apparent tenor or description of the instrument or by the stamp put on it but is always free to decide this point according to the real nature and substance of the transfer involved... It is to be emphasised that the stamp duty is really and fundamentally a duty on the instrument and not on the transaction itself.;