KAN SINGH, J. - (1.) THIS revision application, which is directed against an interim order dated 5.7.63 passed by the Senior Civil Judge, Jaipur, City No. 1, in a partition suit, raises the question about the admissibility of two documents evidencing a partition dated 19.2.1932 and 21.2.1932, respectively, on the ground that they were unstamped.
(2.) PLAINTIFF Raja Hari Singh and the defendant Raja Ishwari Singh were the sons of one Raja Bishan Singh. One Raja Udai Singh had died issueless and his widow Maji Panwarji adopted two persons Raja Kishan Singh and Raja Bishan Singh to her husband under some special orders of then Maharaja of Jaipur. We are not concerned with the validity of the adoption of two persons simultaneously as, it is common ground between the parties that it was in pursuance of the Ruler's order. The estate of Raja Udai Singh was partitioned between these two brothers under an arrangement sponsored by Maji Panwarji the widow of Raja Udai Singh. Raja Kishan Singh had no issue of his own, whereas Raja Bishan Singh had three sons, namely, Raja Ishwari Singh the defendant, Raja Hari Singh the plaintiff and Raja Dharam Singh. Raja Dharam Singh went in adoption to Raja Kishan Singh. The present partition suit relates to the estate of Raja Bishan Singh. In this suit the plaintiff Raja Hari Singh placed reliance on the two documents of partition between Raja Bishansingh and Raja Kishansingh executed in the year 1932. An objection was raised by the defendant to the admissibility of these two documents on the ground that they were not properly stamped in accordance with the Jaipur Stamp Act of Samvat 1983, which came into force from 1.3.1927. The learned Senior Civil Judge, placing reliance on Miran Baksh and others vs. Emperor (1), came to the conclusion that, as the value of the property to be partitioned was not mentioned in these deeds, no stamp duty could be levied on them with the result that they were not rendered inadmissible. Aggrieved of this order the defendant came up in revision to this Court and the revision was heard, in the first instance, by a learned Single Judge of this Court. As the learned Judge felt that the question raised in the revision was of some importance the case was referred to a larger Bench. This is how the matter is before us. The first document is Ex-1, dated 19.2.1932. It conveys the blessings of Maji Panwarji to her two sons Lalji Kishan Singh and Lalji Bishan Singh and states that the two brothers having requested the Maji for effecting a partition she was doing so. Then the various portions falling in the shares of the two brothers were specified and it was ordained that the two brothers shall remain in possession and enjoyment of their respective shares. The deed then recited the open space and apartments that were to continue as joint. Then the document states that both the brothers had accepted this partition and had undertaken to abide by it failing which they were to incur the displeasure of Shri Ji (perhaps it meant the Ruler). The document does not bear the signatures of the Maji, but the two brothers Raja Kishan Singh and Raja Bishan Singh signed it in token of their acceptance. The other document dated 21.2.1932 is, more or less, in the same terms. Mr. P.C. Bhandari, learned counsel for the respondent, attempted to argue that these two documents were not instruments of partition, but were awards about partition and they were incomplete as the person giving the award, namely, the Maji Panwarji had not signed them. Apart from the fact that both the parties had hithertofore made it a common ground that these were instruments of partition, we are satisfied on a consideration of the tenor of these documents that they were partition deeds. The documents clearly recite that the partition was made with the concurrence of both the brothers and that they had accepted it. It is not clear that there was any dispute between the brothers which they wanted to be settled by their mother. It seems that the parties approached their mother who they thought was the most impartial person and so with her blessings they wanted to have the partition. All the same the deeds were nothing short of partition as it is clearly recited therein that the partition was being made with the concurrence of both the brothers and to it both of them were agreeable. In the circumstances we are not impressed by the argument of the learned counsel for the respondent that the documents were anything else than partition deeds. The learned counsel for the respondent then raised a preliminary objection to the effect that the Jaipur Stamp Act of Samvat 1983 was passed by the Regency Council during the minority of the Maharaja of Jaipur and as it was not published in the official gazette of the State in accordance with sec. 7(b) of the Jaipur Laws Art, 1923, it cannot be said to have come into force in the State. The attention of the learned counsel was drawn to the Validating Law enacted by the Rajasthan Legislature known as the Jaipur Laws (Validating) Act, (Act No.XXXI of 1952), 1952. Sec. 2 thereof ran as under: - "Sec. 2. Validation of certain Jaipur Laws: - -Notwithstanding anything contained in the Jaipur Laws Act, 1924, or the Jaipur General Clauses Act, 1944, or in any other law or in any judgment, decree or order of any court, no Jaipur law shall be deemed to be, or ever to have been invalid by reason merely of the fact that such law was not published in the official Gazette or otherwise duly promulgated or published; and every such law shall, notwithstanding that it was not so promulgated or published, be deemed to have come into force on the date on which it was made and to have been or to be, in force until repealed by any competent legislative authority." The learned counsel submitted that this Validating Law makes a mention of the Jaipur Laws Act, 1924, and not of the Jaipur Laws Act of 1923. The learned counsel accordingly urged that the Validating Act, in the circumstances, will not cover the defect that was occasioned by the non-fulfilment of the requirement of the Jaipur Laws Act, 1923. The learned counsel, however, candidly conceded that there was no Jaipur Laws Act, 1924, and there was only one Jaipur Laws Act, 1923, though put on the statute book in the year 1923, came into force on 1.11.1924 vide sec. 2 thereof. The approach suggested by the learned counsel for the respondent is a much too narrow one. The discrepancy about the year will not detract from the underlying intention of the legislature. The object of interpreting statutes is to discover the intention of the legislature and there is a very strong presumption that the legislature does not intend an unreasonable or irrational result. Canons of construction have never been held to be so rigid as to prevent a realistic solution of a problem about interpretation. The legislature could not but have meant the Jaipur Laws Act, 1923, and making a mention of Jaipur Laws Act, 1924, was nothing but a reference to the Jaipur Laws Act as was in force for the time being and as there was only one Jaipur Laws Act in force, we are satisfied that the Validating Act condones non-fulfilment of the requirements of the Jaipur Laws Act, 1923. The contention of the learned counsel for the respondent has thus no substance and has to be rejected. We may now deal with the various provisions of the Jaipur Stamp Act of Smt. 1983, which is a faithful copy of the Indian Stamp Act, though at places the numbering of sections is different and some sections have been omitted. Sec. 3 of the Jaipur Act, which is the definition section, corresponds to sec. 2 of the Indian Act. The definition of the term "Bond" as given in the Jaipur Act is the same as that given in the Indian Act and is as follows: "Bond" includes - (a) any instrument whereby a person obliges himself to pay money to pay another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be; (b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and (c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another." Similarly, the definition of the term "duly stamped" is also the same and is as follows: "Duly stamped', as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in Jaipur territory." Sec. 4 of the Jaipur Act lays down as to what instruments shall be liable to duty and it corresponds to sec. 3 of the Indian Act. It is as follows: "Sec. 4. The following instruments shall be chargeable with duty of the amount indicated in schedule I as the proper duty therefor: (a) every instrument mentioned in Schedule I which, not having been previously executed by any person, is executed in Jaipur territory on or after this Act comes into force. (b) every bill of exchange, cheque or promissory note drawn or made out and payable in Jaipur territory on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred, or otherwise negotiated in Jaipur territory. (c) every instrument (other than a bill of exchange cheque or promissory note) mentioned in that schedule, which, not having been a previously executed by any person, is executed out of Jaipur territory on or after that day, relates to any property situate, or to any matter or thing done or to be done, in Jaipur territory and is received in Jaipur territory. Provided that no duty shall be chargeable in respect of any instrument executed by, or on behalf of, or in favour of, the Durbar in cases where, but for this exemption, the Durbar would be liable to pay the duty chargeable in respect of such instrument." Sec. 29 of the Jaipur Act which corresponds to sec. 35 of the Indian Act declares that instruments not duly stamped shall be inadmissible in evidence. The material portion of this section is as follows: "Sec. 29. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped: Provided that - (a) any such instrument, not being an instrument chargeable with a duty of one anna only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when three times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to three times such duty or portion; ................" Sec. 24 of the Jaipur Act required that facts affecting duty were to be set forth in the instrument. This corresponds to sec. 27 of the Indian Act and is as follows: "Sec.24. The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set-forth therein." Sec. 55 of the Jaipur Act which corresponds to sec. 64 of the Indian Act renders the person not complying with the requirement of sec. 24, liable to punishment and he can be prosecuted under that section.
(3.) LEARNED counsel for the respondent submits that inasmuch as the so-called partition deeds do not contain the valuation about the property partitioned, the executants might have been liable to prosecution, but for want to valuation of the property in the instruments were not liable to stamp duty. This position is controverted by the learned counsel for the petitioner defendant. According to the charging section, namely, sec. 3 in the Indian Act and sec. 4 of the Jaipur Act, the duty is chargeable on instruments as distinguished from the transaction that they incorporate. The scheme of the Stamp Act accords with the scheme of taxation of instruments in England as will appear from the following passage from Lord Esher's judgment in Commissioners of Inland Revenue vs. Angus (2), on which reliance was placed by learned counsel for the respondent also. "The first thing to be noticed is that the thing which is made liable to the duty is an 'instrument'. If a contract of purchase and sale or a conveyance by way of purchase and sale, can be, or is, carried out without an instrument, the case is not within the section, and no tax is imposed. It is not the transaction of purchase and sale which is struck at; it is the instrument where by the purchase and sale are effected which is struck at. And if anyone can carry through a purchase and sale without an instrument, then the legislature have not reached that transaction." It is, however, evident from sec. 3 of the Indian Act that every instrument mentioned in the schedule is chargeable with duty of the amount indicated therein. Sec. 3 is subject to certain exemptions, but it is nobody's case that this class of instruments under consideration is covered by any of the exemptions cotem-plated in sec. 3. Thus, if the instruments in question can be said to be covered by any of the articles in the schedule then they shall be chargeable to duty. As to what will be the proper duty to be charged will be another matter, but so far as chargeability is concerned there can be no doubt if once it is found that the instrument is of the nature dealt with in the schedule. As we have already observed, the documents are instruments of partition and will thus be covered by Art.23 of the Schedule of the Jaipur Act, which corresponds to Art.45 of the Indian Act, the relevant portions thereof are as follows: "Description of Instrument. Proper Stamp-duty. 23. Partition - Instrument of (as defined by sec. 3(13). The same duty as a bond for the amount of the value of the separated share or shares. N.B. - The largest share remaining after the property is partitioned (or if there are two or more shares of equal value and not smaller than any of the other shares, then one of such equal shares) shall be deemed to be that from which the other shares are separated." It thus enacts that the duty on a partition deed is the same as on a bond. A bond is dealt with under Art.9 of the Schedule to the Jaipur Act. It corresponds to Art.15 of the Schedule to the Indian Act. The relevant portion thereof is as follows: "Description of Instrument. Proper Stamp duty. 9. Bond (as defined by sec 3(4) - Where the amount or value secured does not exceed Rs. 25/-. Four annas Where the amount or value secured does not exceed Rs. 50/- Eight annas Where the amount or value secured does not exceed Rs. 100/- One rupee For every Rs. 100/-, or part thereof in excess of Rs. 100/-upto Rs. 500/-. One Per cent For every Rs. 500/- or part thereof in excess of Rs. 5000/- Two rupees and eight annas." It will be evident from the above that a minimum duty is fixed when the value of the bond does not exceed Rs. 25/--. The learned counsel for the respondent submitted that the partition deeds did not mention any valuation of the property and, therefore, in such a case no duty is chargeable. This is, however, against the tenor of Art.9 of the First Schedule to the Jaipur Act. Where no value is fixed it may be a case of "nil value", but in that event the minimum duty shall be chargeable. In other words, it cannot be argued that the instrument is not chargeable with any duty whatsoever. If we contrast the frame of this article with Arts.23, 31, 33, 54, 55 and 58, one important distinction is noticeable. The words "as set forth therein" occur in these articles which are conspicuously absent in Art. 9. This relevant portion of one article is reproduced hereunder for appreciating the difference; Art. 23. Conveyance (as defined by sec 2(10), not being a Transfer charged or exempted under No. 62 - where the amount or value of the consideration for suck conveyance as set forth therein does not exceed Rs. 50/-. Eight annas." The scheme of the Stamp Act seems to be that the chargeability of certain instruments has been made to depend on the value set forth by the parties in the instrument. In some cases fixed stamp fee is chargeable and in other cases the chargeability depends on the value of the subject matter irrespective of what the parties have chosen to set forth. In the last category of cases the court is not bound by the apparent tenor of the instrument, but will decide the question of chargeability to duty according to the real nature of the transaction vide Inland Revenue Commissioners vs. 01iver(3) and Deddington Steamship Company Ltd. vs. Inland Revenue Commissioners (4). Thus to our mind, the documents in question were required to be stamped and as they are unstamped, they were inadmissible in evidence. We may now briefly refer to some of the cases cited by the learned counsel for the parties before us. In re Muhammad Muzaffar Ali (5), the document that fell for consideration was a deed of gift which contained no statement as to the value of the property thereby conveyed. The article that was considered to be applicable was Art. 33 of the First Schedule which laid down that the instrument should be stamped with the same duty as a conveyance for consideration equal to the value of the property set forth in such instrument and when no such value was given in the instrument it was not required to be stamped. This instrument was of the category the chargeability whereof was made to depend on the value set forth in the instrument. It will not thus cover a case of the kind before us. Thus, this case is clearly distinguishable. In Ajodhya Prasad vs. Parashram (6), reliance was placed on the Allahabad case just referred to above. In that case the Collector had certified that the instrument was properly stamped and as according to sec. 42 of the Stamp Act, his decision was final and binding the civil court could not go behind it. This case again is not of any help in dealing with the point before us. ;