- (1.) THIS is a reference by the Revenue Board under Section 57 of the Stamp Act.
(2.) THE material facts are these. THE plaintiff Mst. Takhtibai widow of Modilal, filed a suit against the defendant Prithviraj for possession of a shop and a kotha and the goods lying therein which are alleged to have belonged to her deceased husband as his exclusive property. According to the allegations contained in the plaint, the defendant (who appears to be Modilal's brother, both being described as sons of Chaturbhuj in the plaint) was simply working at the shop as a helper and had no right or title whatsoever to the shop or the goods lying therein or the business which the deceased carried on at this shop. It was also disclosed in the plaint that Modilal died about December, 1953, and had been ill for about a year before his death. This suit was instituted on the 28th May, 1954. Along with the plaint the plaintiff produced a document dated Samwat 2009 Maha Badi 15 alleged to have been executed by the defendant Prithviraj in favour of the plaintiff's husband Modilal. This document translated in English runs as below: " To Dada Bhai Modilalji from Prithvi Raj with respectful compliments. This is to say that the total assets in the shop (details are given but these are immaterial for our present purposes) are of the value of Rs. 4680/ -. I have no right or claim to these. Nor do I have any right to the shop or the house, you may dispose of your property by will or take anybody in adoption as you like. As to the liabilities Rs. 750/- are payable to Dhayji Sarsi Bai and Rs. 500/- to Nanalal and Rs. 200/- to Prithviraj (self ). THEse will be liquidated by sale of the goods lying in the shop. I have written this out of my own free-will and with pleasure. Dated Smt. 2009 Man Badi 15. Signed by Prithviraj. " THE plaintiff also filed an application for the appointment of an interim receiver. What transpired after this is significant. Just three days after the suit was instituted on the 1st June, 1954, the defendant appeared in court and admitted the plaintiff's claim. THE only point he made in his jawabdava was that the entire assets and liabilities belonged to the plaintiff and that the defendant would have nothing to do with them, and to that the plaintiff had no objection. THE suit was accordingly decreed against the defendant on the same day i. e. , the 1st June, 1954. Be that as it may, the learned Civil Judge was of the opinion that the document which has been cited above and which was produced by the plaintiff along with the plaint was a release deed and it was unstamped and so he impounded it under Section 33 of the Stamp Act and forwarded it to the Collector, Udaipur, under Section 38 (2) of the Act. The Collector held that the document was a deed of release under Article 55 of the Stamp Act and direct-ed that the plaintiff Takhtibai should pay Rs. 19/-as stamp duty and Rs. 75/- as penalty on it. The plaintiff then preferred a revision against the above order to the Board of Revenue as the Chief controlling Revenue authority. The learned members of the Board formed the opinion that the document in question was not a release deed. In the concluding portion of the referring order, the learned members express themselves in these words. " There is absolutely nothing in this document to suggest that the executant Prithvi Raj ever had any prior claim to the shop or its assets, and in these circumstances it cannot be said that the document amounts to a release. We are, therefore, of the view that the order of the Collector is untenable. " In the very next sentence, however, the learned Members stated that "the record be therefore submitted to the Hon'ble High Court of Judicature for Rajasthan under Section 57 of the Indian Stamp Act for such orders as may be necessary. '' This is how the present reference has come before us. We may state at the very outset that as the facts stated in the referring order were not as full, as we should have wished, we thought it necessary to send for the original record of the civil case wherein the document in question was produced. We are glad that we did so, because on a mere reading of the referring order and the document executed by Prithviraj, our first impression was that the parties appeared to be brothers and the language of the document was not incompatible with the executant (Prithviraj) having some claim or title to the shop or the assets therein and that he was releasing certain rights in the family property which he might have thought he possessed. We have perused the record and, in particular, the written statement of Prithviraj admitting the allegations of the plaintiff, and consequently we have felt persuaded to arrive at the conclusion, contrary to our first impression, that Prithviraj had never any right or title of his own to the business of the plaintiff's husband, and that Prithviraj was working at the shop merely as an assistant to his brother Modilal partly because the latter was suffering from ill-health and required assistance. Apart from the document which has occasioned this reference, the plaintiff produced yet another letter dated the 23rd January, 1953, alleged to emanate from the defendant Prithviraj to the deceased, and this clearly points to the same conclusion. This letter was obviously addressed by Prithviraj to the deceased Modilal after the former had executed the document in question and in this Prithviraj wished to be relieved from his work at the plaintiff's shop. We do not consider it necessary to reproduce that letter in extenso, but the tenor of that letter unmistakably is that, according to Prithviraj, he was merely working for and assisting his brother and carrying on his business under his instructions and at his instance, and that he had been doing so for about three years and without any advantage worth the name and so, said Prithviraj, he would very much like to be relieved of his charge. Prithviraj further said that he wanted to explain all this to his brother Modilal personally but as the latter was in failing health, he could not venture to do so. This letter puts the real position beyond all shadow of doubt and that position was that Prithviraj had no manner of claim or right to the business of his brother Modilal and that he was merely assisting him for some return which used to be paid to him as a mere agent or holder and not as a partner in the business. The conclusion is irresistible from what we have stated above that when Prithviraj executed the document in question he was not "releasing" or giving up any claim of his with respect to the business of the deceased, for he possessed none whatsoever. To our mind, the reason which actuated the parties to put all this on paper was that Modilal was in ill health and he wished that all possible complications which might Jeopardise the interests of his wife, Mst. Takhtihai after his own death, should be avoided, and Prithviraj, who was probably alone carrying on the business of his brother for some time, could have no legitimate objection to doing what he was asked to and he rightly carried out the wish of his brother. Our conclusion, therefore, is that the document in question was not intended to serve as a deed of release and it is not a deed of that character. Article 55 presupposes the existence of a claim on some person or property which claim the person executing the document of release renounces by means of the deed but where such a foundation is completely lacking there can be no question of a release, the simple reason being that one can not renounce what one does not possess or claim at all. The next Question which arises is whether this document though not a release deed, requires a stamp otherwise under the Stamp Act. Having given our careful consideration to this aspect of the matter, we are of opinion that it does not. It is neither an agreement nor an acknowledgment of a debt within the meaning of Article 1 of Schedule 1 of the Court-fees Act. It is just an acknowledgment by the defendant of the plaintiff's husband's right to his own property, or, a memorandum of certain assets and liabilities of his business in which the defendant was helping, and does not contain any promise by the latter to do anything on his own behalf. Consequently we are of opinion that the document in question does not require any stamp at all. Before we part with this case, we wish to take this opportunity of stating the circumstances under which a reference may be made to this Court by the Chief Controlling Revenue Authority which is the Board of Revenue in this State. According to Section 56 of Chapter VI of the Stamp Act, which deals with references and revisions, all powers exercisable by a Collector in the matter of impounding instruments not duly stamped and requiring them to be duly stamped, were necessary, under Chapter IV, or in the matter of making allowance for spoiled, misused or unused stamps, under Chapter V, are subject to the control of the Chief Controlling Revenue Authority. It is further provided under Section 56 that where the Collector entertains a doubt as to the amount of duty payable on an instrument when such an instrument is brought to him for adjudication as to proper stamp under Section 31 or where an instrument is impounded under Section 40, or is brought to him as having been unduly stamped by accident under Section 41 of the Stamp Act, the Collector may make a reference in the matter to the Chief Controlling Authority with his opinion thereon. Now the latter authority in such a case may decide the matter itself under Sub-section (3), or it may in its turn state the case and refer it to the High Court with its opinion on it. Apart from this, that is, where a case has not been referred to the Chief Controlling Revenue Authority by the Collector (and the case before us is not of that kind), the Chief Controlling Revenue Authority may also refer a case to the High Court which has otherwise come to is not Under Section 57 (1 ). Such a case must then be decided by not less than three Judges of the High Court according to Sub-section (2) of Section 57. Having regard to these provisions, we consider that it is primarily the function, of the Chief Controlling Revenue Authority to decide the question as to the proper stamps chargeable on the document in a case referred to it, or which is otherwise brought to its notice, but discretion has been vested in the controlling authority to make a reference to the High Court in either kind of cases i. e. , (1) doubtful cases referred to it by the Collector acting under Sections 31, 40 or 41 and (2) cases coming to its notice otherwise than on a reference under Section 56 (2 ). We may further point out that this discretion has been usually exercised by the Boards of Revenue to secure a judgment of the High Court in doubtful cases only. We entirely concur in this view and we wish to express the hope that the discretion which vests in the Board of Revenue as the Chief Controlling Revenue Authority in this State for making references under Section 57 will be exercised on the same lines as by the Revenue Boards in other States. For the reasons mentioned in the foregoing part of our judgment, our answer to the reference is that the document referred to us is not a release deed and is not chargeable as such and is not otherwise chargeable with stamp duty also. Let a copy of this judgment be sent to the Revenue Board for disposing of the case in accordance with our opinion. .;