CHIEF CONTROLLING REVENUE AUTHORITY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a reference made under Section 57, Stamp Act, and the facts leading up to the reference are very brief. A lease was executed on 9-12-1949, whereby the lessor, one Khan Bahadur Seth Nanabhai Hormuaji Bhiwandiwala, demised upto the lessee for a period of 5 years the salt pans and land known as Hormuzed Salt Pans situated in Dadar Taluka near Vadala, Station. In respect of this lease two amounts were paid: Rs. 83,000 on 2-11-1945, and Rs. 22,000 on 24.6. 1948, and the question that arises for our determination is whether this is a lease falling under Article 35 (a) (iii) or under Article 35 (b), and in order to decide that question what we have to determine is whether those two amounts paid constitute rent reserved under this lease or they constitute a fine or premium or money advanced, and no rent was reserved under the lease.

(2.) Now, neither "rent" nor "premium" is defined under the Stamp Act and, therefore, we have to turn to the Transfer of Property Act for the definitions of these two expressions, And when we tarn to Section 105 we find that a lease is defined as :

(3.) The Advocate General has also drawn our attention to the fact that when these two sums of Rs. 33,000 and Rs. 22,000 were paid two documents were passed by the lessor and those two documents show how the sums of Rs. 33,000 and Rs. 29,000 were to be treated as rent for the period of the lease. And when we look at these amounts and compare these amounts with the amounts fixed for rent under the lease itself these amounts vary. Therefore, when the amount was actually paid by the lessee, the intention of the parties was that this amount should be treated as rent on a certain basis; when the lease came to be executed that basis was altered and the contention of the Advocate General is that rent being an amount certain you cannot call this an amount certain when the parties themselves were not definite as be what the amount of the rent should be for the different periods during which the lease bad to run. On the other hand, Mr. Khambata argues that the rights of the parties are to be determined by the terms of the lease itself; and we are prepared to assume in favour of Mr. Khambata that under the lease the amount of the rent was fixed as stated in that document and that we may not look at the earlier documents when the amounts were paid, which amounts were fixed by those documents. But even so, the only reason why the amount of the rent is mentioned in the lease is not for the purpose of fixing any liability upon the lessee to pay the amounts, but merely for the purpose of appropriating these amounts to the amounts already paid antecedent to the execution of the lease.