In Re: Reference under Act No. 1 of 1879 (Indian Stamp Act), Section 49

John Edge, Kt., C.J., Knox and Banerji, JJ.—This is a reference by the Munsif of Saharanpur u/s 49 of the Indian Stamp Act of 1879. The question is whether a document produced before him at the trial was chargeable with duty as a lease or was chargeable with duty as a mortgage-deed. There was a further question submitted to us, namely, in case the document was a lease and also a mortgage-deed, did it fall within paragraph 2 of Section 7 of the Indian Stamp Act, that is, was it chargeable with duty only as a mortgage-deed, that being the higher duty?

The document in question was stamped as a lease. The document in question was a document by which the zamindar leased certain land in his village to some cultivators at a rent of Rs. 365 per annum in cash and of certain cart-loads of straw and of grass, valued by the Munsif at Rs. 10 per annum, for eight years, as zamindari dues. The lessees by the deed hypothecated certain other property belonging co them for the purpose of securing the payment of the agreed rent and for the performance of the engagement for the delivery of the articles valued by the Munsif at Rs. 10 per annum. It appears to us that the document was certainly a mortgage-deed as a mortgage-deed is defined in clause 13 of Section 3 of the Indian Stamp Act of 1879. It is an instrument by which, for the purpose of securing a future debt, that is, the rent to be paid, and for securing the performance of an engagement, that is, the engagement to pay the rent and to deliver the other articles yearly, the lessees created in favor of the lessor a right over specified property.

As to the second question, in our opinion the document in question cannot be regarded as an instrument comprising or relating to several distinct matters. The matter to which the instrument relates was the terms upon which the lessors let the land and the lessees took the holding. The mortgage was not a distinct matter from the lease. It was as much the matter of the lease as an ordinary covenant to pay would be part of the matter of the lease. We are consequently of opinion that paragraph 2 of Section 7 of Act No. I of 1879 applies to this case. We are fortified in this opinion by the decision of the Calcutta High Court in Ex parte Hill ILR 8 Cal 254 The papers will be returned to the Munsif through the District Judge with this expression of our opinion. There are some independent papers which have been sent up with the document we have expressed our opinion upon, but there is nothing to show whether those papers are relevant or not. The opinion which we express is simply on the document in question.