Bai Amina vs Arab Abdul Habib Talab

D.V. Vyas, J.—This is a revisional application by the original plaintiff Bai Amina alias Amnabu or Bhavanagar and it raises a short but interesting point of law under the Indian Stamp Act. The question is whether a certain deed of dower was sufficiently stamped or insufficiently stamped. The learned Judge has taken the view that the stamp was an insufficient stamp. This view is challenged by the learned advocate Mr. Thakkar appearing for the applicant in this application. Mr. Thakkar says that the document in question would fall within the exemption clause (a) mentioned under Article 58 of the Indian Stamp Act.

Now, Article 58 which is an article dealing with Settlement, says in clause A that an instrument of settlement including a deed of dower will be chargeable with stamp duty as on a Bond. Now the question of stamp on a bond, the required stamp would be of the value of Rs. 22-8-0. As a one rupee stamp was used for the deed in question, the deficiency would be of Rs. 21-8-0. The learned Judge has taken the view that this should be the amount to be recovered upon this document, as the stamp affixed was only a one rupee stamp, which in his opinion was insufficient.

Now Mr. Thakkar says that the document would fall within the ambit of the exemption clause (a) mentioned under Article 58. Now the exemption refers to a deed of dower executed on the occasion of a marriage between Muhammadans. Therefore, the question in this case is whether the document is a deed of dower and it was executed on the occasion of the marriage of the plaintiff with her husband.

Now, it is to be noted that the mere fact that the document is a deed of dower would by itself not entitle the document to an exemption from stamp duty as on a Bond. This is clear from he language of clause A of Article 58 itself. Clause A says that an instrument of Settlement including a deed of dower would be chargeable with stamp duty as on a Bond. It is clear, therefore, that the mere fact that this document is a deed of dower would by itself not entitle the document to an exemption from stamp duty as on a Bond. To earn an exemption, the document must further be a deed of dower executed on the occasion of a marriage between Muhammadans. Therefore, the question is whether this document, in addition to being a deed of dower, was executed on the occasion of the marriage of the plaintiff with her husband. The term ''Dower'' is defined in section 285 of Mulla''s Mahomedan Law and the definition records this :

"Mahr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage".

Now there is no doubt, nor could there by any controversy that this particular deed of document came into existence by way of a consideration which the husband had to pay to the wife for the marriage between the two. The reasons for the execution of this document are to be found in the document itself. The plaintiff, who is the wife, does not appear to have had much confidence in her husband, which is an unfortunate fact when the two parties are on the threshold of marriage. However, whether the fact was an unfortunate fact or not, there is no doubt that the circumstances which necessitated the coming into existence of the document are mentioned in the document itself. it is clear from the document that if the marriage were not to take place, the document would not have come into being. This would mean that the document came into being by way of a consideration for the marriage. Therefore it is a deed of dower.

But as I have mentioned above, merely the fact that it is a deed of dower would not attract the provisions of the exemption clause (a) mentioned under Article 58 of the India Stamp Act. The language of clause A of Article 58 and the language of the exemption Clause (a) mentioned thereunder are distinct; the deed of down referred to in clause A is purely and simply a deed in consideration of the marriage while that referred to in the exemption clause (a) is such a deed executed on the occasion of the marriage. The distinction between these two modes of expression has got to be borne in mind in order to understand the scope of the exemption which is mentioned in the exemption clause (a) under Article 58. It is clear, having regard to the aforesaid language, that a deed may have been executed in consideration of the marriage but it may not have been executed on the occasion of the marriage. Having regard to this distinction, there is no doubt that the words "on the occasion of a marriage" must mean "at the time of a marriage". Otherwise, I can see no distinction between the language of the exemption clause (a) and the language of clause A in article 58. There is no doubt in this case that the deed which is the subject matter of the application was not executed at the time of the marriage, but that it was executed a week before it. Therefore it would not be entitled to the exemption mentioned in the exemption clause (a) in Article 58.

The learned Judge was, therefore, right in holding that the deed was insufficiently stamped. Having regard to the deficiency and the penalty, the proper amount now payable on the document to make it admissible u/s 35 of the Stamp Act would be Rs. 236-8-0. The application fails and is rejected with costs.

Application rejected.