In Re: Secretary to the Commissioner of Salt and Abkari and Separate Revenue

After hearing the learned Government Pleader and considering the authorities cited, we are of opinion that the three sale-deeds in question, in

each of which the vendor mortgages lands not included in the sale as security for the due performance of his covenants, need not be stamped both

as sales and mortgages by virtue of the provisions of Section 5 of the Indian Stamp Act, 1899, as the sale-deeds are not instruments comprising or

relating to distinct matters within the meaning of the section. The decision in Case No. 1 of 1876 (1) is not in point, as the terms of Section 14 of

Act XVII of 1869, under which it was decided, are different from those of Section 5 of the present Act, which was substituted for it in Section 7

of Act I of 187P, which again is practically identical with Section 4 (a) of the English Stamp Act, 1891. In the matter of a reference from the Board

of Revenue u/s 46 of the Stamp Act 8 c. 254 , a decision u/s 7 of the Act of 1879, it was held that an instrument by which a debtor leased certain

lands to his creditor and empowered the latter to apply a portion of the annual rent in satisfaction of the debt was both a lease and a usufructuary

mortgage, but only required to be stamped as a mortgage as it did not relate to two distinct matters within the meaning of the section. In Reference

under Act No. 1 of 1879, (Indian Stamp Act), Section 49 17 A. 55 it was held that an instrument by which certain parties took lands on lease and

hypothecated other lands as security for the rent did not relate to distinct matters, but only to the terms on which the lessors let the land and the

lessees took the holding. In ''Reference under Stamp Act, Section 57 25 M. 3 a lease which contained a covenant for renewal was held not to

relate to two distinct matters, as the option to renew the lease was merely auxiliary to the lease and formed part of the consideration for entering

into it. Similarly in Reference under Stamp Act, Section 57 24 M. 176 though it was held that the agreement between the company and each of the

ryot who were parties to it constituted distinct matters within the meaning of the section, the agreement with each'' ryot by which in consideration of

a payment of one rupee, he was wanted a license to prospect, agreed to sell if required and covenanted to indemnify the company against claims

by other person?, was held not to relate to distinct matters so as to require separate stamps. The same test was applied in England in Price v.

Thomas 109 E.R. 1125 , where it was held that an instrument of lease in which both the lessee and a third party covenanted to pay the rent did not

require to be stamped both as a lease and as a deed, Littledale, J., observing that the lease was the principal to which the covenants was an

accessory and Parke, J., that the covenant was part of the consideration for granting the lease. In Palakkunnath Illath Govindan Nambudri v.

Ottathayil Moidin 42 Ind. Cas. 943, which was decided without argument, the answer would no doubt have been to the same effect if these

authorities had been brought to the notice of the Court, and we think that that decision should not be followed in future cases.