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Judgment
M. Anantanarayanan, C.J.—These references u/s 57 of the Indian Stamps Act, 1899, are closely inter-related in the substantial question
involved, namely,, what was precisely decided in Crompton Engineering Co., Ltd. v. Chief Controlling Revenue Authority, Madras ILR (1953)
Mad. 566 (1953) 1 M.L.J. 620, and how far should the dicta in that judgment be pressed with. regard to an unregistered instrument, which, but
for registration, is effective to transfer rights as a conveyance or a deed of mortgage? Of the three references, Referred Case No. 13 of 1965 is the
most significant, on the facts, and the arguments were really elaborated in this case. Therefore, we consider it most appropriate to deal with this
reference immediately, and in detail. The question for our decision is:
Whether the instrument in question is not liable to be stamped under Article 23 of Schedule I of Stamp Act, even though it is not registered, and
whether instruments in general are to be stamped on execution notwithstanding that other conditions which validate the transfer of rights which the
instruments purport to make are not present?
Before dealing with the main issue, in this select reference (Referred Case No. 13 of 1965), it is essential to set forth the several definitions and
provisions of the Indian Stamp Act II of 1899, as amended upto-date. No apology is, hence, needed for these verbatim citations, as the definitions
and their juxtaposition have to be borne in mind, when considering the question really involved.
Sections 2 (6). Definition of ""chargeable.
Chargeable'' means, as applied to an instrument executed or first executed after the commencement of this Act, chargeable under this Act, and, as
applied, to any other instrument, chargeable under the law in force in India when such-instrument was executed or, where several persons
executed the instrument at different times, first executed.
Section 2(10). Definition of"" conveyance.
Conveyance"" includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos
and Which is not otherwise specifically provided for by Schedule I (or by Schedule I-A as the case may be....).
Section 2 (12). Definition of ""executed "" and ""execution.
Executed "" and "" execution "" used with reference to instruments, mean "" signed "" and "" signature.
Section 2 (14). Definition of '''' instrument.
''Instrument'' includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished, or
recorded.''
Section 2 (17). Definition of "" mortgage-deed"":
Mortgage-deed"" includes every instrument whereby, for the purpose of securing money advanced, or to be advanced, by way of loan, or an
existing or future debt or the performance of an engagement, one person transfers, or creates to, or in favour of another, a right over or in respect
of specified property.
Section 3.
Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the
amount indicated in that schedule as the proper duty therefore respectively, that is to say : __
(a) every instrument mentioned in that schedule which, not having been previously executed in India on or after the first day of July, 1899
Section 17.
All instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution.
A very brief reference is sufficient to the relevant articles of the Stamp Act Under Article 89 of Schedule I, a document is liable to duty as a
conveyance as defined by Section 2 (10)...
Section 2 (23) embodies the definition of a Receipt which
includes any note, memorandum or writing--(a) whereby any money or any bill of exchange, cheque or promissory note is acknowledged to have
been received...
The relevant article of Schedule I is Article 53, which is
Receipt as defined by Section 2 (23) for any money or other property the amount or value of which exceeds twenty rupees.
One other article that may be conveniently referred to here, is Article 40 relating to. mortgage-deed of which there are two sub-divisions (a) and
(b) depending upon whether possession of property is forthwith given, or is not.
The facts in Referred Case No. 13 of 1965 can be very briefly stated. On 15th November, 1968, O. R. Gopalachari and O. G.
Parvathavardhani Ammal sold valuable properties, namely, rice, flour etc., mill together with their accessories, for Rs. 17,000 to S. R. S.
Subramanian. The instrument is styled as receipt and is written on plain paper, bearing revenue stamp of the value of ten naya paise. Admittedly,
the land and the buildings in which the rice and flour mills and the appurtenant machinery were installed, were separately sold between the same
persons, by a registered sale deed, dated 15th November, 1958, the same date. But one very important feature of the alleged receipt is that it
does not, as may be considered ex facie from the facts, relate to the sale of movable properties. On the contrary, the properties sold for Rs.
17,000 were embedded and attached to the earth, and the instrument (receipt) really relates to the sale of immovable properties; that is not in
dispute.
It was contended on behalf of the respondent, on the authority of Crompton Engineering Co., Ltd. v. Chief Controlling Revenue Authority,
Madras I.L.R (1953) Mad. 566 : (1953)1 M.L.J. 620, that, notwithstanding the above fact, that instrument not being registered, was not a valid
conveyance, and could not be held liable to stamp duty under Article 23 of Schedule I of the Stamp Act. We might here note that in an earlier
reference to this Court The Chief Controlling Revenue Authority Vs. The Madras Industrial Investment Corporation and Another, , the learned
Government Pleader sought to raise the very same question, that we should now authoritatively interpret the scope of the dicta in Crompton
Engineering Co., Ltd. v. Chief Controlling Revenue Authority, Madras I.L.R (1953) Mad. 566 : (1953)1 M.L.J. 620, or, if we accepted the
argument of the learned Government Pleader on that aspect, have the decision posted for reconsideration at the hands of a Fuller Bench. We then
pointed out that there was no actual case before the Court at all, which involved the question, and that
in the mere context of a hypothetical case and a document which may never eventuate.
We did not consider that the principle of stare decisis should be departed from. But in the present case, there can be no doubt that the dicta in
Crompton Engineering Co. Ltd. v. Chief Controlling Revenue Authority, Madras I.L.R (1953) Mad. 566 : (1953)1 M.L.J. 620 do fall to be
squarely considered. The learned Additional Government Pleader strenuously contends, that that decision cannot be taken as authority for the view
that a document is not liable to be charged with duty, either as a conveyance or as a mortgage deed, as the case may be, merely because it is
unregistered, and the law requires registration to effectuate such transfer of rights. On the contrary, he contends that any such interpretation would
involve a situation which is patently opposed to the stamp law, which has always envisaged a document as being liable to stamp duty, at the time of
its execution, and prior to its registration. We shall dwell on this aspect for a moment for we do not think that this proposition can be seriously
doubted.
The proposition that the entire stamp law envisages a document as liable to stamp duty, at the time when the instrument is executed, would
appear to necessarily follow from the definition of Chargeable u/s 2 (6), from the terms of Section 3 (a) and also from the explicit terms of Section
17 of the Stamp Act that we have set forth earlier. The matter is indeed set at rest, by the dicta of their Lordships of the Supreme Court in New
Central Jute Mills Co. Ltd. and Others Vs. The State of West Bengal and Others, , though the facts of that case involved a different and, perhaps,
an unique situation. That was a case in which a mortgage deed was executed in Uttar Pradesh though it related to property situate in West Bengal,
and the document was received in that State for registration. The document had been stamped in accordance with the law of West Bengal but the
judgment held that when the document came up before the officers of Uttar Pradesh for decision, whether it was duly stamped or not, the officers
of Uttar Pradesh were bound to hold that the instrument was not duly stamped, as it did not bear Uttar Pradesh Stamps. This particular situation of
a document executed in one State, and attempted to be registered in another State, does not now concern us. But the Supreme Court
authoritatively held at page 1311 that,
Primarily, the liability of an instrument to stamp duty arises on execution."" Again,
It is clear that in many cases the only one liability, viz., the liability on execution of the document will arise. After the amendment of the Act, the
liability can no longer be said to arise generally in India but must be held to arise in the particular State where the instrument is executed....In all
these cases the instrument can be said to be duly stamped only if it bears stamps of the amount and description in accordance with the law of the
State concerned--the law including not only the Act but also the rules framed under the Act.
The learned Additional Government Pleader would thus appear to be perfectly justified in his contention that the document has to be considered
as chargeable with stamp duty, when it is executed which term executed itself has to be interpreted in the light of the definition embodied in Section
2 (12). Actually, there can be no question of impounding the document and recovering the proper stamp duty from the party liable, subsequent to
registration, and this is not disputed. The real question is, did the case in Crompton Engineering Co., Ltd. v. Chief Controlleng Revenue Authority,
Madras ILR (1953) Mad. 566 : (1953) 1 M.L.J. 620, purport to decide that, even though a document is otherwise complete as a conveyance, or
a deed of mortgage, and the recitals therein fully transfer the relevant rights in property, it is still not liable to stamp duty, either as a conveyance or
as a deed of mortgage, purely because it has not been registered?
The facts in Crompton Engineering Co., Ltd. v. Chief Controlling Revenue Authority, Madras ILR (1953) Mad. 566 : (1953) 1 M.L.J. 620,
have to be carefully borne in mind, in this context. We are definitely of the view that the dicta in this decision would appear to have been
misinterpreted, and pressed beyond their proper scope. The document itself is set forth, with reference to the effective Clauses (1) and (9), in the
head-note of the judgment. After extracting these clauses, Rajagopalan, J. who delivered the judgment on behalf of the Full Bench, stated as
follows:
The document, dated 22nd March, 1948, was not attested. It was not registered.
The learned Judge then extracted the definition of mortgage-deed embodied in Section 2-(17) of the Act, that we have earlier set forth. Later, he
proceeded to extract Section 59 of the Transfer of Property Act, which makes it essential that where a mortgage secures a principal of one
hundred rupees or onwards, and it is other than a mortgage by deposit of title deeds it can be effected only by a registered instrument,, signed by
the mortgagor and attested by at least two witnesses. The learned Judge then proceeded to make the following observations at page 569:
That the transfer contemplated by Section 2 (17) of the Indian Stamp Act is a transfer valid in law, should be obvious. Such a valid transfer could
not have been effected under the document, dated 22nd March, 1948 which was neither attested nor registered. u/s 59 of the Transfer of Property
Act a valid mortgage can be effected only when the instrument is (i) signed by the mortgagor, (ii) attested by at least two witnesses, and (iii)
registered. Leaving aside the question of registration of an insufficiently stamped document, no one can claim that a document not signed by the
mortgagor is an instrument of mortgage liable to be stamped....The law embodied in Section 59 of the Transfer of Property Act necessitates the
signature of the mortgagor and the attestation by at least two witnesses in equal degree. To ensure the validity of the instrument as a mortgage,
attestation is made as much a part of the execution a* the signature of the mortgagor.
Later, towards the end of the Judgment, the learned Judge observes at page 571:
The very difference between the definition of an instrument in Section 2 (14) and a mortgage deed in Section 2 (17) should show that the "" transfer
provided for in Section 2 (17) is a transfer valid in law. To make a document liable to stamp duty as a mortgage deed, it is not enough if the
document '' purports '' to effect a transfer. It must '' transfer'' (Italics ours).
We think that it is obvious and indisputable that the last observation we have extracted will have to be read in conjunction with the earlier
passage which we have also set forth, and the facts of the case. It would be an erroneous principle of interpreting the judgment, to press into
service the last few observations alone, divorced from the earlier dicta and the explicit fact that the learned Judges were dealing with a document,
which could not be a mortgage-deed at all, because it was not attested by two witnesses, as the law requires. Clearly, what the learned Judge
meant was that, where the document contained recitals of disposition creating a transfer of rights, by the very force of the recitals, between the
parties, and it has been completely executed, the requirements of the law being satisfied in that respect, it must be interpreted as actually
transferring the rights, and hence as amounting either to a conveyance or a mortgage deed, as the case may be. But, where this execution is
incomplete, even if the recitals purport to transfer rights, the document cannot come under the category of a mortgage deed as defined in law. The
learned Judge explicitly observed. . *
Leaving aside the question of registration of an insufficiently stamped document,
in the earlier passage. We may point out that though registration is necessary under the law, to give legal effect to the document, it is not merely a
power of the executant to register the document, the party to Whom the interest is conveyed can also have it compulsorily registered. Obviously,
the category under which an instrument falls cannot be affected by the mere absence of registration, if the document is otherwise fully dispositive in
character, and duly executed. The case of Crompton Engineering Co., Ltd. v. Chief Controlling Revenue Authority, Madras ILR (1953) Mad.
566 : (1953) 1 M.L.J. 620, did not go beyond this, for the learned Judges of the Full Bench had before them an actual document which was not
duly executed at all. A different interpretation of this judgment would really render the provisions of the Stamp Act nugatory, envisaging as they do
the charging of an instrument under the relevant article of Schedule I, depending solely on the terms of the creation of rights and due and complete
execution, since the document is necessarily executed prior to its registration. An interesting decision 01 this aspect is Shams Din v. The Collector,
Amritsar (S.C) (1936) Lah.223 . During the course of the judgment of the Special Bench, the learned Judges observed, with reference to the
definition in Section 2 (12) at page 451:
...the intention of the new clause was to make it clear at what time a document became executed so as to be chargeable with stamp duty u/s 3 of
the Act....for the purpose of the Stamp Act the clause makes all documents which are chargeable with duty when executed, chargeable as soon as
they are signed by the executant.
With respect we may point out that the words by the executant occurring in this passage, are a distinct addition to the definition in Section 2
(12) and, hence, not warranted. If executed means signed, and execution means signature, it is clear that this will include the signature of all
persons, who are required by the character of the document to sign in the document, in order to give that document effect according to law. We
have no doubt, therefore, that, if a document is of such a character that both parties to the document should sign it, to constitute it a binding
agreement between them, it should contain the signatures of both, similarly, if it has to be signed . by two other attestors, in order to make it legal,
this will also be necessarily part of the definition. But, once a document is complete in execution in this sense, and the effective words of disposition
are there, immediately transferring rights by the very virtue of the document, the question of its subsequent registration is a distinct matter
altogether, and the document is certainly liable to stamp duty with reference to the relevant article of the Stamp Act since execution is complete.
We have next to see whether in this particular case, the Tamil text of the alleged receipt (which has been placed before us) does or does not
justify the interpretation of the document as a complete conveyance, as defined in the Stamp Act. We think it is sufficient to observe that very
explicit words are to be found in the Tamil text, to the effect that for the consideration of Rs. 7,000, absolute title was being conveyed in the
properties to the vendee. There can be no doubt whatever, therefore, that this is not a receipt, but a conveyance, and the due and complete
execution of the document is undeniable.
Learned Counsel for the respondent (Sri Gopalaswami Ayyangar) had drawn our attention to certain observations of Hawkins, J., and Lord
Esher, M.R., in (1889) L.R. 23 Q.B.D. 579. That was a very different case of a document which was readily an agreement to convey, which the
Court of Equity would have enforced by a decree for specific performance in the event of the vendor not fulfilling his contract. Such a document,
the Courts held, did not fall within the definition of conveyance on sale in Section 70 of the Stamp Act of 1899. We are of the view that there is
nothing in the dicta in this decision, which can possibly reinforce the interpretation that the document, with which we are now concerned is not by
its terms, effective as an actual conveyance. As we have stressed, due execution is undisputed. As Lord Esher, M.R., said if the document is not
effective as a conveyance, but it requires a subsequent decree for specific performance, it would be a contradiction of term to say that by itself it
constituted a conveyance. We are quite unable to see how this decision helps the respondent.
This reference has to be accordingly answered in the form that the document is liable for stamp duty under Article 23 of Schedule I, and that
the dicta in Crompton Engineering Co., Ltd. v. Chief Controlling Revenue Authority, Madras ILR (1953) Mad. 566 : (1953) M.L.J. 620, will
have to be interpreted as of restricted scope, and with reference to the facts of that case, as we have earlier pointed out.
Referred Cases Mos. 12 and 17 of 1965.--These references can be very briefly disposed of. Admittedly, on the same interpretation, these
documents cannot be possibly held to fall within the category or mortgage deeds under Article 40 (b) of Schedule I. In each of these two cases, it
is indisputable that the document was not attested, as required by law, quite apart from the question of registration. Therefore within the scope of
the relevant definition, these were not executed documents at all. They do not fall within the category because they are not complete documents
purporting to transfer rights of the kind contemplated. In these two cases, the references must be declined.