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The Collector and Superintendent of Stamps Vs. Laxmibai Saheb Angre - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 435 of 1947
Judge
Reported in(1948)50BOMLR288
AppellantThe Collector and Superintendent of Stamps
RespondentLaxmibai Saheb Angre
Excerpt:
.....106-document in writing undertaking to pay rent on immovable property-whether such document a lease-lease from month to month-proper duty chargeable on such lease.;a document containing an undertaking in writing to pay rent for immovable property is a lease within the meaning of section 2(16) of the indian stamp act, 1899.;a lease from month within the meaning of section 106 of the transfer of property act, 1882, being a lease for an indefinite period, is chargeable to duty under article 35(a)(iv) of sch. i of the indian stamp act, 1899.;skinner v. arunachalm [1939] mad. 384, f.b., mangal puri v. baldeo puri [1938] all. 481 and noor ahmed v. mahmud ali [1939] lah. 201 followed.;amolia v. ibrahim ishak in re (1919) i.l.r. 46 cal. 804 not followed. - - 481 a bench of the allahabad..........i.m. rowjee. in that letter he first mentions that at a personal interview between him and his landlord the rent was settled at rs. 68 and then he goes on to say that he agrees and binds himself to pay that amount regularly. he also agrees to use the premises for residential purposes only and never to keep a sub-tenant without first obtaining the written permission from the land-lord. he agrees to pay the charges payable to the bombay electric supply & tramways co., ltd., for the consumption of electricity. mr. kapasi contends that this document is merely a record of an antecedent transaction. according to him there was an oral demise at the interview between the landlord and the tenant and this document merely records the agreement arrived at that interview. we arc unable to accept.....
Judgment:

M.C. Chagla, Ag. C.J.

1. This is a reference under Section 61(1) of the Indian Stamp Act and the question raised is whether certain documents referred to by the Collector and Superintendent of Stamps are leases within the meaning of Section 2(16) of the Indian Stamp Act.

2. In order that a document should be a lease one of the requirements is that it should contain an undertaking in writing to pay rent for immoveable property, and looking at all these documents we have no doubt that they do contain the requisite undertaking and therefore are leases within the meaning of that expression. This position has not been challenged by the respondents before us except Mr. Kapasi who contests the decision as far as the document dated July 28, 1942, is concerned. That is a letter written by the tenant Mahomed Afzalkhan to his landlord Mahomedbhoy I.M. Rowjee. In that letter he first mentions that at a personal interview between him and his landlord the rent was settled at Rs. 68 and then he goes on to say that he agrees and binds himself to pay that amount regularly. He also agrees to use the premises for residential purposes only and never to keep a sub-tenant without first obtaining the written permission from the land-lord. He agrees to pay the charges payable to the Bombay Electric Supply & Tramways Co., Ltd., for the consumption of electricity. Mr. Kapasi contends that this document is merely a record of an antecedent transaction. According to him there was an oral demise at the interview between the landlord and the tenant and this document merely records the agreement arrived at that interview. We arc unable to accept that contention. In our opinion the letter merely records the settlement of rent at Rs. 68. The rest of the letter contains binding undertakings on the part of the tenant. It is only by this letter that he agrees and binds himself to pay the rent of Rs. 68 which had been fixed at the earlier interview. In our opinion, therefore, the letter does contain an undertaking to pay rent and therefore is a lease.

3. The second contention urged by Mr. Kapasi is that the proper duty to be charged is not under Article 35(a)(iv) as decided by the Collector but it should be under Article 35(a)(i). Sub-clause (a)(i) deals with leases which purport to be for a term of less than one year and Sub-clause (iv) deals with leases which do not purport to be for any definite. term. Mr. Kapasi's contention is that this is a monthly lease and therefore it is a lease for a term of less than one year. In our opinion that contention is not sound. There is no specified period for this lease. No definite term is stated. It is a lease from month to month within the meaning of Section 106 of the Transfer of Property Act. But neither the landlord nor the tenant could say of this lease that the lease was to continue for any fixed period or when it would come to an end by the efflux of time. It is only by a notice given by the landlord to the tenant or vice versa that the tenancy could be terminated, and it would entirely depend upon the landlord or the tenant to give the notice at any time they chose.

4. Our attention has been drawn to a decision of the Calcutta High Court in Amolia v. Ibrahim Ishak, In re I.L.R(1919) Cal. 804 . There the Calcutta High Court took the view that monthly tenancy came within Article 35(a)(i) of the Indian Stamp Act, inasmuch as it was a tenancy for less than one year. With very great respect, we are unable to agree with that decision of the Calcutta High Court. As the judgment shows, the decision was really based on a concession made by counsel at the bar and no reasons are given for the decision. That decision has not been followed by any of the other High Courts. In Skinner v. Arunanhalam [1939] Mad. 384 . a full bench of the Madras High Court considered this decision of the Calcutta High Court and refused to follow it. Similarly in Mangal Puri v. Baldeo Puri [1939] All. 481 a bench of the Allahabad High Court also disapproved of the decision in Amolia v. Ibrahiim Ishak, In re, and took the view that a monthly tenancy was not a tenancy for a fixed period but was a tenancy for indefinite period continuing from month to month, and the same was the view taken by the Lahore High Court in Noor Ahmad v. Mahmud Ali [1939] Lah. 201. With respect, we agree with the view taken by the Madras, Allahabad and Lahore High Courts and disagree with the view taken by the Calcutta High Court. In our opinion this is a lease for an indefinite period and it is chargeable to duty under Sub-clause (a)(iv) of Article 35.

5. We accordingly accept the reference, make the rule absolute and declare that the proper stamp duty has not been paid and the proper duty which should be paid is as indicated in the letter of reference with the penalty. We direct that a copy of this judgment should be sent to the Collector and Superintendent of Stamps and to the Court of Small Causes as required by Section 61(3). No order as to costs.


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