1. This order refers to the distribution of the stamp duty and penalty which has actually been paid by defendant 1 in both the suits for the purpose of rendering admissible in evidence certain instruments.
2. Mr. Kotwal who appears on behalf of defendant 1--appellant contends that he is entitled to the refund of the amount of stamp duty and penalty which he has paid from the other co-sharers under the provisions of Section 44(1), Indian Stamp Act. That section runs as follows:
'When any duty or penalty has been paid under Section 35, Section 37, Section 40 or Section 41, by any person in respect of an instrument, and, by agreement or under the provisions of Section 29 or any other enactment in force at the time such instrument was executed, some other person was bound to bear the expense of providing the proper stamp for such instrument, the first-mentioned person shall be entitled to recover from such other person the amount of the duty or penalty so paid.'
Now, the opening words of the section have got reference to the duty or penalty paid amongst others under Section 35. What Section 44(1) does is that it enables the person paying the duty or penalty to recover it. It is recoverable from 'some other person bound to bear the expense of providing the proper stamp for such instrument,'
Mr. Kotwal says that under the provisions of Section 29. Indian Stamp Act, the other co-sharers were bound to bear the expense of providing the proper stamp in proportion to their shares, and consequently his client is entitled to recover from the other co-sharers the portion of the duty and penalty which is attributable to their shares.
It is true that in order to find out whether the person paying duty and penalty was entitled to recover them from any other person, the question which has got to be asked is who was the person bound to bear the expense of providing the proper stamp upon the instrument concerned.
But it is only when the reply to that question shows that the entity is different from the person who has paid the stamp duty and penalty that the right under Section 44(1) arises. Mr. Kotwal contends, however, that the reply to this question is all the co-sharers including Mr. Kotwal's client himself.
But if we interpret the word 'expense' to mean a part of the expense, then in that case the other co-sharers were bound to bear their share of the expense of providing the stamp on the instrument. It is to be remembered however that what the person paying the duty or penalty is entitled to recover is 'the amount of the duty or penalty so paid', which are the closing words of the section. They mean the whole of the duty and penalty paid by him.
If we bear that in our minds and also the contradistinction between 'any person' who has paid the duty and penalty and the words 'some other person was bound to bear the expense of providing the proper stamp for such instrument', there can be no doubt that Section 44(1) is intended to help what may be termed as innocent party, a party who was not required to have the instrument properly stamped or bear any portion of the expense of the stamp.
3. That was as a matter of fact the view whichwas taken by the Madras and the Allahabad HighCourts in -- 'Raman Chetty v. Nagappa Chetty',AIR 1916 Mad 672, and -- 'Parshottam Ramv. Sheo Mangal', : AIR1936All151 (B). With respect we are in entire agreement with the view takenin those cases.Order accordingly.