John Beaumont, Kt., C.J.
1. This is a reference made to this Court by the First Glass Subordinate Judge of Bijapur under Section 60 of the Indian Stamp Act. The question which he refers to this Court is whether a consent decree creating a charge on immoveable property which is not the subject-matter of the suit requires a stamp. Decrees of this nature are very common ; but it was only by the amendment of the Indian Registration Act, which came into force in 1930, that such decrees became the subject of compulsory registration, and until that event happened it had apparently not occurred to anybody that such decrees were liable to stamp duty. But the Sub-Registrars now, acting under directions given to them by the Commissioner, require such decrees to be stamped, and the question we have to consider is whether they are correct in so doing.
2. It is conceded that in the schedule to the Indian Stamp Act enumerating the instruments which require to be stamped there is no direct reference to ;a consent decree creating a mortgage; but under Article 40 of the schedule, a mortgage-deed has to be stamped, and 'mortgage-deed' is defined, in Section 2, 'Sub-s. (17) of the, Act, and the real question is whether that definition includes a decree such as we have in the present case. Sub-section (17) provides that a '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.
3. It is argued by the learned Government Pleader that a consent decree .operates in effect as an agreement. In the present case the suit was for a 'money decree, and the terms of compromise were that a certain sum was to be paid by the defendants and that sum was charged on immoveable properties belonging to the 'defendants, and it is clear that such an order could only be made by the consent of the defendants. Therefore it is argued that the consent decree is an instrument whereby for the purpose of securing an existing or future debt one person creates in favour of another a right in respect of specified property. No doubt if that definition stood alone there would be some force in the contention because the decree is only passed by reason of the agreement of the parties, and it may be argued that the inclusion of that agreement in a decree of the Court is a mere matter of machinery ; but at the same time, taking the language literally, it is the decree of the Court, and not the agreement of the parties, which actually creates the charge. There are, however, certain other provisions in the Act which throw some light on the question. Reliance is placed by the learned advocate for the applicant on the fact that in Sub-section (15) of Section 2 of the Act is contained a definition of 'instrument of partition,' and that definition includes, not only the case of a partition out of Court, but also a final order for effecting a partition passed by any civil Court. It is said that if the definition of 'mortgage-deed' had been intended to include a decree of a civil Court, the definition would have so provided as it does in the case of the definition of an 'instrument of partition'. I do not think there is much force in that contention because the order of the Court for effecting a partition referred to. in Sub-section (15) may or may not be a consent order, and a special provision would clearly be required to include an order for partition made in invitum., In the case of a consent decree creating a charge, if the definition of 'mortgage-deed' is wide enough to include such a decree, then there is no object in having a special definition dealing with such decrees. A more important point to my mind arises under Section 29 which provides that in the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne, in the case of a mortgage-deed, by the person drawing, making or executing such instrument. It cannot be said that a person consenting to an order either draws, makes or executes such order. The learned Government Pleader points out that Section 29 is not exhaustive. A good many documents chargeable under the Schedule are not included in Section 29 of the Act and no provision is made for the incidence of the stamp duty upon them, and he contends that, if no provision is made for the incidence of the duty on a particular form of mortgage-deed, then it merely means that such duty will have to be borne by the person who desires to get the instrument stamped. That no doubt is true, and if the definition of a 'mortgage-deed' included' in clear terms a decree creating a charge, I should agree that the fact that such a decree is not included in Section 29 would be irrelevant; but inasmuch as the definition of 'mortgage-deed' is certainly not clear in including a consent decree, the fact that such a consent decree is not contemplated in Section 29 as being a 'mortgage-deed' is, I think, a material circumstance which goes to show that such a decree was not intended to be included in the definition of a mortgage-deed. There are, I think, no other provisions in the Act which are relevant. An Act imposing taxation always has to be construed strictly, that is to say, the Crown has to show that the tax in question is imposed upon a fair construction of the language used, and having regard to the fact that the schedule does not expressly refer to any decree of a Court except a decree for partition, and to the fact that the definition of 'mortgage-deed' does not in terms clearly include a consent decree creating a charge, coupled with the fact that Section 29 seems to indicate that such a consent decree was not intended to be included in such definition, I think we must hold that decrees of this nature are not liable to stamp duty, and we must, therefore, answer the question in the negative.
4. I agree.
N.J. Wadia, J.
5. I agree.