1. The only question agitated in this revision is whether the document styled as receipt of July 11, 1969 is a bond within the meaning of section 22(c) of the Bombay Stamp Act, 1958 as the trial court has found by the impugned order.
2. It is well settled that while applying the provisions of the stamp Act if two constructions are possible one that favours the assess will have to be accepted and secondly while considering the document, the dominant intent of the parties will have to be found out for purpose of determine the correct stamp duty payable.
3. The document on the face of it is an agreement between two persons executing purporting to sell orange produce for the year 1969-70 and the consideration is mentioned as the price agreed between the parties. An amount of Rs. 3225/- mentioned in the document is the price of the produce sold by the executing and the other terms in the document relate to the worrying out of the right to take the fruits out of the garden and make the payment as collection of fruits proceeds. The dominant purpose, therefore, is to effect the sale of fruits in a Orange garden. It is not to create pecuniary liability independent of the sale. To be a bond within the meaning of Section 2(c)(ii) the document primarily and dominantly must be one by which a person has obliged himself to pay money to another and by that instrument undertakes to pay in the presence of the witnesses only to the promisee and not to his order or bearer. The liability arises by the document itself and not by the agreement independent itself and not by the agreement independent thereof. The transaction evidenced by the agreement of sale merely records what is agreed to between the parties and cannot be conferred with the liability arising by or under the instrument. Liability in an agreement of sale arises because of the sale itself of the property and not by or under the instrument. Obviously, therefore, the document of July 11, 1969 does not partake of the nature of bond. It can be treated as an agreement. the chargeable item would be Article 5 of Schedule I. It is obvious that through the Legislature has provided for the sale of cotton, sale of bullion or specie, sale of oilseed or of yarn, it has not provided specifically for the fruit produce of trees and such an agreement will fall under the residuary clause [h] . The document will have to bear stamp duty of Rs.5/-.
*[To set aside order passed by P.A. Deshmukh Civil Judge, Junior division at Saoner, in Civil Suit No.199 of 1969,D/-16-3-1973]. ET/ET/B446/76/RSK.
4. In the result the only proper order that could have been made was that the document of 11-07-1969 be impounded after recovery of Rs.5/- as the stamp duty and Rs.50/- as the penalty. As required by section 34 of the Bombay stamp Act, after it is so impounded, the Collector be informed.
5. There will be orders in these terms in the present revision. No orders as to costs.
6. Order accordingly.