1. This is a reference under the Stamp Act to determine what stamp ought to be attached to the sale deed dated 19th April 1928. The document starts with setting out a lease made by the Thakors who are the original grantees apparently from the Government. It states first of all at the bottom of p. 6 of the paper book that the assessment to which the land is subject is Rs. 163-13-6 and then it states that the lands are in the absolute possession of the Thakors and states:
The Thakors who were the owners of the aforesaid lands have passed in writing a deed of permanent lease in my favour on the under mentioned terms
and then in the next eight paragraphs are set out, as I understand it, the terms of the lease on which the assignor holds and the two most material provisions are Clauses 1 and 3. Clause 1 provides that five acres of land are to be held free from land revenue and then it provides:
After deducting the same there remained lands measuring acres 200-15 gunthas. Land assessment in respect of the same is agreed to be recovered at the rate of Rs. 1-0-0 per acre. At that rate assessment in respect of the said lands comes to Rs. 275-8-3 and the local fund on that amount at the rate of one anna per rupee comes to Rs. 17-3-6 these in all amount to Rs. 292-11-9 (in words). We are to recover the same from you every year from the 5th day of the month of January to the 20th day of the month of March.
2. It is to be noticed that the annual amount payable is not the amount of the assessment but is the figure based on an assessment of Rs. 1-6-0 per acre.
3. Clause 3 provides:
The aforesaid lands are given to you on a permanent lease on terms of renewing the assessment after thirty years or on the renewal of assessment by the Government. Therefore if in course of revision survey its assessment increases or decreases we shall recover from you the aforesaid amount of assessment in the proportion of the assessment fixed accordingly.
4. That really comes to this that this rate of Rs. 292 may be varied with the assessment made by Government.
5. Then when we come to the operative part at the bottom of p. 8 the document runs:
As staled above I have acquired the permanent right of cultivation in respect of the lands bearing the aforesaid survey numbers on the terms given above. After receiving from you Rs. 4,229 Bombay British currency in cash coins I have passed in your favour this deed of sale in respect of my permanent right of cultivation in respect of the aforesaid lands including trees grass-lands hedges & c.,' and so forth,
and then it says further on:
As I have taken the aforesaid lands by a permanent lease and put you in possession and enjoyment of the aforesaid lands and along with this I have handed over to you the registered permanent deed of lease.
6. And further on:
Therefore you are to abide by the terms contained in the aforesaid lease. Rs. 4,229 in cash being the consideration of this document are received from you and in lieu of the same I have passed this document.
7. Well, it seems to me, when you look at that deed it is really a recital of the lease made by the Thakors to the assignor in consideration of the yearly sum of Rs. 292-11-9 and then this document is a sale for Rs. 4,229 and the assignee has to perform the terms of the lease and pay the Rs. 292. But I do not find anything in this document which says that Rs. 292 are to be paid annually to the assignor. I think they were to be paid to the original lassoers the Thakors and if that is so the case falls exactly within the decision in In re Indian Stamp Act, 1899 (1) to which the Commissioner has referred. The Commissioner distinguishes that case by saying that in the present case an annual payment (annuity) of Rs. 292-11-6 is to be made by the grantee to the executant. But I do not find anything to that effect in the lease. That being so the stamp duty payable on the deed in question is an ad valorem duty on Rupees 4,229.
8. I agree.
9. I agree.