Ahmed Ali Khan, J.
1. The Chief Controlling Revenue Authority, submitted a statement of the case under Section 54 (1) of the Mysore Stamp Act, 1957 (which will hereinafter be referred to as the 'Act'). The question for determination is the liability of the agreement dated 23-2-1966 executed by the loaners to be stamped as a mortgage deed under the provisions of the Act.
2. The necessary facts for the appreciation of the point of law involved in this reference are : The two petitioners as agriculturists had applied for the loan of a sum of Rs. 20,000/- for the purchase of a tractor. The Divisional Commissioner, Belgaum, sanctioned them a loan of a sum of Rs. 20,000/- for the said purpose. The two loaners and the Tahsildar, Gokak, executed a document on 23-2-1966 (hire purchase agreement for tractor and implements) and presented, the same for registration in the office of the Sub-Registrar, Gokak, on 23-2-1966. On 27-6-1968, they (the loaners) received an order from the Assistant Commissioner, Bailhongal (Respondent No. 2) that a sum of Rs. 1,027-50 paise and penalty of Rs. 5/- should be paid by them as the Sub-Registrar, Gokak. (Respondent No. 3) had held the document es & simple mortgage by his order dated 17-6-1968. Aggrieved by the said order the loaners filed a petition under Section 53 of the Act before the Chief Controlling Revenue Authority for setting aside the order of the Assistant Commissioner, Bailhongal. The Chief Controlling Revenue Authority concurred with the order of the Assistant Commissioner, and held that the document was correctly assessed as a simple mortgage and rejected the application by his order dated 18-2-1969. Then, on an application by the petitioners, the Chief Controlling Revenue Authority, has referred the ease to this Court for its decision under Section 54 of the Act.
3. The relevant portions of the agreement dated 23-2-1966 (the hire purchase agreement for tractor and implements) are Clause 14 and the schedule, which read :
'14. As security for the payment of all the sums of money and interest due from and payable by the Hirer to the Supplier under this agreement, the Hirer does hereby mortgage to and in favour of the supplier all the property more fully described in the schedule hereunder by way of first hypothecation and the Hirer doth hereby agree to hold the property hereby mortgaged unto and to the use of the supplier for securing payment of all sums of money due hereunder and under this agreement or which may hereafter become due. The hirer hereby covenants with the supplier (a) that he the Hirer has a good and perfect title to mortgage the property to the Supplier and that there are no encumbrances charges claims, demands etc. of any description or in respect of the same; (b) that all improvements and accessions to the mortgaged property shall form, part of the security and be governed by these presents; (c) that in the event of the Supplier deciding that the security hereunder given is insufficient, the Hirer shall give such additional security as the supplier shall demand and (d) that the rights of the Supplier as mortgagee under this clause shall be in addition to and without prejudice to the rights of the Supplier under Clause 13 and the other clauses of this agreement and that it shall be open to the Supplier to recover the moneys due from the Hirer or any portion thereof in any manner under any of the other clauses of this agreement end from any of the persons liable for their payment without being obliged to proceed against the mortgaged propertyin the first instance.
* * * *
2. Schedule of properties mortgaged to Government for Tractor Loan.
(a) Immovable properties
Village & Taluk
4. The expression 'mortgage deed' is defined in Clause (n) of Section 2 (1) of the Act as:
'(n) 'Mortgage deed' includes every instrument whereby, for the purpose of securing money advanced or to be advanced, or to be advanced by way of loan, or an existing or future debt, or the performance of an engagement, one (contd. on col. 2)
(a) when possession of the property or any part of the property comprised in such deed is given by the mortgagor or agreed to be given.
(b) when possession is not given or agreed to be given an aforesaid.
Article 47 in the Schedule to the Actreads :
'47. Security Bond or Mortgage deed. executed by way of security for the due (Contd. on Col. 2)
(a) when the amount secured does not exceed Rs. 1,000
(b) in any other case.
5. It is clear from the definition of the expression 'mortgage deed' that if the document executed by the petitioners was an instrument under which or whereby there was a transfer or the creation of right over or in respect of specified property, it should be registered as a mortgage deed. When we look into the document executed by the petitioners, it is clear from it that the document is person transfers, or creates, to or in favour of another, a right over or in respect of specified property;
Article 34 in the schedule to the Act provides :
'34. Mortgage Deed -- not being an agreement relating to Deposit of Title Deeds. Pawn or Pledge (No. 61 Bottomry Bond (No. 13). Mortgage of a Crop (No. 35). Respondent Bond (No. 46) or Security Bond (No. 47)-
The same duty as a conveyance (No. 20) for a consideration equal to the amount secured by such deed.
The same duty as a Bottomry Bond (No. 13) for the amount secured by such deed.'
execution of an office or to account for money or other property received by virtue thereof, or executed by a surety to secure the due performance of a contract-
The same duty as a Bottomry Bond (No. 13) for the amount secured.
Twenty two rupees and fifty naye paise'.
transferring and creating a right over and in respect of specified properties described in the schedule to the agreement. Thus the instrument i. e.. the agreement dated 23-2-1966 (the hire purchase agreement for tractor and implements) is a simple mortgage deed which falls under Article 34 (b) of the Act and the provision of Article 47 is not applicable to the same.
6. In our opinion, the document, viz. the hire purchase agreement for tractor and implements dated 23-2-1966, is chargeable to stamp duty under Article 34 (b) of the Schedule to the Act and that the conclusion arrived at by the Chief Controlling Revenue Authority is a correct conclusion. We, therefore, answer the reference accordingly.