1. The Government as per their letter of Reference No. 201 dated the 31st Khurdad 1341 Fasli has referred the following point s for decision under Section 55 of the Hyderabad Stamp Act No. IV of 1331 Fasli Section 57 of Act II of 1899:
(i) Whether the stamp duty on the document in question should be levied under Articles 29, 40 Clause (a) of the Stamp Act; as on a conveyance or under Clause (b) as on a bond.
(ii) Has the application been properly presented to the Chief Controlling Revenue Authority for decision under Section 43 of the Hyderabad Stamp Act (Section 45 of the Indian Stamp Act No. II of 1899)? Can he pass orders irrespective of the bar of limitation?
(iii) Are the present proceedings barred by limitation? Are there sufficient reasons for condoning the delay and can the delay be condoned?
2. We heard the arguments of the parties and considered the materials on the record. It appears that a Debenture Trust Deed was executed by the Shahabad Cement Company Ltd. When it was presented by Mr. Feroz Jamshedji Bilmoria in the Registration and Stamps Department for ascertaining the stamp duty, the amount was fixed at H.S. Rs. 11,500 under Article 29, Clause (a). It is stated that the company was compelled to pay the amount so fixed. Now it is contended that the stamp duty ought to have been levied under Article 10 as on bond. Hence, the amount levied in excess is to be refunded. We want to point out the difference between Clause (a) and (b) of the Article 29. It depends upon the tenor and contents and upon the intention of the parties to the documents. The former clause will be applicable when the possession of any part of the property mortgaged is given by the mortgagor or agreed to be given to the mortgagee. If neither possession is given nor agreed to be given the latter clause will be applicable. If in pursuance of the conditions of the contract the mortgagor delivers or agrees to deliver possession afterwards, no doubt the same duty is leviable as is fixed for a conveyance under Article 16 of the Stamp Act. But the Case is otherwise where the mortgagee takes possession on default. Hence to take possession or to deliver possession are two separate acts which depend upon the contract. In the present case neither the Company delivered the possession to the mortgagee nor did it agree to give possession, Bather it is expressly stated in para, 7 of tie document that the company will retain possession over the property mortgaged till the occurrence of the default referred to in para. 9. It appears from the tenor of the document that it was prepared in accordance with the English form in vogue, where particular phrases are generally used in such cases, for example, it is provided that the-legal possession will be with the trustees whereas the mortgagor company will be in actual possession. The conclusion is the intention was not more than this that the company was to manage the affairs continuing in possession of the property. The mortgagees were entitled to possession only in case of default in payment of debt. For this purpose the words 'shall take possession' have been used. When neither the possession is given nor is agreed to be given certainly Clause (b) of the Article 29 is applicable and the duty to be charged is the same as is fixed for a bond. We are fortified in our view by the decision in Board of Revenue, Madras v. Moppanna, Samarazu 97 Ind. Cas. 993 : 49 M. 903 : 51 M.L.J. 353 : (M.W.N.) 754 : 24 L.W. 559 : A.I.R. 19 : 6 Mad. 1038 (F.B.).
3. As for the second point we hold that the document in question was not properly brought to the notice of the Chief Controlling. Revenue Authority under Section 43 because no excess, stamp duty was levied either under Section 34 or under Section 39.
4. It is contended for the applicant that there seems to be some mistake or error in the section. Apparently the contention seems to be correct. But we referred to the Gazette also. There also Sections 34 and 39 are referred to At any rate the application for refund has not been properly Presented because here the document is not unstamped nor can it be said that it has been, unduly; stamped by accident. However as the application is fixed six days beyond time, the Chief Controlling Revenue Authority might have possibly refused to consider the application on this ground, but inasmuch as he has referred the case with his opinion under Section 55 (Section 57 Act No. II of 1899) of the Stamp Act to the High Court for decision no question of limitation will arise.
5. As for the third point we hold that when the case has been referred to the High Court there is no occasion to consider the bar of limitation, or condoning of the delay and the reasons for condonment. The period of three months fixed in Section 43 relates to the proceedings before the Chief Controlling Revenue Authority and apparently Section 5 of the Hyderabad Limitation Act No. II of 1322 Fasli (corresponding to Section 5 of the Indian Limitation Act, IX of 1033), is not applicable to such proceedings.
Rai Biseshar Nath, J.
6. (Dissenting)--I concur with the order proposed by Nawab Jeevan Yar Jung Bahadur. But I doubt very much whether the points Nos. 2 and 3 contained in the letter of reference by Government can be referred to the High Court under Section 55, Stamp Act.