S.N. Andley, J.
(1) This reference has been made by the Chief Controlling Revenue Authority, Delhi hereinafter referred to as 'the Authority', at the instance of Janki Devi under section 57(1) of the Indian Stamp Act, 1899. The question referred for the opinion of this Court is :-
'WHETHER the deed in question, which contemplates transfer of lease hold rights, acquired under the deed of lease dated 19.5.1965 and proprietory rights of commercial flat acquired under the sale certificate, is exempt from payment of stamp duty under exemption to Article 63 of Schedule 1-A of the Indian Stamp Act, 1899.'
(2) According to the statement of case submitted by the Authority, Janki Devi acquired lease-hold rights of a plot of land in Gokhle Market in a public auction upon which a commercial flat existed. The certificate of sale issued to Janki Devi is the certificate of sale issued in respect of lease-hold properties by the President of India under rule 90(15) of the Rules framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 as she was the higest bidder in the sale by public auction held on May 27, 1957. The property described in the Schedule is an area of 122.8 square yards being a commercial flat over shop No. 47-58 and 48-57, Gokhle Marg, Delhi. The amount paid in cash and in the shape of compensation-claim totals Rs. 22,200. Alease was given to Janki Devi by the President of India on May 19, 1965. By this lease the President demised to Janki Devi 'the land described in the Schedule hereunder written. .......' The Schedule describes the premises as 'Commercial Flat over shop No. 47-58 and 48-57'. The consideration is stated to be Rs. 22,200 which is the same as under the aforesaid sale certificate. The demise under this lease has been described in these words :-
'NOW, this Indenture witnesseth that in consideration of the cost of land and superstructure of Rs. 22,200.00 (Rupees twenty two thousand two hundred only) paid before the execution of these presents the receipt whereof the Lesser hereby acknowledges and the rent hereinafter reserved and of the covenants by the Lessee hereinafter contained the Lesser doth demise unto the Lessee all that piece of land containing by ameasurement 122.8 sq. yards or thereabout situated in commercial flat over shop No. 47-58 & 48-57 in Gokhie Market, Delhi.'
(3) It may here be mentioned that the words underlined in the above quotation have been substituted in hand for the words 'premium' and 'plot' which were in the printed copy of the original lease which has been shown to us whereas in the copy of the lease deed in the paper book of the case the aforesaid words 'premium' and 'plot' have not been struck off and the words substituted thereforee have not been shown. This lease is for the term of 99 years commencing from February 11, 1958 and has fixed a yearly ground rent of Rs. 4. Various clauses in the lease mention the land and building or the land or structure or the land or buildings erected thereon.
(4) Janki Devi wanted to transfer the premises thus acquired by her by a deed of sale described as a deed of transfer of lease in consideration of a sum of Rs. 10,000. It is recited in this deed of transfer that Janki Devi was granted a lease by the President of India on May 19, 1965 'of land 122.8 sq. yards thereabout in commercial flat on shops 47/58-48/57 Gokhale Market, Delhi.' Janki Devi made a reference to the Collector of Stamps as to the appropriate duty payable on this transfer deed. She claimed that it was exempt from stamp duty by reason of Article 63 of Schedule 1-A of the Indian Stamp Act inasmuch as it was a transfer of the aforesaid lease granted by the President of India which was exempt from duty. The Collector of Stamps held that the instrument in question was a conveyance and was chargeable to stamp duty as such under Article 23 of Schedule 1-A of the Act as also to transfer duty under section 147 of the Delhi Municipal Corporation Act, 1957. Thereupon, Janki Devi made a petition under section 56 of the Indian Stamp Act to the Authority to make a reference to this Court under section 57(1). This petition was dismissed by the Authority on May 11, 1970. Thereupon, Janki Devi filed a writ in this Court (Civil Writ No. 1265 of 1970) which was decided on January 3, 1972 by Sachar J. who issued a mandamus to the Authority to state a case.
(5) The Authority was of the view that the claim of Janki Devi that the plot of land including the superstructure thereon in the shape Commercial Flat was given to her on lease was rebutted by the recitals in the deed of lease to the effect that the President had undertaken to pay to the lessee the value of the building, fixtures, etc. on the land on the date of termination of the lease, that the instrument does not disclose separately the consideration accepted by Janki Devi for the lease-hold rights and that accepted for the proprietory rights in the super-structure and, thereforee, the transfer deed was not only of the lease-hold rights in the land but also of the proprietory rights in the super-structure.
(6) The question that arises is a question of construction of the lease granted by the President to Janki Devi. If it is a lease not only of the land but also of the super-structure in the shape of the commercial flat, then concededly the transfer deed by Janki Devi would be exempt under Article 63 of Schedule I-A of the Indian Stamp Act.
(7) Now, if the substituted words pointed out by us above are taken into consideration, there is no doubt that the aforesaid lease by the President granted lease-hold rights not only in respect of the land but also of the super-structure thereon. This is quite clear from the words of demise quoted by us above read with the Schedule to the lease deed which refers only to the commercial flat over the aforesaid shops. The learned counsel for the Authority has contended that in the various clauses imposing conditions upon the lessee, land has been described separately from the super-structure. In our opinion, this fact is of no consequence in this case the super-structure is on the first floor and the land naturally, is under the ground floor. The deed of lease granted by the President is a composite document granting leasehold rights not only in the land but also in the super-structure i.e. the commercial flat over shops. The fact that the Lesser has undertaken to pay to the lessee the value of the building on the termination of the lease or the fact that the consideration in the transfer document executed by Janki Devi for the land and the super-structure has not been shown separately are of no consequence. It is to be remembered that the amount of Rs. 22,200 paid by Janki Devi is described in the deed of lease to be towards the cost of land and the superstructure. It is a matter of contract between the parties as to whether any amount paid by way of premium of cost is to be refunded to the lessee on the termination of the lease. The fact that any amount is refundable is of no consequence if in its true effect the lease by the President was not only of the land but of the super-structure i.e. commercial flat over shops.
(8) On a proper construction of the lease granted by the President in favor of Janki Devi we are clearly of the opinion that it was not only the land but also the super-structure, that is, commercial flat over shops which was given on lease to Janki Devi and that being so, the deed of transfer executed by Janki Devi must be taken to be a transfer of the lease which, admittedly, was exempt from duty and, thereforee, would not attract any stamp duty under Article 63 of Schedule I-A of the Indian Stamp Act.
(9) We, thereforee, answer the question in the affirmative. Janki Devi will have her costs of the reference. Counsel's fee Rs. 250.