Skip to content


Board of Revenue Vs. Managing Director, Santhi Plantations (P.) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.M. Reference No. 4 of 1970
Judge
Reported inAIR1973Ker82
ActsKerala Stamp Act, 1959 - Sections 9(1); Kerala Interpretation and General Clauses Act, 1125 M.E. - Sections 3(23)
AppellantBoard of Revenue
RespondentManaging Director, Santhi Plantations (P.) Ltd.
Appellant Advocate M.M. Abdul Khader, Adv. General
Respondent Advocate T. Karunakaran Nambiar and; Achuthan Raj Meloth, Advs.
Cases ReferredMisri Lal v. Mozhar Hossain
Excerpt:
- .....in respect of an :'unattested instrument evidencing an agreement relating to the hypothecation of movable property, where such hypothecation has been made by way of security for the repayment of money advanced or to be advanced by way of loan or of an existing or future debt.'2. the instrument here in question it an unattested instrument evidencing an agreement relating to the hypothecation of standing crops, in existence and to come into existence in the future, by way of security for the repayment of money advanced or to be advanced by way of loan, and the only question is whether standing crops are movable property within the meaning of the notification. there is no definition of 'movable property' in the kerala stamp act under which the notification was issuedand, therefore, it must.....
Judgment:

Raman Nayar, C.J.

1. There can be no mortgage of non-existent property, and a transaction that purports to be a mortgage of non-existent property is, in law, only an agreement to mortgage the property when it comes to existence. Misri Lal v. Mozhar Hossain, (1886) ILR 13 Cal 262 is one of the many decisions that have established this proposition in Indian Law -- indeed the proposition is not disputed. That being so, the instrument here in question which purports to be a hypothecation of the stock-in-trade of the executant thereof (a planting company), this stock-in-trade consisting of coffee then existing and thereafter to be grown in its estates, is a mortgage of the then existing standing coffee crop and an agreement to mortgage standing crops to come into existence thereafter when they come into existence -- only a mature standing crop and not a growing crop can constitute stock-in-trade. By the notification. No. G. O. MS. 813/RD dated 2-9-1961 published in the Gazette dated 12-9-1961, the Government have, acting under Section 9(1)(a) of the Kerala Stamp Act, remitted the duty chargeable in respect of an :

'Unattested instrument evidencing an agreement relating to the hypothecation of movable property, where such hypothecation has been made by way of security for the repayment of money advanced or to be advanced by way of loan or of an existing or future debt.'

2. The instrument here in question it an unattested instrument evidencing an agreement relating to the hypothecation of standing crops, in existence and to come into existence in the future, by way of security for the repayment of money advanced or to be advanced by way of loan, and the only question is whether standing crops are movable property within the meaning of the notification. There is no definition of 'movable property' in the Kerala Stamp Act under which the notification was issuedand, therefore, it must be presumed that the notification uses the expression 'movable property' in the sense in which it is defined in Section 2 (23) of the (Kerala) Interpretation and General Clauses Act which applies to the interpretation of the Kerala Stamp Act That definition says that, 'movable property' shall mean property of every description except immovable property, and the definition of 'immovable property' expressly excludes standing crops. It follows that standing crops are movable property and that the instrument in question comes within the scope of the remission granted by the notification already mentioned. It is not chargeable with stamp duty and we pronounce accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //