M.P. Thakkar, J.
1. The question which confronts the Court in this revision by the original plaintiff is as to whether the trial Court rightly held that the instrument executed by the opponents in favour of the petitioner plaintiff was insufficiently stamped and was inadmissible in evidence without payment of the alleged deficit stamp duty of Rs. 113/- alongwith penalty of Rs. 1130/-.
2. The plaintiff is a widow. She has no son. She has only two minor daughters, Her husband died about 12 years back. After the death of her husband, the opponents-defendants executed a writing in favour of the plaintiff. By that writing the opponents promised to pay certain sums for the maintenance of the plaintiff and her minor daughters. They also promised to supply her with grains etc. According to the plaintiff, the opponents committed a breach of the agreement and failed to honour the obligation undertaken by them. She accordingly instituted a suit claiming the restoration of the lands of her deceased husband which the opponents had taken possession of at the time of the execution of the aforesaid document. At the hearing of the suit, the plaintiff tendered in evidence a document executed by the opponents on December 26, 1967 in her favour. The opponents contended that the document was not properly stamped. Thereupon the learned Trial Judge, passed the impugned order calling upon the petitioner to pay Rs. 113/- by way of deficit stamp duty and Rs. 1130/- by way of penalty. He also passed an order impounding the document in question. The petitioner widow has invoked the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure and has questioned the impugned order passed by the learned Trial Judge on July 20, 1970, in so far as it is against her.
3. The impugned order does not contain any reasons in the sense that the learned Judge has merely translated the document, reproduced the relevant provision, and has recorded his conclusion that the document in question is of the nature described in Section 26 and is liable to stamp duty specified therein. It discloses total non-application of mind to ascertain as to whether having regard to the terms and conditions of the document, Section 26 is attracted. Nor has he analysed the provision with the end in view to understand the import thereof. It is a matter of regret that as a result of this superfluous and cavaliar approach made by the learned trial Judge a widow has been unnecessarily kept waiting for justice for more than three years. It is hoped that the learned trial Judge will be more careful in future in dealing with such matters.
4. Section 26 in so far as material is in the following terms:
26. Where an instrument is executed to secure the payment of an annuity or other sum payable periodically or where the consideration for a conveyance is an annuity or other sum payable periodically, the amount secured by such instrument or the consideration for such conveyance, as the case may be, shall for the purposes of this Act, be deemed to be,
(a)... ... ... ... ... ...
(b)... ... ... ... ... ...
On a plain reading it is clear that Section 26 prescribes the mode of valuation when a conveyance is executed and when consideration for such conveyance is an annuity or other sum payable periodically. It is also attracted when instead of executing the conveyance an instrument is executed to secure such 'payment' and the mode of valuation depends on the amount secured. Now, the expression 'secured' has reference to security created in favour of a party in addition to the mere liability of a debtor to pay. The security may be by way of a mortgage, charge, or lien, or by way of a guarantee or collateral liability undertaken by some other person. If authority is needed for this proposition, reference may be made to the Dictionary of English Law by Earl Jowitt, 1959 Edition Vol. 1. The following passage from page 582 fortifies the view taken by me.
Secured debts are those for which the creditor has some security in addition to the mere liability of the debtor. The term is some what vaguely used. Examples of secured debts in the strict sense are debts secured by mortgage, charge or lien, or by the collateral liability of some other person (see GUARANTEE).
5. Now, in the present case no mortgage or charge has been created to secure the annual payment, promised by the opponents by way of the stipulation contained in the document in question. It is, therefore, futile to contend that Section 26 applies to a document of this nature. Article 5(h) of Schedule I will apply and such a document will require payment of a stamp duty of Rs. 3/- from 1963 onwards in view of Gujarat Act, 18 of 1963. The document in question was however executed in 1957. At that time the relevant provision required the payment of Rs. 1/50 by way of stamp duty. The document in the present case has been stamped with a stamp of Rs. 2/-. It is, therefore, properly stamped. The learned trial Judge was in error in holding that it was not properly stamped and that there was a deficit. The impugned order must be set aside to that extent as the document is properly stamped and does not require any additional stamp. No question of payment of penalty, therefore, arises.
6. The revision is, therefore, allowed. The impugned order to the extent that it calls upon the plaintiff to pay Rs. 113/- by way of additional stamp duty as also to pay Rs. 1130/- by way of penalty is set aside. It may be clarified that the impugned order in so far as the learned Judge holds that the document is admissible in evidence (even though it is not registered) for the limited purpose of showing the nature of the possession has not been called into question and remains undisturbed. The learned Judge will pass an appropriate order for marking the document as an exhibit for the aforesaid limited purpose and proceed with the trial in accordance with law with expedition having regard to the fact that the plaintiff who is a widow and her minor daughters have been kept waiting for the redress of their grievance for all these years, at an interlocutory stage.
Rule is made absolute to the aforesaid extent with costs.