1. The short question for consideration in this case is, whether an instrument by which a vendor of immovable property who had taken an agreement for reconveyance from the vendee, gives up that right, is a "conveyance" falling under Article 23 of Schedule I of the Indian Stamp Act, or a ' release ' falling under Article 55; an alternative suggestion is that it is a "deed of cancellation" falling under Article
17. The respondent and his brothers purchased a certain property from one Kaliammal and others under a Registered sale deed on 7th April, 1958, for a consideration of Rs. 5,000. On the very same day, and as part of the same transaction the vendees executed an agreement for reconveyance of the property for the same consideration of Rs. 5,000, of which Rs. 10 was paid as consideration for the agreement of reconveyance. On 1st June 1959, the vendors executed the instrument in question, styled as a deed of release of the agreement for reconveyance. It is contended for the Revenue that this instrument must be stamped as a conveyance. It is admitted that the stamp duty payable as for a release has been paid, but the claim is that the instrument is a conveyance and not a release deed.
2. The learned Additional Government Pleader contends that this right to secure a reconveyance is ' property' and that when that is dealt with, there is a transfer of the right and therefore the instrument in question would be a 'conveyance'. The question for consideration is not whether the agreement for reconveyance is property of one kind or other, but the question is whether the transaction is a conveyance. That this right to secure a reconveyance is capable of transfer is not in the least in doubt. Our attention is drawn to the decision of one of us in Andalammal v. Alamelu Ammal A.I.R. 1964 Mad. 378, where it has been noticed that a right to reconveyance of land is property and not a mere right to sue, that such a right could be assigned and the assignee could enforce the same. Under the definition of ' conveyance ' in the Stamp Act, conveyance may be in respect of any property, whether movable or immovable, but the essential requisite is a transfer inter vivos of the property. Now, when the vendors, who had obtained the right of reconveyance under an instrument executed by the vendees, give up their right to get a reconveyance, can it be said that there is a transfer inter vivos of that right? The effect of such a transaction is to extinguish the outstanding right or claim which the vendors had against the vendees with reference to the property. After the transaction the right given up is no longer subsisting or outstanding as such in any one. There can be no doubt that if the agreement for reconveyance had been transferred to any other person, any third person other than the vendees who were obliged to retransfer the property under the agreement, then the instrument would be a ''conveyance.' But here, admittedly, the instrument is in favour of the original vendees. Article 55 of Schedule I of the Stamp Act, which provides for duty in respect of a release, indicates what a release is. The Article runs ::
Release, that is to say, any instrument...whereby a person renounces a claim upon another person, or against any specified property.
3. Under the instrument now under consideration, the original vendors who could call upon the vendees to reconvey the property in question back to them, renounce, that right. Squarely, the transaction falls within the definition of ' release' which one reads in Article 55.
4. The learned Additional Government Pleader drew our attention to our decision in Chief Controlling Revenue Authority v. Patel , and contended that unless the parties to the
instrument are co-owners, there can be no release. We find absolutely no warrant whatsoever for such an inference from the decision in question. Therein we have categorically held that the essential ingredients of a releases are, that there should already be a legal right in the property vested in the releasee and the release should operate to enlarge that right into an absolute title for the entire property, as far as the parties are concerned. In that case, we were concerned with undivided co-owners. We have referred therein to the decision of the Supreme Court inKuppuswami Chettiar v. Arumugha Chettiar , wherein their Lordships point out that a release deed can only feed title, but cannot transfer title. They indicate that a release is, in essence, a renunciation in favour of a person who has already title to the estate. In Stroud's Judicial Dictionary ' release ' is defined as " the giving or discharging of the right or action which any hath or claimeth against another, or his land ". There cannot be the least doubt that the instrument in question is a ' release ' as described here. In our view, this is not a deed of cancellation of a former instrument, provided for in Article 17 of Schedule I of the Stamp Act, a residuary Article. The transaction in question can only be a release.
5. The Reference is answered accordingly. No order as to costs.