P.V. Rajamannar, C.J.
1. In Original Petition No. 220 of 1947 on the original Side of this Court, one Kuppuswami Mudaliar was appointed guardian. Of the person and property of four minors and he was directed to furnish security to the satisfaction of the Registrar of this Court for a sum of Rs. 30,000 for duly accounting for what he may receive in respect of the property of the minors and for otherwise complying with the orders of this Court that may be passed therein from time to time. As directed by this Order, the guardian filed a security bond offering as security certain immoveable property. The question now before this Full Bench is what is the proper stamp duty leviable on it.
2. On the authority of the Full Bench decision of this Court in Amirthammal v. Ramalinga Goundan : (1920)38MLJ503 stamp duly calculated under Article 33 of the Madras Stamp Amendment Act of 1922 which corresponds to Article 40 of the Indian Stamp Act was demanded. But it was contended for the guardian that the proper article applicable would be Article 46 of the Madras Act corresponding to Article 57 of the Indian Stamp Act. The matter was heard by Kunhi Raman, J., who, after consideration of the decision of the Full Bench and other decisions cited before him, was inclined to take the view that the opinion expressed by the Full Bench in Amirthammal v. Ramalinga Goundan : (1920)38MLJ503 needed re-consideration.
3. Article 33 of the Madras Act corresponding to Article 40 of the Indian Stamp Act provides for a mortgage deed not being an agreement relating to deposit of title deeds, pawn or pledge, bottomry bond, mortgage of a crop, respondentia bond, or security bond. Article 46 of the Madras Act corresponding to Article 57 of the Indian Stamp Act provides for a security bond or mortgage deed executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof or executed by a surety to secure the due performance of a contract.
4. It was not disputed before us that the bond in question would be a mortgage deed within the definition of Section 2(17) of the Indian Stamp Act. But it was contended on behalf of the guardian that the document fell directly within the scope of Article 46 because it was a mortgage deed executed by way of security for the due execution of the office of guardian and to account for money and other property received by virtue of that office. It cannot be doubted that a guardian appointed by Court under the provisions of the Guardians and Wards Act is appointed to an office. Two provisions in the Guardians and Wards Act are, in our opinion, conclusive in the matter. Section 20(1) says:
A guardian stands in a fiduciary relation to his ward, and, save as provided by the will or other instrument, if any, by which he was appointed, or by this Act, he must not make any profit out of his office.
Section 40(1) is as follows:
If a guardian appointed or declared by the Court desires to resign his office, he may apply to the Court to be discharged.
5. If, therefore, the guardian appointed by the Court holds an office, the security bond furnished by him for the due execution of that office and for the due accounting of moneys and for property received by him by virtue of such office would fall within Article 46 of the Madras Act (Article 57 of the Indian Stamp Act). In Baburao v. Kalavatibai : AIR1940Bom275 , a Special Bench of the Bombay High Court consisting of Beaumont, C.J., Divatia and Macklin, JJ., held that a bond given under the Guardians and Wards Act by a person as guardian of the estate of a minor in accordance with an order of Court fell under Article 57 of the Schedule I of the Stamp Act.
6. In Amirthammal v. Ramalinga Goundan : (1920)38MLJ503 , the question whether the security bond which was the subject-matter of that decision fell under Article 40 or under Article 57 of Schedule I of the Stamp Act really did not arise. In that case, the plaintiff in a small cause suit was appointed receiver to collect a debt due to the judgment-debtor and for the due performance of the duties as such receiver the plaintiff executed a security bond in favour of the District Munsiff offering immoveable property as security. The District Munsiff held that the instrument was a bond chargeable only with a court-fee of eight annas but the Sub-Registrar to whom the Munsiff forwarded the document for registration was of the opinion that the instrument was liable to a general stamp duty in addition to being chargeable with court-fee. On behalf of the Government, the learned Government Pleader in that case contended that the document fell under Article 57 as well as Article 40(b) of the Stamp Act and hence stamp duty was payable both under the Court-Fees Act and the Stamp Act. The judgment of the Court which was delivered by Wallis, C.J., dealt only with this aspect of the question, namely, whether the document was chargeable both under the provisions of the Court-Fees Act and the Stamp Act. It was held that the bond must be stamped under both. But the learned Chief Justice further observed that so far as the Indian Stamp Act was concerned, the document would be chargeable under Article 40 of Schedule I of the Stamp Act because it came within the definition of a mortgage in that Act. One important fact which must be borne in mind in following the judgment in that case is that the document was to secure a sum of Rs. 150 and the stamp duty payable either under Article 40 or under Article 57 was the same. It was not therefore necessary for the learned Judges to examine the question which of the two articles was the proper article to be applied to the bond before them. The security bond in that case was executed by a person for the due performance of the duties of a receiver appointed by the Court. Clearly the bond fell within Article 57. In a recent decision of the Calcutta High Court in Dheerendranath Podddr v. Hemanginee Dassee I.L.R. (1935) Cal. 173, it was held that the security bond executed by a receiver for the due execution of his office fell under Article 57 of Schedule I of the Indian Stamp Act. There can be no doubt that a security bond executed by a receiver for the due performance of his duties as receiver would be a bond for the due execution of an office. In our opinion, the decision in Amirthammal v. Ramalinga Goundan : (1920)38MLJ503 , in so far as it held that a security bond executed by a receiver binding himself and his properties for the due discharge of his duties must be stamped under Article 40 of Schedule I of the Stamp Act is not correct and must be to that extent overruled.
7. In the present case, we hold that the bond falls directly under Article 46 of the Madras Stamp Amendment Act corresponding to Article 57 of the Indian Stamp Act and it must be stamped in accordance with that provision.