1. This is a reference under the Stamp Act, the question being whether a document styled as partition and release dated 15th June, 1959, should be termed as a conveyance, which should attract duty under Art. 23 in the schedule to the Stamp Act. By a deed dated 17th January, 1957, the respondent's mother to whom the property belonged absolutely settled a life interest in favour of the respondent' and his minor son, reserving at the same time a similar interest in herself, and further providing that after her death and of her son, the remainder should, vest absolutely in the respondent's son and his brothers. The document dated 15th June, 1959, which followed an arbitration relating to the family properties of the respondent, his father and his son and to which the respondent's mother was party, purported to divide the family properties in accordance with the terms of the award. The document also dealt with the property that was the subject-matter of the earlier document.
The operative part of it stated that the mother gave up her life interest in the property in favour of her son and grandson and instead it was agreed that she should be paid a sum of Rs. 100 per month and the payment of this sum was charged on some other property specified in the document. The document described itself as a partition and was stamped as such. But the revenue considered that it was a composite document partly serving as a partition and partly as a conveyance in so far as it related to the mother giving up her life interest in the property.
2. There is no dispute before us that as a partition the document has been certrectly stamped. The only question is whether the document, in so far as It operated for the mother giving up her life interest in the property, is a conveyance. We are clearly of opinion that it is not and that part of it operated only as a release within the meaning of Art. 55 of the Schedule to the Stamp Act. That -such a release is for consideration does not make any difference to its character as such. That much is clear from the Reference under the Stamp Act, S. 46, (1895) ILR 18 Mad 233(FB).
3. The essential difference between a conveyance and a release lies in the fact that, in the latter, there is no transfer of an interest or right to another, who had no pre-existing right in it to any extent A release of a right or of a claim can only be in favour of a person who had a preexisting right or claim and by reason of the release the latter's right or claim is enlarged or is made fuller in its content. Kuppuswarni v. Arurnugha, quoting from Hutchi Gowder v. Bheema Gowder, and S. P. Chinnathambiar v.
Chinnatharnbiar, accepted the proposition as correct that a release can only feed title but cannot transfer title or that "renunciation must be in favour of a person, who had already title to estate, the effect of which is only to enlarge the right; renunciation does not vest in a person a title where it did not exist."
4. Board of Revenue v. Murugesa Mudaliar, (FB) was a case of one of the co-owners releasing his right in favour of the rest of the co-owners. This court held that the document relating to it was a release and not a conveyance. In expressing that view, Rajamannar, C. J.; who spoke for the court, observed :
"In such a case there need be no conveyance as such by one of the co-owners in favour of the other co-owners. Each co-owner in theory is entitled to enjoy the entire property in part and in whole-It is not therefore necessary for one of the co-owners to convey his interest to the other co-owner. It is sufficient if he releases his interest- The result of such release would be the enlargement of the share of the other co-owner. There can be no release by one person in favour of another, who is not already entitled to the property as a co-owner."
5. Chief Controlling Authority v. Patel, which, like Board of Revenue v. Murugesa Mudaliar, FB, was under the Stamp Act, took a similar view. Both these cases related to release of a co-owner's right in favour of the rest of the co-owners. We are here concerned with joint possession and one of the persons entitled to joint possession giving up her right to such possession. The release, as in the case of a release in co-ownership, goes to enhance the interest of the rest of the persons entitled to joint possession.
6. The question referred to us is amply covered by authority with which we find ourselves in entire agreement. The question is, therefore, answered against the Revenue, as -we hold that the document was rightly stamped and that the material part under consideration operated as a release and not as a conveyance. Costs Rs. 250.