1. The question referred to us by the Board of Revenue under Section 57, Stamp Act, is whether the document styled a deed of release executed on '23-5-1949 is liable to be charged with stamp duty under Articles 39(b), 44(b) and 19 of Sch. I-A of the Stamp Act respectively.
2. The referring Authority was of the opinion that the document in question came under all the three Articles and therefor liable to be charged with stamp duty under each of these three Articles. Article 39(b) of the Schedule I-A of the Act deals with an instrument of dissolution of partnership. Article 44(b) is an article applicable to an instrument of release whereby, a person renounces a claim upon another person or against any specified property. Article 19 applies to a conveyance.
3. The executants of the deed are three persons, who along with two persons in whose favour the deed was executed, where partners of a registered firm known as 'Gudiyatham Lungi Company'. The executants appear to have ceased to be partners of the firm from and after 12-4-1949. The Preamble recites that the releasors, i.e., the executants, were co-owners of the immoveable property described in the schedule to the document as House and ground bearing door No. 47 in Coral Merchant Street, G. T. Madras, entitled to three-fifths share, therein, that the book value of the said property was a sum of Rs. 16,431-2-6 and that the releasors after having retired from the firm, desire to renounce all interest in the said property by deed, receiving the proportionate value of their shares in cash. The operative portion of the document in _so far as it is material is as follows:
'This deed witnesseth that, in consideration of the sum of Rs. 9858-9-7 (Rs. nine thousand eight hundred and fifty-eight, annas nine and pies seven), the receipt whereof on or before the date of these presents through adjustment of accounts the releasors hereby release, extinguish, abandon, cancel, and otherwise relinquish all their respective rights, claims, demands or interest, in any manner or to any extent, in respect of the property set out and fully described in the Schedule here under.'
4. Now let us examine each one of the Articles under which the document is said to be chargeable with stamp duty. Article 39(b) need not detain us for any length of time. The document is obviously not a deed of dissolution of partnership and we did not understand the learned Government Pleader to maintain that it is. The parties charged with the stamp duty agree that it is a release falling under Article 44(b) and so we need not discuss this article either.
5. It only remains to consider whether the instrument falls within the definition of conveyance under Article 19 of Schedule I-A of the Stamp Act. We are of opinion that it docs not. The document proceeds on the footing that the five persons, namely, the three executants and the two persons in whose favour the instrument was executed, who were carrying on business of that firm owned the properly as co-owners, the executants being entitled to a three-fifths share and the other two being entitled to the remaining two-fifths share.
It is riot the case of any one that there was a division of the property by metes and bounds and in accordance with the said shares. In such circumstances the document in and by which the co-owner purports to abandon or relinquish his claim to the share to which he would be entitled would be in the nature of a release within Article 44.
6. 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.
7. The learned Government Pleader relied upon the ruling of a Full Bench of the Bombay High Court in Hiralal Navalram, In the matter of, 32 Bom 505, (A), in which a document was held to be a conveyance. The facts of that case are totally different from the facts of the present case. There was a factory, which belonged in partnership to three, persons Navilram, Omkar and Shivnarayan, of whom Navilram was entitled to 12 annas share and Omkar and Shivnarayan together were entitled to the remaining 4 annas share.
The heirs of 4 annas share sold it to one Ramchand. He died and it was his adopted son, who executed the deed in question purporting to relinquish all his claims over the 4 annas share in the partnership for Rs. 17,841 in favour of Navilram, who was entitled to the 4 annas share. It was held by the Special Bench that by the document the executing party purporting to be entitled to a share in a going Pressing Factory, transferred the whole of that share to the other person interested in the factory for the sum of Rs. 17,841 and therefore, the document was a conveyance on sale of property, namely, the quarter share in the Pressing Factory.
Now, it must be noticed at the outset that the document was not treated as a document relating to a particular immoveable property. It was understood as a document relating to rights and interests respecting a four annas share in a partnership business. The following from the material portion of the deed shows the true scope of that deed;
'In consideration of all the rights which I have acquired (namely) in the profits in respect of the press described above and the press machines and other machinery and the things and dividend etc, I have this day received from you Rs. 17,841 in the lump. Now nothing remains due to me by you in respect of any of the aforesaid things.'
The document was not, therefore, a release 'simpliciter by one co-owner in favour of another of his interest in particular immoveable property. It was, on the other hand, a conveyance by the purchaser from the representatives of a deceased partner of their lights to the assets of the partnership in favour of the other partners. The decision, therefore, has no application to the present case.
8. The learned Government Pleader was prepared to concede that a document under which, one Hindu coparcener purported to give up his rights to the family property in favour of the remaining coparceners would not be a deed of conveyance, but a deed of release. He did this apparently because of a decision of a Full Bench of this court in 'Reference under Stamp Act, Section 46, 18 Mad 233 (B).
In that case the document was one under which a Hindu son executed in favour of his father, as representing the interest of the other members of the family an instrument by which he relinquished his rights over the general property of the family in consideration of certain lands being allotted to him for life, and certain debts incurred by him being paid.
It was held that the instrument was a release, which should be stamped, as such. The learned Judges observed that it was a deed by which one co-owner renounced his claim for partition against the family property in consideration of a certain income to be enjoyed by him for his life out of certain lands over which he has no power of alienation. We can see no difference in principle between such a document as between members of a coparcenary and the document in question, which is a document between co-owners.
With respect, we follow the principle of thisFull Bench decision and apply it to the present case.We hold that the document in question is only arelease within the meaning of Article 44 of ScheduleI-A of the Stamp Act and was properly stampedas such. It was not liable to be charged either asa deed of dissolution of partnership or as a conveyance.