1. In this reference made under Sec. 57 of the Indian Stamp Act (Central Act II of 1899), the question that requires to be considered, as set forth by the Chief Controlling Revenue Authority, Board of Revenue, Madras, is-
"Whether the document dated 5th November 1975 executed by the respondent and purporting to be a trust deed is just a trust deed and liable to be stamped as such under Art. 64-A of Schedule 1 to the Stamp Act or is a settlement deed as defined under S. 2(24) of the Stamp Act and therefore liable to be stamped as such under Art. 58-A of Schedule I to the Stamp Act?"
Before referring to the concept of a settlement deed or a trust deed as defined in the Act or as known to the law, we would like to refer to the terms of the document in question since ultimately it is the terms of the document which will determine the character of the transaction. The document was executed by the respondent T. Ranganathan Pillai, on 5th November, 1975 in favour of his mother's sister's husband. In the document it is recited that even during the lifetime of his father, the respondent and his brothers became divided from the father and because of his inexperience and inability to manage his own properties, his father, in the interest of the family, was managing the properties of the respondent also and that after the death of the father on 8th February 1975, the respondent did not have any assistance or help from proper persons for the management of the properties and therefore had experienced several difficulties. The document also points out that persons who were prepared to take advantage of the inexperience of the respondent and injure him were not wanting. It is in such a situation he thought about the best method of preserving the properties for the benefit of himself and the members of the family and, on the advice of and in consultation with his paternal uncle and others who were interested in the affairs of the family, he came to the conclusion that the only method of dealing with the situation was to create a trust in respect of his properties for the benefit of his family and himself. It is in view of this conclusion he was executing the document. He further pointed out that there were debts incurred by his father and his share of the debts had also not been discharged and he had executed a power of attorney in favour of his brother Peria Thiruvadia Pillai in connection with the discharge of those debts and he had to support his wife Krishnaveniammal and his daughter Parvathi out of his estate. The document further states that in view of the drought, the properties were not yielding any income and he was finding it difficult even to maintain himself and his family and, in the prevailing situation, he had to incur debts for the purpose of running the family itself. Under these circumstances, for the purpose of property maintaining himself and his family he was creating a trust in respect of the properties favour of his mother's sister's husband, S. S. Muthukumaraswamia Pillai. The document recites that he was transferring all his properties in favour of the said Muthukumaraswamia Pillai, by way of trust, go that in the interest of the family of the respondent, he could absolutely administer, enjoy and deal with the properties. One of the recitals in the document says that in his capacity as trustee, the said Muthukumaraswamia Pillai will realise the income from the properties and maintain the respondent and the members of the family and the said Mutliukumaraswamia Pillai, in his discretion can enjoy the properties directly or by leasing out and he should maintain correct accounts in respect of the income and expenditure of the estate, even though, having regard to the confidence he had reposed in the said Muthukumaraswamia Pillai, he had no right to question the correctness of the accounts maintained by him or take proceedings against him with reference thereto. it also states that if the trustee feels a transfer or exchange of any of the properties was necessary for the benefit of the family, he was competent to do so. Thereafter occur a few crucial sentences. One such sentence is that if any one of his children becomes a major, the trustee, namely, Muthukumaraswamia, Pillai, is wider an obligation to entrust the trusteeship to that major so that he can administer the properties for the benefit of himself and the other heirs of the respondent. The document further states that if before any one of the heirs of the respondent attains majority, the said Mutilukuntaraswamia Pillai wants to free himself from the trusteeship, it is open to him after consultation with the uncle of the respondent, namely, T. K. RamaRaja Kavirayar, to nominate another trustee mid hand over the trusteeship to him. The person who thus becomes a trustee will have to perform the obligations and exercise the rights referred to in the trust deed. The document concludes by stating that the respondent had no right to either modify or cancel the same. It is this document with these recitals that has now to be considered as to whether it is a settlement as defined in the Stamp Act or merely a trust deed.
2. The expression 'settlement' has been defined in S. 2(24) of the Indian Stamp Act 1899 and that definition reads as follows:
"Settlement", means any non-testamentary disposition, in writing, of moveable or immovable property made-
in consideration of marriage; (b) for the purpose of distributing the property of the settlor among his family or those for whom he desires to provide for the purpose of providing for some person dependent on him, or (c) for any religious or charitable purpose; and includes an agreement in writing to make such disposition has not been made in writing, any instrument recording whether by way of declaration of trust or otherwise, the terms of any such disposition."
It is not in dispute that before a transaction can fall within the scope of this definition, the disposition of the property must be made for one or other of the three purposes mentioned in clauses (a), (b) and (c). It is conceded by the learned Additional Government Pleader that the document will not come within the scope of S. 2(24)(a) of the Stamp Act, because there is no disposition f property in consideration of marriage. Equally admittedly the transaction will not come within the purview of See. 2(24)(c) because there is no disposition of property for any religious or charitable purpose. The learned Additional Government Pleader, at one stage, felt that the transaction will fall within the scope of Sec 2(24)(b), but on -further consideration after reading the recitals in the document, conceded that clause (b) of See. 2(24) also will not apply. Ultimately the learned Additional Government Pleader had to fall back upon only the inclusive portion of the definition reading
" .... an agreement in writing to make such a disposition and, where any such disposition has riot been made in writing any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition."
Admittedly the document in question is not an agreement in writing to make any disposition. Therefore, it cannot fall within the first limb of the inclusive part of the definition as well. Then there remains only one other point, namely, whether it earl be said to be an instrument recording, whether by way of declaration of trust or otherwise, the terms of any sue disposition. The crucial word to be considered in this behalf is the word 'such' qualifying the expression 'disposition'. Therefore, in the conclusive portion of the definition, the expression 'such disposition will undoubtedly govern only the disposition contemplated by clauses (a), (b) or (c) of S. 2(24). If the disposition does not fall within the scope of S. 2(24)(a), (b) or (c) then the inclusive portion of the definition also will not apply. As we pointed out already, the learned Additional Government Pleader also has conceded that neither clause (a) nor clause (c) nor even clause (b) applies to the transaction in question, and consequently, the inclusive portion of the definition also cannot apply. It is not in controversy that if the transaction in question does not fall within the scope of Sec. 2(24) of the Stamp Act, as a settlement, it has to be treated only as a declaration of trust under Article 64 clause (a) and there is no contention that it will fall under any other Article of Schedule I to the Indian Stamp Act 1899. We may point out that the learned Additional Government Pleader drew our attention to certain decisions of this Court as well as other High Courts but we are not referring to any of them because, ultimately the nature and character of a transaction has to be determined only with reference to the language which the document employs.
3. Under these circumstances, we answer the question referred to this court by stating that the document in question is chargeable to stamp duty under Art. 64 clause (a) as a declaration of trust and not. under Art. 58 as a settlement as defined in Sec. 2(24) of the Indian Stamp Act 1899. As this question is answered against the Revenue, the respondent is entitled to his cost counsel fee is fixed at Rs. 250.
4. Answer accordingly.