1. The main question referred to us is whether the document, dated 27th May, 1958, purporting to be an affidavit by the respondent and other members of the joint family really constitutes a conveyance within the scope of Section 2(10) of the Stamp Act read with Article 23 of that Act.
Rajagopala Chettiar got a document registered on a stamp paper of Rs. 3 declaring that the properties belonging to him had been transferred to the Raja Rice and Oil Mills Limited, a private company. The document bore No. 2868 of 1956. He presented another document of 27th May, 1958, which also purported to be an affidavit by his sons and other members of the family. The earlier document contained, so far as is material to us, the following recital:
The said undertaking has since been promoted as Raja Rice and Oil Mills Ltd. Since the registration of the said undertaking, I have also transferred possession of such lands to the said Raja Rice aid Oil Mills Ltd. and the patta for such lands has also been issued to the said company. I hereby declare that the said lands and the buildings thereon, more particularly described in the schedule hereto, constitute now the property of the said Raja Rice and Oil Mills Ltd. and neither myself nor any one claiming through me has any right whatsoever in all or any of such properties, schedule lands, and buildings situate in Kasba Kallakurichi, South Arcot District, comprised in patta No. 68 measuring 12 acres 8a cents bearing the following survey numbers....
This document was in the form of an affidavit, as it opened up by saying, "I, Rajagopala Ghettiar...do hereby solemnly and sincerely affirm and declare as follows..." It was followed by recitals referable about the ownership of these properties to the joint family consisting of himself and his sons. The next document similarly purporting to be an affidavit of solemn and sincere affirmation stated much the same thing as to the ownership of the properties and then contains the following recital:
The patta for the lands has also been transferred in name of Limited Company and we declare that the lands mentioned below have been transferred to the Limited Company and they now constitute the property of Raja Rice and Oil Mills Private Ltd., and we hereby herebay that we either jointly or severally have absolutely no right, title or interest whatever in the said lands described below....
It having been disputed that the documents constitute a conveyance, the matter was adjudicated upon, with the result the executants of the documents were called upon to pay a total sum of Rs. 6,192 towards stamp duty under Entry 23 of the Schedule 1 read with Section 2(10) of the Stamp Act. The amount demanded was paid by instalments, the last instalment paid being on 4th March, 1964. The document was registered on 3rd December, 1964. On 15th February, 1965, K. Rajagopala Chettiar preferred a petition to the District Revenue Officer, South Arcot, for refund of the amount of the stamp duty and penalty under Section 45 of the Indian Stamp Act, since he had failed in the further stages of his approach to the hierarchy of the Revenue. Two questions the Revenue seem to contemplate. One is that the documents concerned constitute a conveyance attracting duty as assessed, and the other is the bar of limitation. On the view we take on the first question, the second question, does not arise for consideration.
2. On a careful consideration of the recitals we have extracted above, We are clearly of opinion that the affidavits constitute a conveyance of the properties and the clear intention of the executants was that in the form and guise of the affidavits, they should convey title to the company and divest themselves of the same. 'Conveyance' under Section 2(10) of the Stamp Act includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I. Though it is an inclusive definition, it is clear that the essence of a conveyance is transfer of property or an interest therein, whether movable or immovable, and the transfer should be inter vivos. That the recitals in the two documents amounted to a transfer is apparent. No doubt, it is mentioned in the document that possession of the properties had been delivered earlier, but that would not by itself be enough to vest title in the company. The intention of the deponents of the two affidavits was to declare that the company was the owner and that the deponents divested themselves of any title to the properties. It is not necessary that a document should use always the word 'transfer' or 'assign' in order to constitute such transaction. Whether there is a transfer will depend upon the words of disposition. If a person says in a document that he had delivered possession of property and thereby also he constituted the property delivered as the property of the other person, and at the same time, he also declares that in view of it he had divested himself of his title and he was no longer entitled to the property, the process of transfer is complete. Transfer means but vesting of title in one and divesting title from the other who gives up title. Whether there is transfer will have to be inferred from the intention expressed by the words used in the document. The expression in the affidavit of the father "I hereby declare...that the property constitutes now the property of the Company" shows that the intention was to vest title by those words in the company and that means a transfer-was intended. That this is the intention is made further clear and it is also effectuated by the further declaration that the deponent or deponents to the affidavits had no longer any right, title or interest in the properties.
3. We hold that the two documents together constitute a transfer and conveyance within the meaning of Section 2(10) and are chargeable to duty under Entry 23 of the 1st Schedule to the Stamp Act. The first part of the question referred to us is answered in favour of the Revenue, and in view of it, the second part of the question, as we said, does not call for an answer. The Revenue is entitled to its costs. Counsel's fee Rs. 250.