K. Veeraswami, C.J.
1. This is a reference under Section 57 of the Stamp Act, the question being whether in the circumstances and facts of the case, the document dated 16th February, 1968 executed by one Mumtaz Begum in favour of her husband styled as a release deed should be stamped as a conveyance under the Stamp Act.
2. When a question arises under which Article a document should be chageable, the first thing to be looked into is the document itself in order to determine the character thereof. The deeds covering the properties were in the name of the wife. But the wife admitted in the recitals that the entire consideration for the sale in her favour proceeded from her husband, and that she was only a name lender. Also, it is significant that there is a recital that the documents were with the husband. On a question whether a given transaction is a benami transaction, which is familiar in our country, usually the tests applied are source of purchase money, custody of title deeds, possession and payment of kists. In the instant case, the consideration, as admitted by the wife, has proceeded from the husband. Section 82 of the Indian Trusts Act says that where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. The effect of this provision is that, until the contrary intention is established by the claimant who has paid the money, the transfer shall be taken to be a real one and in favour of the transferee. In the instant one, the wife herself admits that the intention of advancement by the husband of the money for purchase of the two properties was not to benefit her at all. So, the proof required to establish the contrary intention contemplated under Section 82 is present in his case. Also, there is further evidence in the document itself that the title deeds were with the husband himself. Both had also executed a mortgage deed on the very same property and the recital is that after the release deed the husband should clear the debts. In the circumstances, we hold that the document will attract duty on a release deed and not as a conveyance.
3. The question referred to us is answered against the Revenue with costs. Counsel's fee Rs. 250.