T. Venkatadri, J.
1. The only question that arises in this writ petition is whether the petitioner is liable to pay the penalty and stamp duty in respect of a rent deed or lease agreement levied by the Revenue Division Officer and confirmed by the District Revenue and the Board of Revenue.
2. Learned Counsel for the petitioner appearing for the landlord contends before me that he is not liable to pay either the penalty or the stamp duty but it is only his tenant that has to pay the same under the provisions of the Stamp Act. He draws my attention to Section 29 of the Act which reads thus:
In the absence of an agreement to the contrary the expense of providing the proper stamp shall be borne; (c) in the case of a conveyance (including a reconveyance of mortgaged property) by the grantee; in the case of a lease or agreement to lease by the lessee or intended lessee.
3. Learned Counsel further draws my attention to a Bench decision of this Court in Subramania Chettiar v. R.D.O., Devakottah : AIR1956Mad454 , where Panchapakesa Aiyar, J., observed that Section 2(12) of the Stamp Act says 'executed' and 'execution' used with reference to instruments, mean 'signed' and 'signature'; but Section 62 makes only persons signing otherwise than as a witness liable to prosecution and penalty, showing thereby that witnesses who sign any document are not 'executants' bound to pay the stamp duty and penalty. The learned Judge also referred to the Privy Council decision in Puranchand Mehta v. Mukherjee L.R. (1928) 55 I.A. 81 : (1928) 54 M.L.J. 473, where the Privy Council has held that persons executing i.e., 'executants' do not include all persons signing in the document but only persons who by a valid execution have entered into an obligation under the document; and so not only witnesses but even other persons, like persons in whose favour the document is executed but who undertake no obligation under the document will not be executants for purposes of being proceeded against under Sections 40 and 48.
4. There is also recent decision of Jagadisan, J. in Doraiswami Gounder v. Revenue Divisional Officer : AIR1962Mad425 , where it was observed that where a person in whose favour an agreement to sell is executed has not signed the document and undertaken any obligation he cannot be made liable under the provisions of the Stamp Act for stamp duty and penalty payable in respect of such document.
5. Relying on the principle of these decisions, I am of the opinion that the petitioner is not liable to pay either the stamp duty or the penalty as levied by the Revenue Divisional Officer and confirmed by the higher authorities. In these circumstances, as far as the petitioner is concerned, he is not liable to pay the penalty and the duty.
6. The writ petition is allowed. Learned Counsel for the petitioner represents to me that he has paid both the stamp duty and the penalty as levied, under protest. As I am allowing the writ petition the petitioner is entitled to a refund of the same. No order as to costs.