1. This reference arises out of a second appeal filed by the plaintiff against a decree made by the Second Court of Subordinate Judge, Alipore, affirming a decree for ejectment against the respondent. The respondent was a lessee under the appellant under an indenture of lease dated April 7, 1937. Under the terms of that indenture the lessors agreed to let and the lessee agreed to take on lease for a period of two months from April 10, 1937 and thereafter subject to the conditions mentioned in the lease on a monthly tenancy, agreeing to pay monthly rent at the rate of Rs. 11/14/- (Rupees eleven and annas fourteen) only. That tenancy was terminated by the appellant by a notice to quit and on tha expiry of the period of notice the appellant sued the defendant-respondent for ejectment and obtained a decree in that suit. In this suit the lease executed between the parties was produced and marked as Exhibit 1. The indenture was stamped with a stamp duty of twelve annas under Article 35 Clause (a) (i) of the Indian Stamp Act. In the Trial Court the defendant raised an objection as to the sufficiency of the stamp paid on the indenture of lease but that objection was overruled by the Trial Court on the authority of the decision of this Court in the case of A. M. Amolia v. Ibrahim Ishak, 23 Cal. W. N. 398: (AIR 1919 Cal 200 (I)) decided by Sanderson, C. J. and Woodroffe, J. After overruling the objection as to the sufficiency of stamp the Trial Court admitted the lease into evidence and marked it as Exhibit 1. The defendant took an appeal against the decree of the Trial Court and in the Appellate Court the defendant raised a similar objection as to the sufficiency of stamp affixed to the lease and contended that the lease should be stamped under Article 35(a) (viii) of the Indian Stamp Act. The Appellate Court without referring to tha decision in Amelia's case in 23 Cal. W. N. 398 : (AIR 1919 Cal 200 (1)) accepted the defendant's contention but in view of the provisions of sec. 38 of the Indian Stamp Act read with the ruling in the case of Bhupati Nath Chakravarty v. Basanta Kumari Devi : AIR1936Cal556 , came to the conclusion that it had no power to question the admissibility of the document in view of the fact that it had been rightly or wrongly admitted by the Trial Court. Nevertheless the Appellate Court observed as follows:
'The matter of realisation of the stamp duty penalty also now lies with the Collector, as I find from theaforesaid ruling, Office to do the needful and send necessary intimation to the Collector.'
In the end, however, the Appellate Court affirmed the decree for ejectment made by the Court of first instance in favour of the appellant. Against this decree of the lower appellate Court, the appellant filed a second appeal for the purpose of challenging the view expressed by the lower appellate Court as to the sufficiency of stamp paid upon the indenture of lease and also the legality of the direction given by the lower appellate Court for the purpose of realising stamp duty and penalty.
2. When the appeal came up for hearingbefore a Division Bench consisting of My Lord P.N. Mookerjee, J. and myself, we thought that thedecision in the case of Amolia, 23 Cal. W. N. 398:(AIR 1919 Cal 200(1)) was not correct and wereferred two questions for decision by a Full Bench.Those questions are:--
(a) Whether a lease which creates a monthlytenancy simpliciter, terminable by a notice to quit,is governed by Article 35(a) (i) or Article 35 (a) (viii)of the Indian Stamp Act as amended by BengalAct III of 1922; and
(b) Whether the case of 23 Cal. W.N. 398: (AIR 1919 Cal. 200 (1)) was correctly decided. As the questions arose in second appeal, the Division Bench referred the whole case for the decision of the Full Bench.
3. After hearing Dr. Gupta in support of the appeal at considerable length, I have reached the conclusion that the questions which have been referred to the Full Bench do not really arise upon the order made by the Court of appeal below, I have already quoted above the operative portion of the order made by the lower appellate Court. It is quite clear that the direction given by the lower Appellate Court does not come under any of the sub-sections of Section 61 of the Indian Stamp Act. That Section 61 does not authorise any Court of appeal to direct its office 'to do the needful and send necessary intimation to the Collector' for the purpose of realisation of stamp duty and penalty. The order made by the Court of appeal below, therefore, is entirely without jurisdiction. If we take this view of the matter, the appeal filed by the appellant is not maintainable because the decree of the lower appellate Court, as it stands, is entirely in favour of the appellant and the appellant cannot have any right of appeal against a finding when that finding does not affect the decree which is wholly in its favour. Still, however, as suggested in the order of reference, we treat the memorandum of appeal as a petition in revision and quash the direction given by the Court of appeal below upon its office to give necessary intimation to the Collector for the realisation of stamp duty and penalty.
4. In this view of the matter the questions referred by the Division Bench to the Full Bench do not arise for consideration and need not be answered. The appeal filed by the appellant is dismissed as not maintainable but the direction given by the Court of appeal below upon its office is set aside in exercise of our revisional powers. There will be no order as to costs in this Court.
5. I agree with my Lord the Chief Justice.
P.N. Mookerjee, J.
6. I agree.
7. As said by my Lord, the Chief Justice, this appeal must fail as incompetent. It is clear also that, although, apparently, the learned Subordinate Judge purported to act under Section 61 of the Indian Stamp Act, he failed to act in compliance with the provisions of that section, or, as required by it. The direction to the office in the matter, purporting to be under the aforesaid section, is, plainly, one, not contemplated by it and not in accordance with its provisions. That direction, therefore, must be set aside in the exercise of our revisional powers. Once, however, that is done, the appellant's entire grievance disappears, making it unnecessary for us to answer any of the questions, referred to the Full Bench.
8. In the circumstances, the questions, referred to the Full Bench, need not be answered.
9. I, accordingly, agree in the order, proposedby my Lord, as, in the above context, that is theonly order, which can be passed in this case.