1. The question for consideration in these cases is whether vakalatnamas containing stipulations to the following effect are required to be stamped as agreement under the Stamp Act, as also as vakalatnamas under the Court Fees Act: (1) The pleader is to receive certain fees for work to be done for his client in Court in a case before the Court in which the vakalatnama is filed. (2) The pleader is not bound to appear and act, if fees are not paid in advance. In view of the provisions contained in the Stamp Act, an instrument comprising or relating to several distinct matters is chargeable with aggregate amount of duties with which separate instrument each comprising or relating to one of such matters would be chargeable (Section 5). In applying this provision of law, there can be no doubt that what has to be taken into, account is what the parties concerned purported to provide for, by an instrument, and not whether any particular provision was necessary or might have been dispensed with the question being whether a deed contained two distinct matters, as specifically mentioned in Section 5, Stamp Act. Two matters however are considered to be distinct, if one of them is subsidiary to another contained in the same document the test being whether one is incidental and accessory to the other. The position has to be kept in view and what has to be considered is whether any instrument contains distinct matters and not whether it contains two distinct contracts.
2. In applying the rules deducible from the provision contained in Section 5, Stamp Act, to which reference has been made above the cannons of construction applicable to fiscal statutes must be kept in view and in case of doubt, the construction of a fiscal statute should be construed strictly in favour of and beneficial to the subject. There cannot be any equitable construction of a fiscal statute; and the Crown seeking to recover a tax must bring it within the lettersof the law; otherwise the subject is free: See Killing Valley Tea Co., Ltd. v. Secy. of State 1921 Cal 40 at p. 425. The intention to tax a particular instrument in different ways must appear in clear and positive words. In the case before us the stipulation to remunerate the pleader in advance is a necessary part of the vakalatnama and was not a separate agreement or a separate matter, as contemplated by Section 5, Stamp Act. The vakalatnamas in question containing one indivisible contract were chargeable under Article 10, Schedule 2, Court-fees Act; and there were no such distinct matters contained in them to which the provisions of the Stamp Act relating to agreements were applicable.
3. On proper construction of the vakalatnamas before us, there was no doubt that the instruments do not comprise or relate to several distinct matters and there can be no question of charging them with the aggregate amount of duties with which separate instruments, each comprising or relating to one of such matters, would be chargeable under the law. As indicated sufficiently clearly, there is no room for any doubt as to the proper construction either of the terms of the vakalatnamas or of the provisions of the law applicable to the same; and even if there was any room for doubt, in the absence of any definite provision of the law, the vakalatnamas are not chargeable both under the Court-fees Act and the Indian Stamp Act, as held by the learned Judges in the Court below. The rules are made absolute. The orders against which the rules were directed are set aside. There is no order as to costs in the rules.