JUDGMENT George Knox and Aikman, JJ.
1. The plaintiffs, who are respondents to this second appeal,' produced before the Munsif of Muttra two documents; one was a conveyance, and the other a receipt. They wished the two documents admitted in evidence in support of their claim. Both the documents were documents executed in favour of the predecessor in title of the plaintiffs. The Munsif, being of opinion that the documents were not properly stamped, impounded them and sent them in original to the Collector, under the provisions of Section 38, Clause (2) of Act No. II of 1899. The Collector, acting under Section 40, Clause (1) (6), of the same Act, required from the plaintiffs payment of the proper duty together with a penalty. The plaintiffs did not pay the penalty, and the Collector put in force the provisions of Section 48 of the same Act, and attached certain property of the plaintiffs. Thereupon the plaintiffs brought the suit out of which this second appeal has arisen for the release of the attached property and damages. The Court of first instance ordered the release of the attached property and the decree of that Court was confirmed in appeal. Both the Courts concurred in holding that the duty and penalty were not recoverable from the plaintiffs, but from the other parties to the deeds in question. The defendant, namely the Secretary of State for India in Council, comes here in second appeal, and it is contended on his behalf that the Courts below have erred in holding that the plaintiffs were not liable to pay the stamp duty and penalty required of them.
2. In our opinion, this appeal must prevail. Section 40, Clause (1) (b), is silent as to the person from whom the payment of the proper duty and penalty is to be required. If the Collector required it from the wrong person, his procedure was open to review, as provided by Chapter VI of this Act. No step was taken to review the Collector's order. Therefore the Collector was acting within the authority given him by Section 48 in ordering the attachment. Further, we are of opinion that as it was the plaintiffs who wished the documents admitted in evidence in support of their claim, they are the persons from whom the Collector, in the first instance, can recover the duty and penalty required before the documents can be admitted in evidence. The provisions of Section 44 are important as showing that when any duty or penalty has been recovered from any person in respect of an instrument, and some other person was bound to bear the expense of providing the proper stamp, the person from whom the duty and penalty has been recovered shall be entitled to recover from such other person the amount of the duty and penalty so recovered. We decree the appeal and dismiss the suit with costs in all Courts.