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Saiyed Shaban Ali vs Sheikh Mohammad Ishaq

High Court Of Judicature at Allahabad|27 April, 1939


1. This is a reference under Section 61, Stamp Act, and the question that we have got to decide is whether paper No. 7-C is a lease as well as an agreement or only an agreement. The learned Judge of the Small Cause Court was of the opinion that the document was an agreement only, whereas the Inspector of Stamps held the view that it was a lease as well as an agreement. We have perused the document and we have come to the conclusion that it is a lease as well as an agreement. It is executed not by the lessor but by the lessee, and the latter covenants that he would take certain premises from the lessor, make certain alterations in the premises at his own cost, pay Rs. 9 a month as rent and the period of occupation was fixed as five years. It was also stipulated that the executant will not leave the premises for five years and if he did vacate the premises within five years he would be liable for the rent of five years. The document was executed on 11th December 1927 on a general stamp of 8 annas. As we said before, the terms of the document leave no room for doubt that it is a lease as well as an agreement. 'Lease' under the Stamp Act "includes a kabuliyat or other undertaking in writing...to occupy or pay or deliver rent for immovable property." Under Section 6, Stamp Act, if an instrument is so framed as to come within two or more of the descriptions in Schedule I and if the duties chargeable thereunder are different the instrument will be chargeable only with the highest of such duties. The document is a lease as well as an agreement, and as the duty for a lease is higher, it will be chargeable only as a lease. The annual rent reserved is Rs. 108, that is to say, it exceeds Rs. 100 and does not exceed Rs. 200. As a conveyance a duty of Rs. 2 is chargeable. In case of a lease, where the lease purports to be for a term in excess of three years, as it is in the present case, the duty is the same as on a conveyance for a consideration equal to the amount or value of the average annual rent reserved. We therefore declare that the document is chargeable as a lease, and we determine the amount of duty thereon as Rs. 2. Annas 8 having already been paid, the deficiency is Rs. 1-8-0. Under Section 35 of the Act a penalty is also leviable and such a penalty shall be ten times the amount of the deficiency, that is Sections 15. We make the above declaration and we direct that a copy of our judgment will be sent to the Collector.
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Saiyed Shaban Ali vs Sheikh Mohammad Ishaq


High Court Of Judicature at Allahabad

27 April, 1939