SUPERINTENDENT OF STAMPS Vs. TEJMAL NIHALCHAND SHAH

JUDGEMENT

(1.) THIS is a reference made to this Court under Section 57 of the Indian Stamp Act, 1899, raising a short question. By a conveyance of June 26, 1939, the one-fourth undivided share of the vendors in two immoveable properties was sold to the purchasers for a sum of Rs. 14,000. One of the properties sold was subject to a mortgage debt amounting to Rs. 66,633, and that property was sold subject to the mortgage. The question referred to us is: What stamp should be placed upon the conveyance ? The purchasers, in the first instance, seem to have contended that it should be stamped only on the consideration of Rs. 14,000, but subsequently they admitted that it should be stamped on Rs. 14,000 plus one-fourth of the mortgage debt. The revenue authorities were of opinion that the stamp should be based on the consideration of Rs. 14,000 plus the whole amount of the mortgage debt, that is to say, on a total consideration of Rs. 80,633, and the question we have to determine is whether that view is right.

(2.) SECTION 24 of the Indian Stamp Act, so far as material, provides that, where any property is transferred to any person, subject either certainly or contingently to the payment or transfer of any money, whether being or constituting a charge or incumbrance upon the property or not, such money is to be deemed the whole or part, as the case may be, of the consideration in respect whereof the transfer is chargeable with ad volorem duty. There was difference of opinion between various High Courts in India as to the meaning of that SECTION, and accordingly, on amendment, an explanation was added in these terms: Explanation.-In the case of a salq of property subject to a mortgage or other incumbrance, any unpaid mortgage-money or money charged, together with the interest (if any) due on the same, shall be deemed to be part of the consideration for the sale.