SANTOSH PUNDLIK MADANKAR Vs. RAMDAS MAHADEORAO WAGHE

JUDGEMENT

(1.) THE point which is raised in this Civil Revision is no more res Integra as it stands concluded by the judgment of the Division Bench of this Court in the case of the Collector and Superintendent of Stamps, Bombay v. Laxmibai Saheb Angre (AIR 1948 Bom 336).

(2.) BRIEFLY , the facts are that the instant suit is between the landlord and the tenant. The applicant is a tenant who has executed a rent -note dated 15 -2 -1979 in favour of one Ramkrishna Gangaramji Khetkar of whom he claims to be the tenant in respect of the suit block. The terms and conditions in the said rent -note show that the applicant has taken on lease the block described in the said rent -note with effect from 15 -2 -1979 at the monthly rent of Rs. 60/ -. As per the terms and conditions in the said rent -note the applicant has undertaken to pay the rent every month after receipt of his salary. He has also agreed not to sub -let the suit block. He has further agreed in the rent -note not to use the suit premises for any other purpose. It is also a term in the said rent -note that at the time of vacating the suit premises a previous intimation of 15 days would be given by the landlord upon which the applicant agreed to vacate the premises without any objection. The applicant also has undertaken to give one month's notice before vacating the premises. There are also other terms and conditions in the said rent -note to which the applicant has agreed. It is not in dispute that the applicant is in possession of the premises described in the rent note with effect from 15 -2 -1979.

(3.) THE Learned Counsel for the applicant/tenant has urged that the rent -note is merely an agreement and, therefore, the stamp duty payable upon it is as provided in article 5 of Schedule I to the Act. It is his further contention that even if it is treated as a document of lease the stamp duty payable is as per article 36(a)(i) and not as per Article 36(a)(vii) of Schedule 1 of the Act. In considering the question whether the document |n question is merely an agreement or a lease the question has to be decided in accordance with the definition of the term "lease" given in section 2(n) of the Act. The said definition is an inclusive definition and in clause (ii) includes a Kabulayat (or other undertaking in writing not being a counterpart of a lease to cultivate, occupy or pay or deliver rent) for immovable property. The said inclusive clause clearly shows that if there is an undertaking in writing to occupy or to pay or deliver rent for immovable property then it is "lease" within the meaning of the definition of the said term. It is pertinent to notice the intrinsic evidence at this stage in article 5 of Schedule I relating to Agreement or memorandum of an agreement in which there is an entry "Agreement to Lease", which is shown to be covered by the entry 'Lease' in article 36 of Schedule I. In view of the above definition of the word "Lease" it is clear that the rent -note executed by the applicant is a document of lease upon which the stamp duty is leviable under article 36 of Schedule I of the Act.