TMI Blog1955 (10) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... Aiyyar, Syed Jaffer Imam And N. Chandrasekhara Aiyar, JJ. For the Appellant : M. C. Setalvad, Attorney-General of India (B. Sen and P. K. Bose, with him) For the Respondent (1955. October 4) : S. Chaudhury, (S. N. Mukherjee, B. N. Ghosh and A. K. Basu, with him) VENKATARAMA AYYAR J.- This appeal raises a question under section 5 of the Indian Stamp Act II of 1899. The respondent was, at the material time, the Managing Director of Messrs Bird and Co. Ltd., and of Messrs F. W. Heilgers and Co., Ltd., which were acting as Managing Agents of several Companies registered under the Indian Companies Act. He was also a Director of a number of other Companies, and had on occasions acted as liquidator of some Companies, as executor or administrator of estates of deceased persons and as trustees of various estates. On 4-7-1949 he applied to the Collector of Calcutta under section 31 of the Stamp Act for adjudication of duty payable on a power of attorney, marked as Exhibit A in the proceedings, which he proposed to execute. By that power, he empowered Messrs Douglas Chisholm Fairbairn and John James Brims Sutherland jointly and severally to act for him in his individual c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or relating to one of such matters, would be chargeable under the Act. Section 6, so far as is material, runs as follows: Subject to the provisions of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different, be chargeable only with the highest of such duties . The point for decision in this appeal is as to the meaning to be given to the words distinct matters in section 5. The contention of the respondent which found favour with the majority of the learned Judges in the court below is that the word matters in section 5 is synonymous with the word description occurring in section 6, and that they both refer to the several categories of instruments which are set out in the Schedule. The argument in support of this contention is this: Section 5 lays down that the duty payable when the instrument comprises or relates to distinct matters is the aggregate of what would be payable on separate instruments relating to each of these matters. An instrument would be chargeable under section 3 only if it fell within one of the categories mentioned in the Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by members of a family is wound up and the deed of dissolution effects also a partition of the family properties as in Secretary, Board of Revenue v. Alagappa Chettiar(1), the instrument can be viewed both as a deed of dissolution and a deed of partition, and under section 6, the duty payable will be the higher duty as on an instrument of partition. But supposing by that very deed one of the members creates a charge or mortgage over the properties allotted to his share in favour of another member for moneys borrowed by him for his own purposes, that would be a distinct matter which would attract section 5. Now, but for the saving clause, a contention might be advanced that sections 5 and 6 are mutually exclusive, and as the instrument falls within section 6, the only duty payable thereon is as on an instrument of partition and no more. The purpose of the clause in section 6 is to repel any such contention. Considerable stress was laid by Mr. Chaudhury on the scheme of the Act as embodied in sections 3 to 6 as strongly supporting the view that matters in section 5 meant the same thing as description in section 6. He argued that under section 3 the duty was laid not on all ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all the properties settled. By section 74, sub-section (1) of the Finance Act, 1910, voluntary dispositions were chargeable with a higher stamp duty as on a conveyance; but Government securities were, exempted from the operation of the section. The question that arose for decision was whether a separate duty was payable in respect of Government stocks under the provisions of the Stamp Act, 1891 over and above what was paid under section 74, sub-section (1) of the Finance Act, 1910 on account of other investments. Answering it in the affirmative, Rowlatt, J. observed: (1) [1929] 1 K.B. 608, If two different classes of property are being transferred by the same words of assignment in the same document, and those two different classes of property in the same document are different from the point of view of the Stamp Act and taxation, it seems to me in common sense that they must be distinct matters . The respondent wants to read these observations as meaning that where the matters are not dealt with separately for purposes of stamp duty, then they are not distinct matters. This, however, does not follow. The case before the court was one in which the instrument dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one power authorising X to manage one estate and Y to manage another estate, there would really be two distinct matters, though there is only one instrument executed by one person. But if both X and Y are constituted attorneys to act jointly and severally in respect of both the estates, then there is only one delegation and one matter, and that is specifically provided for in article 48(d). Conversely, if a number of persons join in executing one instrument, and there is community of interest between them in the subject-matter comprised therein, it will be chargeable with a single duty. This was held in Davis v. Williams [1804] 104 E.R. 358 , Bowen v. Ashley [1805] 127 E.R. 467, 469 , Good-son v. Forbes [1815] 128 E.R. 999, 1000-1001 and other cases. But if the interests of the executants are separate, the instrument must be construed as comprising distinct matters. Vide Freeman v. Commissioners of Inland Revenue [1870-71] L.R. 6 Exch. 101 . Applying the same principle to powers-of-attorney, it was held in Allen v. Morrison [1828] 108 E.R. 1152, 1153 that when members of a mutual insurance club executed Single power, it related to one matter , Lord Tenterdon, C. J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact that the respondent has executed it in different capacities. In this form, the question is bereft of authority, and falls to be decided on well-recognised principles applicable to the matter. It is, as has been stated above, settled law that when two persons join in executing a power-of-attorney, whether it comprises distinct matters or not will depend on whether the interests of the executants in the subject-matter of the power are separate or joint. Conversely, if one person holding properties in two different capacities, each unconnected with the other, executes a power in respect of both of them, the instrument should logically be held to comprise distinct matters. That will be in consonance with the generally accepted notion of what are distinct matters, and that certainly was the view which the respondent himself took of the matter when he expressly recited in the power that he executed it both in his individual capacity and in his other capacities. But it is contended by Mr. Chaudhury that the fact that the respondent filled several capacities would not affect the character of the instrument as relating to a single matter, as the delegation thereunder extended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three different capacities as vendor, mortgagor and lessor, and the instrument will have to be stamped as relating to three distinct matters. This, he contended, would destroy the very basis of a general power-of-attorney. The fallacy in this argument is in mixing up the capacity which a person possesses with acts exercisable by virtue of that capacity. When an executor, for example, sells one property for discharging the debts of the testator and mortgages another for raising funds for carrying on his business, he no doubt acts in two different transactions but in respect of both of them, he functions only in his capacity as executor. In our opinion, there is no substance in this contention. In the result, we are of the opinion, differing from the majority of the learned Judges of the court below, that the instrument, Exhibit A, comprises distinct matters in respect of the several capacities of the respondent mentioned therein, and that the view taken by the revenue authorities and supported by S. R. Das Gupta, J. is correct. This appeal will accordingly be allowed. The respondent will pay the costs of the appellant here and in the court below. BHAGWATI J.- I regret I a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on the nature and extent of the powers which he could exercise as such. In his own individual capacity he could exercise all the powers as the full owner qua whatever right, title and interest be enjoys in the property, whether it be an absolute interest or a limited one. he may be the absolute owner of the property or may have a life interest therein, he may have a mortgagee s interest or a lessees interest therein, he may be a dominant owner of a tenement or may be a mere licensee; but whatever interest be enjoys in that property will be the subject-matter of the power which he executes in favour of the donee. He may, apart from this individual interest which he enjoys therein, be a trustee of certain property and be may also enjoy the several interests described above in his capacity as such trustee. It may be that, in his turn he may be accountable to the beneficiaries for the due administration of the affairs of the trust but that does not mean that he, as trustee, is not entitled to exercise all these powers, the trust property having vested in him, and he being therefore in a position to exercise all these powers in relation thereto. The same would be the position if he w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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