TaxTMI 
TaxTMI 
1993 (10) TMI 348
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 2(g) or an "instrument" under Section 2(1) of the Act or such consent decree falls outside the ambit and scope of the definition of "conveyance" or "instrument" under the Act. 3.According to the appellants before us the consent decree is not covered by the definition of "conveyance" or "instrument". The consent decrees in all these matters are almost identical. 4.The Single Judge of the High Court while construing the aforesaid definitions held that the consent decree does not fall in any of these definitions and, therefore, such a decree is not liable for payment of stamp duty. 5.The State of Maharashtra being dissatisfied with the judgment of the Single Judge dated December 10, 1990 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e immoveable property was not the subjectmatter of suit. The question that fell for consideration before the Full Bench was as to whether in such circumstances the consent decree is an instrument whereby for the purpose of securing existing or future debt one person creates in favour of another a right in respect of a specified property. Under the decree a charge was created and this was by the agreement between the parties. The Full Bench took the view that the decree of such a nature is not liable to stamp duty. 8.The argument before the Full Bench was that the consent decree itself fell within the definition of "mortgage deed" but the Full Bench took the view that the definition was not wide enough to include such a decree. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e, transfer of share, debenture, proxy and receipt." The consent decree recites thus: "[A]nd the suit being this day called on for hearing and final disposal and the plaintiffs and the defendants appearing by their respective Advocates and at this stage the parties hereto through their Advocates consenting to the following order and decree, this Court by and with such consent doth order and decree that sale dated 18th day of October, 1982 being Exhibit 'B' to the plaint and do grant, sell, convey, assign, transfer, release and assure in favour of the plaintiffs, the immovable property comprising of the pieces or parcels of land.... And this Court by and with such consent doth record that on or before execution of the consent term....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... possession of the said immoveable property more particularly described in Exhibit 'A' to the plaint." 10.From the above recital in the consent decree there can be no manner of doubt that the parties to the transaction and the suit agreed that the consent decree itself shall operate as conveyance from defendants in favour of the plaintiffs in respect of the suit property particularly described in Ex. 'A' to the plaint. Before the High Court it was not contested that the consent decree does not operate as "conveyance". 11.There is no particular pleasure in merely going by the label but what is decisive is by the terms of the document. It is clear from the terms of the consent decree that it is also an "instrument" ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appellants, submitted that it is only by the amendment that with effect from December 10, 1985 the decree passed by the court has been for the first time introduced in the definition of " conveyance" and the said amendment does not refer to be by way of clarification or declaration of that position. It was thus submitted that prior to amendment the consent decree was not included in the definitions of " conveyance" and "instrument". The High Court proceeded on the footing that the 1985 Amendment was clarificatory and declaratory. 15.As we have noticed earlier the definitions of "conveyance" and "instrument" start with the expression "includes" which shows that the definitions a....