TMI Blog1938 (8) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... as the plaintiffs contended. 3. Section 106 was first enacted in the year 1781 by Geo. III, c. 7, Section 8, and it is well known that the necessity for the enactment of the section lay in the historical conflict between Warren Hastings and the then Supreme Courts. Why this section continued to be retained in the subsequent Government of India Acts, including the Act of 1919 (9 10 Geo. V, c. 101), which, it is common ground, applies to this case, and even finds a place in the present Government of India Act of 1935 (26 Geo. V. c. 2), is difficult to appreciate. The conflict had ceased long ago, and as has been said, there is not the slightest justification for retaining this antiquated fossil on the Statute Book. As Mr. Maneckshaw for the plaintiffs put it, it is absurd that under the section, if it applies, the High Court in the exercise of its original jurisdiction cannot entertain a suit of this nature, whereas, unless there is any specific bar provided by any other statute, such a suit can obviously be brought, provided all other circumstances justified it, in any Court in the provinces. But I have nothing to do with the wisdom or the policy of the legislature. My plain ud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force. And, as pointed out by Lord Phillimore, the excluding law was suggested to be Section 106(2) of the Government of India Act. Dealing with that objection, Lord Phillimore observed as follows (p. 234): In their Lordships' view the order of a High Court to a revenue officer to do his statutory duty would not be the exercise of 'original jurisdiction in any matter concerning the revenue,' and the latter part of the clause need not be considered, for the proceedings in this case had not to do with the collection of the revenue, but with the preliminary assessment to ascertain what that revenue was. 6. These observations, it seems to me, do appear to suggest that the first part of the section refers to the preliminary proceedings taken for the purpose of determining what stamp duty is chargeable in respect of a document which is liable to stamp duty, and the second part refers to any act, that is to say, any process taken by the stamp authorities for the purpose of enforcing the payment of the duty that is determined by them to be properly payable in respect of such document. It is, therefore, argued, not without force, that the present case falls within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question arose in the well-known case of Spooner v. Juddow (1850) 4 M.I.A. 353 and, dealing with the contention that the Court had no jurisdiction, their Lordships observed as follows (p. 379): The point, therefore, is, whether the exception of jurisdiction only arises where the Defendants have acted strictly, according to the usage and practice of the country, and the Regulations of the Governor and Council. But upon this supposition the proviso is wholly nugatory ; for if the Supreme Court is to inquire whether the Defendants in this matter concerning the public revenue were right in the demand made, and to decide in their favour only if they acted in entire conformity to the Regulations of the Governor and Council of Bombay, they would equally be entitled to succeed, if the Statutes and the Charters contained no exception or proviso for their protection. Our books actually swarm with decisions putting a contrary construction upon, such enactments, and there can be no rule more firmly established, than that if parties bona fide and not absurdly believe that they are acting in pursuance of Statutes and according1 to law, they are entitled to the special protection which the Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued that the word the revenue in Section 106(2) of the Government of India Act cannot, by any stretch of imagination, apply to the duty payable under the Indian Stamp Act, because the learned Counsel stated that when the section was, first enacted in 1781, the only revenue then known to legislature was land revenue and no other revenue. Historically that may or may not be true. Of course, when the words of a statute are ambiguous, it may be legitimate to refer to the construction put upon the expression by the Courts throughout a long course of years for the purpose of ascertaining the intention of the legislature and as evidencing what must presumably have been its intention at that remote period. But I feel bound to construe a recent statute, which is before me, according to its own terms, when these are brought into controversy, and not according to its historical origin or otherwise, and I am not aware of any rule of interpretation which compels me to resort to history for the purpose of finding out that in 1781 the only revenue, which was intended to be protected by the excepting section, was land revenue and no other kind of revenue; nor can I attach any particular importan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued. 14. This is sufficient to put an end to this suit ; but as the case is likely to go further, I proceed to deal with the dispute on merits. 15. It is common ground that what is the proper stamp duty chargeable in the present case depends upon the construction of the deed of transfer as a whole and Article 63 of the Indian Stamp Act read with Section 25 of that Act, and the whole argument of counsel before me has proceeded upon the footing that, having regard to the option reserved to the lessee by the lease of 1930 and having regard to the further option given by the deed of transfer to the plaintiffs to terminate the lease in the event of the mines getting exhausted, the lease cannot be said to be for a definite period so as to attract the terms of Sub-clause (a) of Section 25 of the Indian Stamp Act, but the case must fall under the provisions of Sub-clause (b) of Section 25 of the Act. Section 25 of the Indian Stamp Act is in these terms: Where an instrument is executed to secure the payment of an annuity or other sum payable periodically, or where the consideration for a conveyance is an annuity or other sum payable periodically, the amount secured by such instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the subsistence of the lease, a Stamp Officer, who has to determine the stamp duty when the document is presented to him, can immediately ascertain the total sum payable for the fixed period. Obviously, this is not possible, where the lease is in perpetuity or where there is no definite time fixed during which the lease is to subsist. In the first case, the case would fall under Sub-clause (a) ; in the second case, it would come under Sub-clause (b). All that, therefore, the stamp authorities have to see is, Can I ascertain in regard to this particular lease, which is said to be transferred or assigned by a deed, the total sum payable by the lessee? If I can do so, I must proceed under Sub-clause (a) ; if I cannot do so, then I must take the total sum to be the capitalised sum for 20 years. The period, therefore, during which the lessee is to hold the estate, or the period when the lease expires or can be determined either by reason of a provision contained in that behalf in the lease or otherwise in accordance with law, has nothing to do with the section and is not of so much importance to the stamp authorities. True, that in that sense, the duration of the lease may be coe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion, that is not the proper way of looking at the section. In the present case, the sum payable is so payable for a definite period of ninety-nine years. True, the lessee may terminate the lease after one year, or the mines may get exhausted after ten or twenty years, but that is at the option of the lessee. Conceivably he may not terminate it, or the mines may not get exhausted for the whole period of ninety-nine years, and then he gets the estate conveyed to him for ninety-nine years certain, and will be, under the obligation to pay the royalty fixed for that period. The view, which I am taking, is supported by a decision in Mount Edgcumbe (Earl) v. Inland Revenue Commissioners [1911] 2 K.B. 24 and the point, which I am dealing with, is brought out very clearly by the following observations of the learned Judge in that case (p. 30): The words are 'for and during the term of ninety-nine years,' and I do not think it is possible to say of this instrument that the term or time is not defined in it at all. It is said, justly, that you must read the whole agendum together, and, so reading it, give effect to the words which follow, 'if' the three persons named ' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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