Madhya Pradesh High Court
Sardar Deorao Jadhav vs State Of Madhya Pradesh on 11 April, 1991
Equivalent citations: AIR1991MP247, 1991(0)MPLJ562, AIR 1991 MADHYA PRADESH 247, 1991 MPLJ 562
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT T.N. Singh, J.
1. This Reference is made on 3-7-1981 by the Board of Revenue, Madhya Pradesh, Gwalior, for short, the 'Board', under Section 57(1), Indian Stamp Act, 1899, for short, the 'Act'. With the Reference is annexed as Annexure 'A', copy of the Revision Petition, preferred under Section 56 of the Act by Sardar Deorao Jadhav, to the Board against order dated 27-9-1977, passed by Collector of Stamps, Gwalior. Copy of the document which was presented to Sub-Registrar, Gwalior, for registration and in respect of which, the payment was required to be made by the petitioner, namely, Rs. 7,320/- as deficient stamp fee, came as Annexure 'B' to the Reference.
2. Although in the Statement of the case, the Board observed that it was in full agreement with the view expressed by the Collector of Stamps and also by the Sub-Registrar, expressed in his report that the document in question attracted Article 58 of Schedule I of the Act and it was not covered by Article 64, following this Court's decision in Chaturbhuj Das, 1975 Jab LJ 833 : (AIR 1975 Madh Pra 209), the Board considered necessary to make the Reference for this Court's final decision on the controversy. We found ourselves confronted, however, by threshold objection to decide the controversy on our attention being drawn to another decision of this Court, Manohar Kunwarbai v. State of Madhya Pradesh, 1984 Jab LJ 64; (AIR 1984 Madh Pra 53) (FB). It was submitted to us that the Reference was incompetent in view of that decision because the Board did not expres its "doubt" and did not refer any "question" for this Court's opinion in regard to the controversy.
3. Shri Kelkar, Deputy Advocate General, also cited this Court's decisions in Mahant Ishwari Sharan Deo v. State, AIR 1982 Madh Pra 177 and State of M. P. v. Martandsingh, AIR 1984 Madh Pra 92, to submit that the Board was required to formulate in specific terms, the question of law on which this Court is required to give its opinion and that is not done in the instant case.
4. We have to decide, therefore, first if we are at all required under the law to render any decision on the Reference made. It is true that the Board has not framed any specific question to be answered by this Court and has only cited the case of Chaturbhuj Das (AIR 1975 Madh Pra 209) (supra) to exercise its jurisdiction in making the Reference, but Statement of case is quite exhaustive. The entire document is extracted at para 8 of the Order and in the first para itself is extracted the order of the Collector of Stamps, impugned in the Revision. It is also true that the Board expressed its agreement with the view of the Collector of Stamps, but what is also true is that reference is made in the Statement of Case to a decision of the Delhi High Court in the case of Chief Controlling Revenue Authority v. Banarasai Das, AIR 1972 Delhi 128 and the contention of the revisionist's counsel that Delhi High Court's decision was not attracted to the facts and circumstances of the case was rejected. Chapter VI of the Act is captioned, "Reference and Revision" spanning across Sections 56 to 72. As per Section 56(2), when the Collector "feels doubt as to the amount of duty with which any instrument is chargeable", he draws up a Statement of case and refers it with his opinion to the Chief Controlling Revenue Authority for decision and the Collector is required to assess and charge duty in conformity with that decision, as per Sub-section (3). Relevant portion of Section 57 is extracted :--
"57. (l)The Chief Controlling Revenue Authority may State any case referred to it under Section 56, -Subsection (2), or otherwise coming to its notice, and refer such case, with its own opinion thereon,--
(a) if it arises in a State to the High Court for that State.
(2) Every such case shall be decided by not less than three Judges of the High Court to which it is referred, and in case of difference the opinion of the majority shall prevail."
(Clauses (b) to (f) of Sub-section (1) omitted as not relevant). According to Section 58, the High Court is empowered to call for further particulars as to the case stated if it finds that "the statements contained in the case are not sufficient to enable it to determine questions raised thereby." Upon hearing the case referred, as per Section 59(1), the High Court "shall decide the questions raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded." The Revenue-authority is required, as per Sub-section (2) to "dispose of the case conformably to such judgment."
6. Reading the provisions aforesaid, we are of the view that when a reference is once entertained by the High Court and it is in seisin of the case referred, if it finds any difficulty in determining the questions raised by the statement in the case referred, the Court may make direction for "additions or alterations" to the case and for that purpose, it may refer back to cure the defect or deficiency. Section 57 does not, in term, require any question to be formulated, but what is required is that the statement contained in the case referred should be such that some questions are "raised thereby" which deserve decision of this Court. It does not appear to us that the reference made under Section 57(1) must fall and this Court should reject any reference when in specific terms, no "question" is framed for this Court's decision. The object of "reference" contemplated under the Act is same as reference made to the High Court under the Income-tax Act. Indeed, similar provision of reference is generally made in almost all revenue enactments, whether of State or of Union, with the same object of invoking jurisdiction of the highest Court in the State in regard to interpretation of any statutory provision and the jurisdiction is evidently advisory one, rather than adjudicatory. Revenue laws bear generally an expropriatory complexion and are prone to constitutional challenges. It is considered, therefore, in fitness of things, matching the scheme of the enactment, to secure decision on the scope and ambit of any statutory provision to guard against constitutional injunction that no tax shall be levied or collected, save by authority of law. See, in this connection, CIT v. Scindia Steam Navigation, AIR 1961 SC 1633 (1643) : 42 ITR 589; Vasant Lal v. CIT, (1962) 45 ITR 206 (SC) etc. Section 57(2) legitimately mandates, therefore, that High Court "shall" decide the "case" referred; the mandate does not concern any "question".
7. Our attention is also drawn to the decision in Chief Controlling Revenue-Authority v. Maharashtra Sugar Mills, Ltd., AIR 1950 SC 218, wherein it is observed that power to make a reference under Section 57 is not only for the benefit of the Chief Controlling Authority, but "it is coupled with a duly cast on him, as a public officer to do the right thing and when an important and intricate question of lawin respect of the construction of a document arises; as a public servant it is his duty to make the reference." In Banarasi Dass Ahluwalia's case, AIR 1968 SC 497, their Lordships observed that the Chief Controlling Revenue-authority is bound to State the case and make reference to the High Court under Section 57(1) when the case has "otherwise" come to its notice even if no reference is made to it under Section 56(2) if it is found that it involves a substantial question of law. It made no difference even if there was no case pending in regard to that question. They observed further that the authority is in a similar position in that respect as is Income-tax Tribunal under analogous provisions in the Income-tax Act. Allahabad High Court's Special Bench in Board of Revenue v. Saraya Sugar Factory, AIR 1971 Allahabad 70, expressed the view that the entire case referred, being the subject-matter of reference, the jurisdiction of High Court extends to deciding all questions raised by the case and where the case arises upon a revision application, the Courts are supposed to dispose of the questions raised in the revision application and its jurisdiction is not confined to the question suggested by the Chief Controlling Revenue-authority. R.S. Pathak, J., as his Lordship then was, speaking for the Court, referred to Section 58 and observed that it is when the statements are not sufficient to enable the Court to determine the questions arising for decision that there may be occasion for exercise of jurisdiction thereunder requiring the authority to "add or modify the statement submitted by it."
8. Sections 66(1) and 256(1) respectively, of the old and new Income-tax Acts expressly refer to the requirement of the Tribunal referring to the High Court "any question of law arising out of such order" of the Tribunal and yet, it has been held in Scindia Navigation's case (AIR 1961 SC 1633) (supra) that even if the Tribunal does not deal with any question of law raised before it for referring that to the High Court, "it must be deemed to have been dealt with" by the Tribunal, Their Lordships also held that the Court was competent in dealing with the reference to allow a new contention to be advanced if that was within the framework of the question referred. Kusumben's case, AIR 1960 SC 907 categorically contemplates amplification or refraining of any question to deal with a controversy arising out of the order of the Tribunal in respect of which reference is made to it though it says also that the High Court is not authorised to deal with "an entirely different question which the Tribunal never considered." Narain Swadeshi Weaving Mill's case, AIR 1955 SC 176 contemplates High Court's duty to reframe questions to dispose of finally the controversy raised in the statement of case, and indeed, the High Court having defaulted in that regard, the question was reframed by their Lordships.
9. Reverting to Manohar Kunwarbai, (AIR 1984 Madh Pra 53) (FB) (supra), we would like to observe that the decisions referred hereinabove of the Apex Court were not cited in that case. We have no doubt that the law laid down by the Supreme Court being binding on all Courts and Authorities in the country, in virtue of Article 141 of the Constitution, there could be no scope for this Court to take the view that existence of "doubt" or the requirement of any specific "question" were crucial to exercise by this Court of its jurisdiction under Section 57(1) of the Act. For another reason, we are of the view that it is not necessary to make a reference to the Larger Bench to review the decision because in that case too, the view expressed is that when a "case involves a substantial question of law", the Chief Controlling Revenue-authority "is obliged to refer the case under Section 57(1)" and that if the authority declines to do so "the High Court can command the authority by issuing a mandamus" to do so. The decision in that case appears to be based on a Full Bench decision of the Andhra Pradesh High Court, reported in AIR 1967 Andh Pra 90 (V.C. and D. Co. v. I. G., Registration) and in this connection, we would observe with utmost respect that the said decision of the Andhra Pradesh High Court is not binding on this Court. Martand-singh's case (AIR 1984 Madh Pra 92) (supra) is also based on the said decision of Andhra Pradesh High Court and Apex Court's decisions are not cited therein. In Mahant Ishwari Sharan's case (AIR 1982 Madh Pra 177) (supra), the position is little different in that two questions were duly referred by the Board to the High Court and the Court took the view that the controversy could have been decided by following the proper remedy of appeal contemplated under Section 47-A (4) of the Act. The Court expressed the view that the reference was not made "to get the opinion of this Court on any question of law" and that merely because the Board felt that the order of the S.D.O. had to be set aside, it could not exercise its jurisdiction to make the reference.
10. As a result of the discussion aforesaid, we find no difficulty in reaching the conclusion that the preliminary objection has not merit. After perusing the statement of case and annexures, accompanying the reference, we are of the firm opinion that substantial questions of law do arise and, therefore, we are obligated by the mandate of Section 57(2) to decide the "case" referred by dealing with those questions and we have found nothing lacking in the "case" referred as would require us to exercise our jurisdiction under Section 58 to refer it back to elicit further particulars. All relevant particulars have come before us and have been duly furnished by the Board along with statement of case in the form of Annexures A to D thereof. Mere non-framing in specific terms of questions raised by the petitioner before the Board in the revision petition and which arise also out of the order of the Board in respect of interpretation of the document embodied in the reference does not, according to us, impair our jurisdiction to deal with this reference. At para 40 of Board's statement of the case, we read the fact stated that "the properties, mentioned in the document, are temple deities and have been in the custody of the family of the petitioner for the last 500 years or more." On the basis of that fact, a question was raised before the Board by petitioner's counsel as noted by the Board, that the document in question was not "settlement" within the meaning of Section 2(24) of the Act and the Collector of Stamps had, therefor, wrongly applied Article 58. The contention further pressed was that a religious and charitable trust was excluded from the purview of Indian Trust Act and that when a declaration was made in respect of any property of a Hindu deity with the object of making applicable provisions of Indian Trust Act to the custodian of that property, Article 64 will be applicable. Delhi High Court's decision, aforesaid, in Banarasi Dass' case (AIR 1968 SC 497) (supra), petitioner's counsel contended, was wrongly relied on by the Collector of Stamps which was not applicable to petitioner's document.
11. Having reached the finding in para 5 that "the executant never claimed ownership of the said property in the context of Section 2(24) of the Act and having taken cognizance of the legal position that, "According to Hindu Law, a person can never be the owner of the deity and the deity itself is a juristic person capable of holding the property," the Board had accepted in a sense petitioner's contention because it also held categorically that, "the property which has already been dedicated by the forefathers of the petitioner is in the ownership of the deities of which the custody is with the petitioner, and it cannot be said that the petitioner has made a disposition of the property comprising of the deed". If the Board, at para 13, in the concluding para of the State of case, held that "it cannot be said that the case is not covered by Article 58 of Schedule IA" (sic), that evidently expresses Board's latent "doubt" even if that was not expressed. The finding and conclusion cannot stand together. On that basis also, we are of the view that despite the Board not expressly stating that it had any "doubt" in regard to the conclusion of the Collector of Stamps, the three decisions of this Court, cited before us (Manohar Kunwarbai (AIR 1984 Madh Pra 53), Mahant Ishwari Sharan (AIR 1982 Madh Pra 177) and Martandsingh (AIR 1984 Madh Pra 92), all (supra), do not impair our jurisdiction to deal with the reference. Accordingly, on the case stated, we frame questions, for the convenience of dealing with the reference, to decide the case referred :--
(1) Whether the property in respect to which the document in question was executed was of the ownership of the deity and in exercise of his right as a Shebait, the executant purported to make proper provision in respect of discharge of duties of his Office of Shebati in regard thereto by constituting himself along with others as co-trustees, for the custody thereof?
(2) Whether the document presented for registration as "Trust-deed" (Annexure B) was declaration of Trust within the meaning of Article 64 of Schedule I and was liable to stamp-duty in terms of that provision?
(3) Whether the document in question was an "Instrument of Settlement" within the meaning of Article 58 and was liable to be stamped with duty contemplated thereunder?
12. Before we take up for decision, the questions seriatim, we refer briefly to the statutory provision:
"Section (24) "Settlement" means any non-testamentary disposition, in writing, of movable or immovable property made--
(a) in consideration of marriage,
(b) for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some persons dependent on him, or
(c) for any religious or charitable purpose;
and includes an agreement in writing to make such a disposition and, where, any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition."
Article 58 of Schedule I prescribes stamp- duty in respect of a document ("instrument") which falls within the "description" of -- "instrument of settlement"; while Article 64 is in respect of -- "declaration of trust concerning any property when made in writing not being a Will."
13. Black's Law Dictionary gives meaning of the word "disposition" as, among others, -- "transferring to the care or possession of another; the parting with; alienation of, or giving up property". In Goli Eswariah's case, AIR 1970 SC 1722, the word "disposition" had to be construed in the context of definition of the term "transfer of property", occurring in Section 2(xxiv) of Gift Tax Act. Their Lordships held that it was not a term of law and it had no precise meaning; its meaning had to be gathered from the context in which it is used. In that case, however, it was held that the act of throwing self-acquired property by coparcener into common hotchpot was a unilateral act and that the coparcener did not enter into any transaction with his family by that act. In Narendra Singh Deo's case, AIR 1947 Allahabad 141, the Full Bench construed Section 2(24) and also Article 64 of the Stamp Act to hold that the document in question was "Trust" and not "Settlement". The Court held that the deed, read as a whole, could not be regarded as one executed for the purpose of distribution of the property, the general intention of the owner was that the property should remain in the hands of trustees for sometime and they should deal with it in the manner in which he would deal with it if he had not created the deed. In the Delhi case Banarasi Dass, (AIR 1968 SC 497) (supra), a contrary view was, however, expressed stating that the founder-trustee himself being the author of the Trust and on that account, even if no transfer of property was made by the deed in question, still, the deed could not be taken out of the purview of "settlement". Admittedly, however, on facts, in none of these cases, deed in question was executed by executant by custodian of properties of a Hindu deity, as in this case.
14. B.K. Mukherjea, in his Tagore Law Lectures (published as "Hindu Law of Religious and Charitable Trusts"), at p. 570 (Fourth Edition) describes "Incidents of family Debutter" and approves Privy Council's view that "it is more consonant with the genius and spirit of Hindu Law and usage that endowments of this kind should be made to a family by whose members in succession the worship might be performed than to an individual who might sell or give them to a stranger." He has approved of the decision in Bhuggobutty Prosonno Sen, (1897) ILR 25 Cal 112, that under Hindu Law, an idol is capable of being endowed his property without express words of gift to such idol in the shape of a trust or otherwise and the validity of dedication is not on that account impaired. The Calcutta view, however, is based on a decision of Bombay High court in Manohar Ganesh Tambekar, (1888) ILR 12 Bombay 247. Whether any person in possession of an idol's property was liable to render account was considered and it was held that those who are charged of such properties, whether cash, jewels or lands, were answerable as trustees even though they had not accepted consciously any trust.
15. Prof. J.D.M. Derrett, in his treatise, "Introduction to Modern Hindu Law" has summed up incidents of property of a Hindu idol and rights and duties of Manager of that property, in Chapter Nine, captioned "Religious Endowments". Property dedicated to an idol belongs to the idol in perpetuity and the idol, as juristic person, owns that property through its legal Manager for vindicating its right by suit, as and when occasion arises. The idol itself is the property of the deity, and is managed like idol's other property; where it is situated and in whose hands it remains are determined by the manager. All property owned by an idol is described as Debutter-property and even if the founder is the first manager, in law he ceases to be owner of that property though he can provide for succession to shebaitship. Although a shebait can renounce his office, he cannot alienate it. The shebait has a power unless expressly forbidden by the founder, to charge the property of the idol for the benefit of the idol's estate. In Bameswar Bamdev. AIR 1951 Cal 490, it is held that though shebaitship cannot be transferred by renunciation, acceleration of interest of persons next in succession can still be achieved. It is also held that the doctrine of benefit of the deities does not extend to transfer of the right of shebaitship.
16. In order to answer Question No. 1, the recitals in the document ("instrument") in question are to be carefully analysed, bearing in mind the settled law that the label attached is not conclusive of intention of parties. (See e.g. Shantabai, AIR 1958 SC 532), and also that the Court cannot rewrite the whole document (See C.I.T. v. Bhurangya Coal Co., AIR 1959 SC 254). It is sound canon of construction, judicially entrenched, that all parts of a document are to be read together; no portion can be read disjunctly or in isolation or omitted. (See in this connection, Angurbala Mullick, AIR 1951 SC 293; Peare Lal, AIR 1963 SC 1703; Haru Das Gupta, AIR 1972 SC 1293; Jaydayal Poddar, AIR 1974 SC 171).
17. Annexure B of the reference is the document in question described as "Trust Deed" and inscribed on a stamp paper of Rs. 100/- The executant is the petitioner, Sardar Deorao Krishnarao Jadhav, who signs the document as "Karta Khandan" (Karta, HUF). It was executed on 2-9-1975. The opening sentence reads -- Whereas Shri Khandoba Malhari Martand is executant's family deity and that for conduct of Pooja etc. and for management in that connection, he had executed on 7-10-1971 one Trust-Deed which he had registered with the Sub-Registrar, Gwalior, on 8-10-1971. etc. The remaining portion of para 1 may be briefly summed up. It is stated that some idols of gold and some other articles of gold and silver used in Pooja were in possession of the executant and that he had kept the same in the temple at his residential campus at Jai Vihar. For last few years, the locality in which his residence was situate had become dangerously, insecure. For reasons of security and safety of the valuable family idols of gold and other articles, he had, therefore, removed the same from the temple and had brought those into his residential quarters. Daily Pooja at the temple was offered to gold-plated replicas of the idols. On occasion of festivals, such as Mahalakshmi, Ganesh Chaturthi, Gokul Ashtami, Dus-sehra, Diwali, Champashashti etc., the real idols of gold were taken temporarily to the temple for Pooja in respect of which separate budget provision was made. After the Pooja, the same were brought back and kept with him at his residential quarter. In the Schedule, the details of the idols and other articles were given at the concluding portion of the document.
18. He stated in para 2 of the deed that being desirous of creating a "Trust" in respect of the idols and other articles aforesaid, of Shri Khandoba Maharaj Malhari Martand and other family deities, he had executed the trust-deed whereby he declared himself and others as trustees, in respect thereof and vested ownership thereof in the trustees. He had intended to create trust in respect of those things when trust deed dated 7-10-1971 was executed and that fact was known to all trustees. Material statements which make up the remaining part of the document may also be summed up briefly. Tn paras 3 to 9, it is stated that the object and purpose of the Trust created under the deed would be the same as contemplated under trust-deed dated 7-10-1971 and that the trustees would be the same persons as named in the said deed. In regard to appointment, resignation and discharge of their duties, all provisions of trust-deed dated 7-10-1971 would be applicable. In future, neither he nor any of his heirs would be able to claim any right, title or interest in the subject-matter of the trust except those that may be available to them in their capacity of trustees. It is not necessary to refer to the exhaustive details of the idols, their valuable ornaments and other paraphernalia, made of gold and silver of which some was studded with gems, except to state that those were valued at Rs.2,12,000/-.
19. Reading the deed as a whole, we find no scope to entertain any other view except that the executant, namely, the petitioner, in his capacity as Karta of the family, was executing a trust in respect of the properties of family deities of which he was shebait. Under Shastric Law his position was that of a trustee de hors the provisions of Indian Trust Act which made it necessary for him to execute as a measure of abundant caution, the earlier trust-deed dated 7-10-1971. Therefore, by the deed subsequently executed (Annexure B), he supplemented merely the provisions of the earlier deed in order to fulfil a particular purpose of legal trusteeship created under the earlier deed which was already subsisting on that date. He continued evidently to function as shebait, but made arrangement under the instrument (Annexure B) for proper custody of idols made of gold and other valuable properties of the family deities. By doing so, he was merely making proper provision in respect of discharge of duties of his office as shebait even if he had constituted other persons as co-trustees in respect of the properties of the family deities. Obviously, that was done to ensure that all custodians would become answerable for discharge of their duties in terms of the provisions of the Trust Act and the two trust-deeds executed by the petitioner. Section 1 of the Indian Trust Act, 1882, expressly excluded in terms applicability of the Act to, among others, "public or private religious or charitable endowments". We have examined the position in Hindu Law and we have found that the shebait is empowered, in managing property of the deity, to decide in whose hands the idols or other properties of deities remain. We do not think if there is any "disposition" in terms of Section 2(24) of the Act under Annexure B of any of the properties of the deities. We do not think if reference in para 2 of vesting of "ownership" of the properties in the custodians of the subject-matter of the trust could be a disposition because they were required to function as trustees in respect of the scheduled properties and because also of the fact that under Hindu Law, the family deities continued to remain owners of those properties notwithstanding that statement. Even if the shebaitship could be treated as a "property" and there could be disposition thereof by renunciation, that was not contemplated under the document in question. By executing Annexure B and by describing that instrument as a "Trust-Deed", the petitioner intended to change the nature and character merely of his possession as shebait of the properties of family deities with the object of giving up his exclusive right to the custody thereof and sharing that right with the co-trustees.
20. For the reasons aforesaid, we have no hesitation to answer question No. 1 in the affirmative. We hold that by the instrument (Annexure B), the executant merely purported to make proper provision in respect of discharge of duties of his office of shebait of family deities and he had declared a trust in respect of properties described in the schedule of the document making himself and other co-trustees in respect thereof. The object of the trust declared under Annexure B was in respect of custody of the properties of the family deities of the petitioner.
21. For the reasons aforesaid, we also answer in the affirmative question No. 2. We hold that the instrument Annexure B of the Reference is liable to be stamped in accordance with provisions of Article 64, Schedule I, Indian Stamp Act.
22. The view we have taken also leads us to the conclusion that question No. 3 has to be, and is, accordingly answered in the negative. About Delhi decision, Banarasi Dass, (AIR 1968 SC 497) (supra), suffice to say this much that there is no reference at all of any manner to the contents of the instrument in question in respect of which the Court took the view in that case that a "disposition" was contem plated thereunder and, therefore, that was liable to be stamped with the duty chargeable under Article 64. With utmost respect, we would like to observe that law does not operate in vacuum and, as earlier ob-.served, the Authority entrusted with the function of determining the stamp duty payable in respect of any instrument is required to read and examine the document carefully to identify it properly in terms of the statutory "description" contemplated under the Act. It is true, Section 2(24) includes a case of "disposition" made for, among others, "any religious or charitable purpose" and it is also true that the disposition, even if made "by way of declaration of trust or otherwise" is covered by Section 2(24). What is obvious is contemplated of transfer of some substantial right or beneficial interest under the instrument in favour of some body by the disposition of the property mentioned in the instrument resulting in pecuniary loss to the executant and/or pecuniary gain to somebody because of payment of ad valorem duty under Article 58. If that view is not taken, the validity of Article 58 may be in jeopardy lacking reasonable nexus. The intention of the executant in the instant case is clear and unambiguous in that regard. He intends to lose nothing in terms of pecuniary benefit and the co-trustees gain nothing on being saddled with the responsibility of co-custodians of the properties of the deity. The essence of the document is not "disposition", but "custody" of the properties described in the Schedule of the instrument.
23. Before parting with the records, we would like to observe that our attention was drawn also to Article 7 of Schedule I. The entry is -- "Appointment in execution of a power, whether of trustees or of property, movable or immovable, where made by any writing not being a will". However, consideration of that provision would evidently be by and the scope (sic) of this reference as that would be a "new question" and law forbids us to undertake that venture. At no stage, before Revenue authorities below, applicability of Article 7 was in issue. It was question only of applicability either of Article 58 or of Article 64. Kusumben's case (AIR 1960 SC 907) (supra) reminds us of our limitation in that regard.
24. The Reference is disposed of in terms of answers to the three questions framed in para 11 and the case referred is decided accordingly. We direct the Registry to send a copy of the judgment under seal of the Court to the Board of Revenue for disposing of the Revision petition, Annexure A of the Reference, in accordance with the opinion expressed by us.