Indian Kanoon - Search engine for Indian Law

7. As we read the letter dated 18-2-1980 it amounted to no more than authorising the foreman to pay himself out of the money deposited with him, the amounts due from the subscriber by way of future subscriptions in the Kuri, in case payments were defaulted. The money was not moveable property, nor was there any transfer of any interest therein, in favour of the foreman. It was, on the authorities cited, not a mortgage deed.

8. The matter can be looked at from another angle also. Stamp duty chargeable under Articles 37 and 50 of the Schedule depends upon the amount secured by the mortgage deed. If the deed does not specify the amount, can it be said that there is a deed attracting the provisions of the two Articles? A person who executes such a document may be prosecuted undera Sec. 60 or Section 63 of the Act, but has the Collector power under the Act to ascertain the amount secured, with a view to bring it to tax? In the absence of specific power under the statute can he do what, under the statute, the parties themselves must do? In the matter of Muhammed Mazaffar Ali (1922) ILR 44 All 339 : (AIR 1922 All 82 (2)) (FB) the "executant of a gift deed had not set forth the value of the property in the deed, and the Court held that such an instrument was not chargeable to duty. The court said :--

"According to Article 33 of the Schedule an instrument of gift, such as the one before us, should be stamped with the same duty as a conveyance, for a consideration equal to the value of the property set forth in such instrument. We are satisfied that the words "as set forth in such instrument" refer back to the word "value", and not to the word "property." We are confirmed in this view by the authority quoted in the reference before us, reported in (1885) ILR 8 Mad 453 (FB). In the present instance there is no "value" set forth in the said instrument. No doubt this is a contravention of section 27 of the Indian Stamp Act, and, if it be found that the omission to state the value of the property conveyed was done with intent to defraud the Government, a prosecution will lie against the person who executed the instrument, under section 64 of the Indian Stamp Act. The case seems to us strictly analogous to one which would arise if the executant of a deed of gift chose to set a purely nominal value on the property conveyed and to stamp the instrument accordingly. For the purposes of the Stamp Law the valuation given in the instrument would have to be accepted. If there was an intentional undervaluation, then a prosecution would protect the Government against the attempted fraud There is no provision in the law authorising the Collector to do what he has done in the present instance, namely, to ascertain the value of the property with a view to causing the instrument to be stamped with reference to the value thus ascertained."