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"23. Conveyance (as defined by Section 2(10)) where the amount or value of the consideration for such conveyance as set forth therein ....."

So conveyance is chargeable with duty which is to be assessed on the basis of the consideration as set forth in the document. This article came up for consideration before various High Courts on a number of occasions. In Rama Chetty v Mohamed Ghouse, (1889) ILR 16 Cal 432. the Calcutta High Court held that in determining whether a document is sufficiently stamped for the purpose of deciding upon its admissibilily in evidence, the document itself as it stands, and not any collateral circumstances which may be shown in evidence must be looked at. In Sakharam Shankar v. Ramchandra Babu Mohire, (1903) ILR 27 Bom 279, if was held that in determining the question whether a particular document is sufficiently stamped, the Court should look at the instrument as it stands. A Full Bench of the Allahabad High Court in the matter of Muhammed Muzaffar Ali, ILR 44 All 339: (AIR 1922 All 82 (2)) held that if in a deed of gift the value of the property dealt with is not set forth, the deed does not require any stamp, and it is not within the competence of the Collector to have the said property valued in order to assess the duty payable. If however the value of the property is intentionally omitted with a view to defraud the revenue, then prosecution will lie under Section 64 of the Stamp Act. The Division Bench of the Patna High Court in Sitaram Kamalia v. State of Bihar , held that the Collector had no power under Section 40 of the Stamp Act to embark upon, an inquiry with regard to the market value of the properties covered by the document and require the payment of further stamp duty in accordance with his finding as to valuation.

11. However, as observed by the Supreme Court in Himalaya House Co. Ltd. v. The Chief Controlling Revenue Authority , a failure to comply with the requirements of Section 27, is merely punishable under Section 64 of the Stamp Act The Supreme Court pointed out that no provision in the Stamp Act empowered the Revenue to make an independent inquiry of the value of the property conveyed for determining the duty chargeable.

12. Now Article 23 of the Indian Stamp Act, which is reproduced above is the article that governs the charging of the stamp duty on a conveyance. Under Article 33, the gift deed was chargeable with the stamp duty on the same basis as a conveyance. It may be mentioned that Article 34 in Schedule No. 1 of the Bombay Stamp Act, 1958 deals with the stamp duty chargeable on a gift deed. That article provides that the stamp duty payable on a gift deed is the same duty as is leviable on a conveyance under Clause (a) or (b), as the case may be, of Article 25 for a consideration equal to the value of the property which is the subject-matter of the suit. Obviously the present case is not governed by the provisions in this article, namely Article 34 of the Bombay Stamp Act, which came into force on 16-2-1959. Article 33 in Schedule 1 of the Indian Stamp Act, 1899 which was the article applicable to this case, the document having been registered on 14-6-1952, did not speak of the value of the property. On the contrary it contemplated the amount or value of the consideration as set forth in the document. The defendant Sub-Registrar, therefore, was not under a legal obligation or duty to refuse to register the gift deed on the ground that no stamp duty was paid on the basis of the market value of the property. What was required to be taken into account was what was the consideration as set forth in the document. Even otherwise, as observed by the Supreme Court, in the case of Himalaya House Co. (supra) the Legislature may have for good reasons not empowered the Revenue to make an independent enquiry as regards the valuation of the property sought to be assigned.

13. The legal position that therefore emerge is that both the Indian Stamp Act, 1899, or Bombay Stamp Act, 1958, under Article No. 25 thereof, the stamp duty payable on a conveyance is to be assessed on the basis of the amount or value of the consideration for such conveyance as set forth therein. The gift deed under Article No. 33, in Schedule No. 1 to the Indian Stamp Act is chargeable with the same duty as a conveyance for a consideration equal to the value of the property as set forth in such document. The legislature has hot empowered the revenue to make an independent enquiry as regards the valuation of the property sought to be assigned. If however the consideration (if any) and all other facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duly with which it is chargeable are not fully and truly set forth therein the omission or default will be punishable under Section 64 o the Indian Stamp Act and under Section 62 of the Bombay Stamp Act.

The expression "duly stamped'' used in the said section would obviously mean so far as the conveyance or the gift deed is concerned, as the law stood at the time when the gift deed in the instant case was executed, stamped with the duty assessed on the basis of the valuation or the amount set forth in the document. No provision in the Indian Stamp Act or the Bombay Stamp Act empowering the Sub-Registrar to make enquiry into the market value of the property and to refuse to register the document unless a document was stamped on the basis of the market value has been pointed out to me. Therefore, it will have to be held that there was no legal obligation or duty on the part of the Sub-Registrar to make enquiry regarding the market value of the property and to refuse to register the document on the ground that it was not stamped on the basis of the market value. No doubt, if the gift deed is not stamped with duty on the basis of the market value after coming into force of the Bombay Stamp Act, 1958, and the value of the property is not correctly set forth in the document, the persons concerned would render themselves liable for being dealt with under Section 62 of the Bombay Stamp Act. This appeal, therefore, must be allowed on the short ground that the defendant Sub-Registrar was under no legal obligation or duty to make enquiries regarding the market value of the properly. In the view, I have taken it is not necessary to record my findings on the other issues.