Stamp Act
(II of 1899)
S.1(2)—An. advocate
enrolled in Calcutta High court before the 15th August, 1947, seeking enrolment
in East Bengal High Court, is not liable to pay stamp duty under Stamp Act.
Ref No.1 of 1951 under Arc. 30, Stamp Act Bar Association, Dhaka
high Court Vs. Chairman, Bar Council, Dhaka (1951)3 DLR 134.
S. 2(5)(b)—The document
referred to above comes within the definition of bond as laid down in section
2(5)(b) of the Stamp Act.
A.
promissory note written on a hundi paper and attested but not made payable to
the bearer or to cider is a bond falling within the purview of s. 2(5) (b)of
the Act.
In the
instant case, the document is attested by witnesses and although there is an
obligation to pay a sum of money, it is not payable to bearer or to order, Thus
the document is a bond within the meaning of section 2(5)(b) of the Act.
Md. Azizur
Rahman Vs. Mustafizur Rahman, (1969) 21 DLR 119.
S.2(10)—If a vendor
can convey a property without an instrument of sale-deed, he can do it and an
escape payment of stamp duty.
Enayet Hossain Chowdhury Vs. Member, Board of Revenue (1960) 12
DLR 466.
—A deed
weather was a deed of sale or mere contract of sale—Opinion of the Special
Bench differed; the majority view, on the contents of the documents, held ii
was a deed of sale and imposition of penalty by the Collector was justified,
while Chowdhury, 3. held the view that the deed was a mere contract of sale and
not a deed of sale.
Enayet
Hossain Chowdhury Vs. Member, Board of Revenue. (1960) 12 DLR 466.
(The Supreme
Court subsequently upheld the view of Chowdhury, J.)
S. 2(11)—”Duly
stamped”—Explained S. 11 (c): Transfer of company’s share by endorsement.
The words
‘duly stamped’ in s. 2(11) of the Stamp Act mean that the instrument bears an
adhesive or impressed stamp of not less than the proper amount and that such
stamp has been affixed or used in accordance with the law for the time being in
force. The law for the time being in force contemplates under section 11(e)
that transfers by endorsement of shares in any company may be stamped with
adhesive stamps.
Sudhangshu
Shekhar Vs. Anath Bandhu (1976) 28 DLR 314.
Ss. 2(14)
and 3—
An award by an arbitrator is like a decree of the Court—Such an award is not an
instrument within the meaning of section 3 of the Act.
Province of East Pak. Vs. Najibur Rahman (1966) 18 DLR 588.
S.2(22)—In order to
determine whether an instrument is a promissory note it must be seen whether
substantially ‘it only contains a promise to pay a defined sum of money and
nothing more.
Benoy Bhusan
Saha Vs. Md. Abdus Samad (1954) 6 DLR 50.
S.3—Where a
deed clearly purports to be an agreement to sell and purchase at a future date,
the purchase was to be completed and a deed executed. Whether a deed was
subsequently executed or not is irrelevant. If a deed purports to be an
agreement of sale and law recognizes a distinction between such an agreement
and an actual sale, the document should be stamped an agreement and not as a
conveyance.
Geofrey
Mrnners & Co. Bombay Vs. Geofrey Maimers & Co. Pakistan (1953)5 DLR
(WP) 134.
—Section 3
of the Stamp Act makes only “instruments” liable to duty and not “transactions.”
Geofrey
Manners & Co. Bombay Vs. Geofrey Manners & Co. Pakistan (1953)5 DLR
(WP) 134.
—An
affidavit sworn in relation to the grant of succession certificate and filed in
Court does n& require to be stamped as it was for “immediate” use within
the meaning of exemption (b) in Art. 4 of Schedule I of the Stamp Act of 1899.
The word “immediate” refers to purpose and not to time.
Begum Zebeda
Khatun (1955) 7DLR (WP) 102.
Proviso:
Proviso does not exclude an award made in favour of the Government.
The word “execute”
in the proviso to section 3 of the Stamp Act is used when documents of transfer
are drawn up inter-parties. An award is not executed nor can a decree be said
to be executed by the Court. An award is made and signed by the Arbitrator just
as a decree is made and signed by the Court. Therefore, the proviso to section
3 of the Act dock not except the award made in favour of the Government.
Province of
East Pak. Vs. Najibur Rahman (1966) 18 DLR 588.
—Unless due
stamp has been paid on it, an award cannot be taken into consideration by
Court.
Province of
East Pak. Vs. Najibur Rahman (1966) 18 DLR 588.
Ss. 3 and
2(14)—
An award by an arbitrator is like a decree of the Court—Such an award is not an
instrument within the meaning of section 3 of the Act.
Province of
East Pak. Vs. Najibur Rahman (1966) 18 DLR 588.
S.10— Instrument
with an un-cancelled stamp admitted in evidence—This does not render it invalid
but is to be impounded.
Sudhangshu
Shekhar Vs. Anath Bandhu (1976) 28 DLR 314.
—Stamps not
cancelled before filing is no ground to reject the instrument.
Anath Bandhu
Guha Vs. Sudhansu Sekhar Dey (1979) 31 DLR (AD)-312
Ss. 11(e)
& 12—Transfer-scripts
though duly stamped but the stamps were not cancelled. Transfer- scripts cannot
be treated invalid for that reason and the stamps can be cancelled at any
moment under Courts’ order.
Sirajuddin A
Kader Vs. Chittaranjan Cotton Mills Ltd. (1968) 20 DLR 196.
S. 11(e)— Transfer of
company’s share by endorsement.
The words
‘duly stamped’ in s. 2 (11) of the Stamp Act mean that the instrument bears an
adhesive or impressed stamp of not less than the proper amount and that such
stamp has been affixed or used in accordance with the law for the Lime being in
force. The law for the time being in force contemplates under section 11(e)
that transfers by endorsement of shares in any company may be stamped with
adhesive stamps.
Sudhangshu
Shekhar Vs. Anath Bandhu (1976) 28 DLR 314.
S.12—Cancellation
of a stamp is a question of fact. Object of cancellation is to prevent its use
over again.
Cancellation
of the adhesive stamps should be in a manner that it cannot be used again. The
adhesive stamps affixed in the impugned deed have writing on it ‘cancelled’ on
each of the stamps. It is contended that it does not fulfill the requirement as
indicated in section 13(3) of the Stamp Act.
The question
arises as to whether the effective cancellation of the stamps contemplated in
section 12 of the Stamp Act is a question of fact. The object of effectively
canceling stamps is to make it unfit for further use in the ordinary course of
business. The effectiveness of cancellation has to be determined by reference
to the question whether if it be removed from the document it could be used
again. This question must obviously be considered with reference to facts of
each particular case.
The words
“so that it cannot be used again’ occurring in sub-clause (l)(a) of section 12
of the Stamp Act means merely such cancellation as will prevent the stamp being
lawfully or conscientiously used again.
Now that the
document has been produced before the authority as an evidence of transfer and
if the authority finds that the stamps do not show that these were used before
and act upon it, the party gets the desired object. But if thereafter the stamp
is stolen and used by any other person then it would only bring that person
within the mischief of sub-clause (3) of section 12 the Stamp Act.
Jabed Ali
Vs. Dr. Sultan Ahmed (1975) 27 DLR (SC) 78.
—Mode of
cancellation of a stamp is a question of fact.
The mode of
cancellation is a question of fact and since this has been decided by the
Courts below, we find no substance in the contention of the learned Counsel.
Jabed Ali
Vs. Dr. Sultan Ahmed (1975) 27 DLR (SC) 78.
—Fixed
adhesive stamps, not cancelled—effect.
Section 12
of the Stamp Act provides that whoever affixed any adhesive stamp shall cancel
the same so that it cannot be used again; any instrument bearing an adhesive
stamp which has not been cancelled, shall be decided to be unstamped.
Sudhangshu
Shekhar Vs. Anath Bandhu (1976) 28 DLR 314.
S.13—Cancellation
of a stamp is a question of fact. Object of cancellation is to prevent its use
over again.
Cancellation
of the adhesive stamps should be in a manner that it cannot be used again. The
adhesive stamps affixed in the impugned deed have a writing on it ‘cancelled’
on each of the stamp. It is contended that it does not fulfill the requirement
as indicated in section 13(3) of the Stamp Act.
Jabed Ali
Vs. Dr. Sultan Ahmed (1975) 27 DLR (SC) 78.
S.17, Art
40(b)—Agreement
to sell property—Earnest money to be treated as charge on property in case of
non-performance of contract— Agreement does not become mortgage deed.
Where there
is an agreement to sell the property in dispute on certain terms and conditions.
In the document itself it is stated that as long as the contract is not
performed, the amount advanced as earnest-money will be treated as charge on
the property agreed to be sold. Even if this stipulation had not been made in
the document, any amount paid in advance Cowards the agreement of sale is a
charge under section 55, sub-section 6(b) of the Transfer of Property Act.
By
incorporating such a term, an agreement of sale cannot be considered to be an
instrument whereby, for the purposes of securing money advanced or to be
advanced by way of loan or an existing or future debt, or the performance of an
engagement, one person transfers, or creates, to, or in favour of another a
right over or in respect of specified property. The document did not require to
be stamped as a mortgage deed.
Moosa Vs.
Mohd. Yakoob, PLD 1966 (WP) Karachi 376 (DB).
S.18—Foreign
document not stamped according to section 18 is a document not “duly stamped”
and may be admitted in evidence on payment of stamp and penalty in terms of
section 35.
Punjab
National Bank Vs. M/s. Dewan & Co. (1955) 7 DLR (WP) 65.
S.18(2)—Foreign
document should be presented 10 Collector within 3 months of receipt in
Pakistan for being stamped—Document presented afterwards should be impounded.
Punjab
National Bank Vs. M/s. Dewan & Co. (1955) 7 DLR (WP) 65.
Ss. 25 &
49-—Acknowledgement by a fresh writing on the original document of debt (which
document has been duly stamped) does not require to be stamped.
The
contention raised was since the letter (under consideration) amounts to an
agreement for payment of the debt it was a fresh contract and therefore it is
required to be stamped under section 49 of the Stamp Act and as in this case it
was not stamped it was not admissible in evidence under Section 25 of the Stamp
Act.
Held: So far as
the original debt is concerned it was executed on duly stamped promissory note.
Therefore the stamp duty required to be paid for the original debt has been
paid. No fresh transaction was created by what has been written in the said
letter. The letter is merely a promise to pay original debt.
It is only
in the case of a fresh transaction that further stamp duly is called for.
Tripura Modern Bank Ltd Vs. Elahi Baksha (196) 18 DLR 498.
Ss. 27, 64—Award—Omission
to mention amount with regard to which award was given— Award not
stamped—Liable to penalty under s. 64.
Where in an
award given by a Superintending Engineer, the finding was that nothing was due
to the contractor from Government, but the written award did not set out the
amount of the claim to which the award was related.
Held: that the
omission was a contravention of s.27 of the Stamp Act (II of 1899) and was
liable to a penalty under s.64 of the Act if the intention was to defraud the
Government.
The question
whether any proceeding should be taken against the arbitrator was left for
consideration to the Collector who was the authority to initiate proceedings
under s.70.
Pakistan Contractors Co. Vs. Pakistan PLD 1958 (WP) Kar. 648.
S.
29—Section 29 will only be applicable to a case where the document is not
produced before the court. When the document is produced before the Court and
tendered in evidence the stamp duty is to be recovered under s.44. 1937
(Mad) 763 :174 (IC) 20.
S. 30—When a
creditor receives money exceeding Rs.20 or any movable property of the like
value in satisfaction of debt it is obligatory on him to give a duly stamped
receipt. Where immovable property valued more than Rs. 20 is delivered in
satisfaction of debt no receipt need be given. 1932 Nag. 172 :140 (IC) 397.
Ss.31, 32—Limitation
for applying to Collector for adjudication as to proper stamp duty—No period
prescribed—Procedure applicable where document is brought to collector within
or after one month of its execution.
It cannot be
said that ss. 31 and 32 contained in Chapter 111 Form 1 integrated procedure
for adjudication as to stamps and that the limit referred to in provision (a)
to s.32 governs applications made under s.31. Section 31 provides no time limit
for an application to the Collector for adjudication as to the proper stamp
duty payable in respect of an instrument. There is nothing in the section to
prevent a person from resorting to the Collector for adjudication as to proper
stamp duty even after the expiry of one month from the date of its execution.
If the instrument is brought to the Collector within one month of its
execution, the applicant would be entitled to have the Collector’s certificate
endorsed on the instrument on payment of the deficit duty. if any, but without
having to pay any penalty. But if he seeks the Collector’s adjudication beyond
the time specified in s.32, the Collector has, under s.33, to impound the
instrument and proceed under s.40 to decide whether the instrument is duly
stamped and to require the payment of the additional duty chargeable in respect
of the instrument together with the prescribed penalty in case he is of opinion
that it is not duly stamped. On payment of such duty and penalty a certificate
that the proper duty and penalty have been paid has to be endorsed under s.42
on the instrument which becomes thereupon admissible in evidence and may be
acted upon as if it had been duly stamped.
Sethuraman
Vs. Rama Nathan AIR 1946 (Mad) 437.
S.32—The decision
of the Collector is final if he has granted a certificate on the document. It
is not open to the Civil Court to question the endorsement. 2942 (Mad) 381 :202
(IC) 77.
Ss.33, 38(2)—Improperly stamped document produced before Civil Judge—Procedure
to be adopted—Civil Judge has no jurisdiction to impose a penalty.
Under
section 33, Stamp Act, 1899, a Civil Judge had authority to impound the
document if he was of the opinion (as he was) that it was not sufficiently
stamped. He could admit the document in evidence if eleven times the stamp duty
was paid. If the document was not admitted in evidence, then section 38(2) was
applicable and the document was to be sent to the Collector. Under section
38(2) he could only send the document to the Collector and he had no power to
impose a penalty.
Ghulam Farid
Vs. Board of Revenue, W. Pakistan PLD 1960 (WP) (Lah) 211—PLR 1960(2) WP 581
(OB)
S.34—A company
shall not register a transfer unless the instrument of transfer is duly
stamped.
Sudhangshu
Shekhar Vs. Anath Bandhu (1976) 28 DLR 314.
S. 35— [Sec under
Art. 5 in case of Kutubuddin Ahmed Vs. Al Firidwan Iiddin in 14 DLR 129 below]
S. 35 and
Art. 45—In
the instant case the final decree was passed on 30.11.54 but the decree was
drawn and signed on 22.5.65. The decree could not be drawn and signed earlier
as the required stamp- paper was not put in. A decree in a partition suit is an
instrument of partition which is chargeable with stamp duty under Article 45 of
the Stamp Act. 1899, and unless it is duly stamped the decree is not a4missible
in evidence as provided in section 35 of the Stamp Act.
AminullahBhuiyan
Vs. Abdul Hafiz (1981)33 DLR (AD) 282.
S.35—Foreign
document not stamped according to section 18 is a document not “duly stamped”
and may be admitted in evidence on payment of stamp and penalty in terms of
section 35.
Punjab National
Bank Vs. M/s. Dewan & Co. (1955) 7 DLR (WP) 65.
Penalty—Court’s power to impose
The
petitioner, a defendant in a civil suit, produced a document purporting to be a
receipt. The Civil Judge trying the suit being of the opinion that it was a
conveyance directed him to pay the deficiency in stamp and penalty equal to ten
times the deficiency. He sent a robkar for recovery of the amount to the
Collector who acting on the robkar proceeded to recover the amount.
Held: The Civil
Judge had no power to impose the penalty. Under s.35 of the Stamp Act he could
allow the document to be admitted in evidence on payment of the stamp duty and
ten times thereof as penalty but it was optioned for the party producing the
document not to pay or to pay in order to get the document admitted in
evidence. If eleven times the stamp duty was not paid, the only function left
with the Court was to send the document to the Collector who was then bound
under section 40 to determine whether the instrument was properly stamped and
if he found that it was not so stamped to pass an order requiring payment of
the duty and the penalty. PLR (1960)2 WP 581.
Partition,
instrument of—unstamped
“Unstamped
memoranda of a partition which require to be stamped as constituting an
instrument of partition cannot be admitted in evidence even for any purpose.”
Aminullah
Bhuiyan Vs. Abdul Hafiz (1981)33 DLR (AD) 282.
Ss. 35,
36—Instruments which have not been duly stamped but was admitted in evidence
can be acted on under section 36.
Section 35
of the Stamp Act prohibits a Court from admitting in evidence any instrument
which in its view is not duly stamped. This section also prohibits the Court
from acting on such document. If the Court, however, wrongly admits such a
document, the Appellate Court is prevented by section 36 of the Stamp Act from
calling in question the admission in evidence of such an instrument, thought it
may have been wrongly admitted.
A failure to
comply with the Stamp Act may entail penalty. But the whole proceeding should
not be vitiated and thrown away for want of stamp.
Amin Jute Balinyy
Co. Vs. Aminpur Union Cooperative (1960) 12 DLR 590.
Instruments
not duly stamped admissible in evidence—
It was
contended in the Appellate Court on behalf of the defendant appellant that the
hand-note, which was chargeable with a stamp duty of 4 annas, was stamped with
a stamp duty of 2 annas only and hence was not admissible in evidence in view
of the provisions of section 35 of the Stamp Act.
Held: Section 36
of the Stamp Act makes it reasonably clear that the instrument having once been
admitted in evidence is not to be called in question at any stage of the same
suit.
Under
section 36, it matters little, whether it was wrongly admitted or rightly
admitted or admitted without objection or after hearing or without hearing such
objection.
There is no
warrant for introducing the limitation that the words “admitted in evidence” as
qualifying the plain language of section 36 of the Stamp Act. The words
“admitted in evidence” cannot mean admitted in evidence as a result of the
judicial determination of the question whether it can be admitted in evidence
or not for want of stamp.
Abdul Hashem
Vs. Serajul Haque (1961)13 DLR 16.
S
.35(a)—Penalty, amount of.
Penalty
payable is ten times of the duty in accordance with the provisions of clause
(a) of the proviso to section 35 of the Stamp Act The Court has no discretion
in the matter.
Md. Azizur
Rahman Vs. Mustafizur Rahman, (1969) 21 DLR 119.
S.36—Document
admitted in evidence, if can be rejected.
The
provision of section 36 of the Stamp Act is mandatory which provides that
except for reason laid down in section 61 of the Act once a document is
admitted in evidence it is not permissible for the Court to reject its evidence
on the ground that it has not been duly stamped.
Benoy Bhusan
Saha Vs. Md. Abdul Samad (1954) 6 DLR 50.
“Admitted in
evidence”—means—
The
expression “admitted in evidence” in section 36 means the act of letting the
document in as part of the evidence a result of judicial determination of the
question whether it can be admitted in evidence.
Benoy Bhusan
Saha Vs. Md. Abdul Samad (1954) 6 DLR 50.
—Document
admitted cannot be questioned afterwards on the ground of stamp.
Punjab
National Bank Vs. M/s. Dewan & Co. (1955) 7DLR (WPC) 65.
Ss. 38(2), 33—improperly stamped document produced before Civil Judge—Procedure
to be adopted—Civil Judge has no jurisdiction to impose a penalty.
Under
Section 33, Stamp Act, 1899, a Civil Judge had authority to impound the
document if he was of the opinion (as he was) that it was not sufficiently
stamped. He could admit the document in evidence if eleven times the stamp duty
was paid. If the document was not admitted in evidence, then section 38(2) was
applicable and the document was to be sent to the Collector. Under section
38(2) he could only send the document to the Collector and he had no power to
impose a penalty.
Ghulam Farid
Vs. Board of Revenue, W. Pakistan PLD 1960 (WP) (Lah) 211—PLR 1960(2) WI 581
(DB).
S. 40—Civil
Judge imposing penalty—Collector refusing to follow section 40. Revision
petition to the Board of Revenue whether to be made through Commissioner.
The
petitioner, a defendant in a civil suit, produced a document purporting to be a
receipt. The Civil Judge trying the suit being of the opinion that it was
conveyance directed him to pay the deficiency in stamp and penalty equal to Len
times the deficiency. He sent a robkar for recovery of the amount to the
Collector who, acting on the robkar, proceeded to recover the amount. The
petitioner applied to the Collector for withdrawal of the proceedings
contending that the Civil Judge had no power to impose the penalty, that the
Collector should follow the procedure under section 40, Stamp Act and that under
section 29, it was not the petitioner but the executants of the document who
was liable for stamp duty. The Collector rejected the application. The
petitioner applied to the Board of Revenue, the Chief Controlling Revenue
Authority under section 56. The Board of Revenue rejected the application on
the ground that according to the Government instruction contained in paragraph
43 of the Stamp Manual the application should come through the Divisional
Commissioner with his comments. The petitioner applied to the Court for
interference in writ jurisdiction.
Held: The Civil
Judge had no power to impose the penalty. Under s. 35, tie could allow the
document to be admitted in evidence on payment of the stamp duty and ten times
thereof as penalty but it was optional for the party producing the document not
to pay or to pay in order to get the document admitted in evidence If eleven
times the tamp duty was not paid, the only function left with the Court was to
send the document to the Collector who was then bound under section 40 to
determine whether the instrument was properly stamped and if he found that it
was not so stamped to pass an order requiring payment of the duty and the
penalty.
Held further (a) that it
was not open to the Chief Controlling Revenue Authority to give directions as
to the manner in which petitions for revision were to be presented to it;
(b) that the
law had given no authority to the Commissioner to influence the views of the
Chief Controlling Revenue Authority and this could not be provided for by
administrative instructions of the Government contained in paragraph 43 of the
Stamp Manual.
(c) That the
Chief Controlling Revenue Authority could not refuse to exercise its
jurisdiction under section 56 though, after considering a case, it could pass
such orders as it thought fit. 2 PLR (1960) (WP)581.
Ss. 49 &
25—Acknowledgement by a fresh writing on the original document of debt (which
document has been duly stamped) does not require to be stamped.
The
contention raised was since the letter (under consideration) amounts to an
agreement for payment of the debt it was afresh contract and therefore it is
required to be stamped under section 49 of the Stamp Act and as in this case it
was riot stamped it was not admissible in evidence under section 25 the Stamp
Act.
Held: So far
as the original debt is concerned it was executed on duly stamped promissory
note. Therefore the stamp duty required to be paid for the original debt has
been paid. No fresh transaction was created by what has been written in, the
said letter. The letter is merely a promise to pay the original debt. It is
only in the case of a fresh transaction that further stamp duty is called for.
Tripura
Modern Bank Lid. Vs. Elahi Baksha (1966) 18 DLR 498.
Ss. 57,59—An opinion expressed by a Bench of the High Court under section 9
of the Stamp Act on a reference under section 57 of the Act was in nature
advisory and could not he subject-matter of an appeal to the Supreme Court. PLR
(1960) 2 WP 467.
S. 61—Document admitted in evidence, if can by
rejected.
The
provision of section 36 of the Stamp Act is mandatory which provides that
except for reason laid down in section 61 of the Act once a document is
admitted in evidence it is not permissible to Court to reject its evidence on
the ground that it has not been duly stamped.
Benoy Bhusan
Saha Vs. Md. Abdul Samad (1954) 6 DLR 50.
S. 61(2)—Document not
bearing the required stamp—Directed to be impounded under section 61 (2) and
ordered to pay penalty at 10 times the amount of stamp duty.
Al-Hajj Kutubuddin Vs. AJ Hridwan Uddin (1962) 14 DLR 129.
Ss. 64, 27—.-Award-—Admission
to mention amount with regard to which award was given— Award not
stamped—Liable to penalty under s.64.
Where in an
award given by a Superintendirig Engineer, the finding was that nothing was due
to the contractor from Government, but the written award did not set out the
amount of the claim to which the award was related.
Held: that die
omission was a contravention of s.27 of the Stamp Act (II of 1899) and was
liable to a penalty under s.64 of the Act if the intention was to defraud the
Government.
The question
whether any proceeding should be taken against the arbitrator was left for
consideration by the Collector who was the authority to initiate proceedings
under s.70.
Pakistan Contractors Co. Vs. Pakistan PLD 1958 (WP) Kar. 648.
Articles
Art.4—An affidavit
sworn in relation to the grant of succession certificate and filed in Court
does not require to be stamped as it was for ‘immediate use within the meaning
of exemption (b) in Article 4 of Schedule I of the Stamp Act. The word
“immediate” refers to purpose and not to time. Begum Zubeda Khatun (1955) 7 DLR (WP) 102.
Art.5—Stamp duty
on lease which operates as a lease in praesenti and not a mere agreement to
lease.
Stamp duty
on lease, including an under-lease or sub-lease and any agreement to let or
sub-let is payable under Article 35 of Schedule IA to the Stamp Act as in force
in East Pakistan. But an agreement to let or sub-let which does not operate as
a lease in praesenti falls under Article 5 for the purpose of stamp duty.
Al-Haji Kutubuddin Vs. AJ Hridwan Uddin (1962)14 DLR 129.
Art.23—The stamp
duty required to be paid on the deed of gift is the same as on a conveyance
which is provided or by item 23 of the Schedule I of the Stamp Act.
Nabadwip Ch.
Karmakar Vs. Madhu Sudan Kurmakar (1955) 7 DLR 235.
Art.30—The
expression “Any High Court” occurring in Article 30 of Schedule I to the Stamp
Act will mean any High Court in British India, if the reference is to the point
of time before the 15th August, 1947, and to a High Court in Pakistan if the
reference is toy time after the appointed day.
The word
“entry” so far as Pakistan is concerned will relate to all entries present or
future, on and from the 15th August 1947. The expression ‘previously been
enrolled in High Court’ includes and extends to enrolment made in a High Court
in British India before the 15th August 1947.
The previous
enrolment (i.e. enrolment before the appointed day) in any of the High Courts
in British India would entitle an Advocate, who seeks subsequent entry on the
roll of the High Court of East Bengal, to exemption from payment of stamp duty
under Article 30 of the Stamp Act; but an Advocate enrolled in any Indian High
Court after the appointed day is not so exempted. Refer. No.1 of 1951 under Article 30, Stamp Act. (1951) 3 DLR 133.
Art. 35—Stamp duty
on lease which operates as a lease in praesenti and not a mere agreement to
lease.
Stamp duty
on lease, including an under-lease or sub-lease and any agreement to let or
sub-let, is payable under Article 35 of Schedule IA to the Stamp Act as in
force in East Pakistan. But an agreement to let or sub-let which does not
operate as a lease in praesenti falls under Article 5 for the purpose of stamp
duty.
Al-Hajj
Kutubuddin Vs. AJ Haridwan Uddin (1962)14 DLR 129.
Art.40(b)—Respondent
mortgaged his properties, as a security for obtaining loan to the Bangladesh
Shilpa Rin Sangstha—But so far as the Bank of CC International is concerned it
is a first security for which stamp-duty under clause (b) of the Act is
chargeable.
Chairman
National Board of Revenue Vs. GMG Corpn. (1983) 35 DLR (AD) 263.
—Respondent
executed a promissory note for the purpose of hypothecation to the Bank of CCI,
but the present document is a first Document as a Mortgage deed to the Bank and
as such it is an original mortgage transaction.
Chairman
National Board of Revenue Vs. GMG Corpn. (1983) 35 DLR (AD) 263.
—The
instrument in question shows clearly that the mortgage was intended by the
respondent in favour of the Bank of Credit and Commerce International,
notwithstanding their earlier hypothecation and pledge of goods by execution of
promissory note etc in favour of the same bank. If that is the position, as it
appears to be so, Article 40 is attracted.
Where the
mortgagor gives to the mortgagee a power of attorney to collect rent of a lease
of the property mortgaged or part thereof it is deemed to give possession
within the meaning of the article. That means in such case it will come under
clause (a) and not (b).
Chairman,
National Board of Revenue Vs. GMG Corpn. (1983) 35 DLR (AD) 263.
—Present
mortgage-deed is not a collateral security and does not relate to any previous
mortgage in favour of Bank of CCI—If it had been in favour of Shilpa Rin
Sangstha, it would be collateral security.
Chairman,
National Board of Revenue Vs. GMG Corpn. (1983) 35 DLR (AD) 263.
—Agreement
to sell property—Earnest money to be treated as charge on property in case of
non- performance of contract—Agreement does not become mortgage deed.
Where there
is an agreement to sell the property in dispute on certain terms and conditions.
In the document itself it is stated that as long as the contract is not
performed, the amount advanced as earnest-money will be treated as charge on
the property agreed to be sold. Even if this stipulation had not been made in
the document, any amount paid in advance towards the agreement of sale is a
charge under section 55, sub-section 6(b) of the Transfer of Property Act. By
incorporating such a term, an agreement of sale cannot be considered to be an
instrument whereby, for the purposes of securing money advanced or to be
advanced by way of loan or an existing or future debt, or the performance of an
engagement, one person transfers, or creates, to or in favour of another a
right over or in respect of specified property. The document did not require to
be stamped as a mortgage deed.
Moosa Vs. Mohd.
Yakoob, PLD 1966 (WP) Karachi 376 (DB).
Art. 40 (c)—Mortgage-deed
is a security in addition to the securities already furnished, in favour of the
same lender and in respect of the same loan.
Chairman,
National Board of Revenue, Bangladesh Vs. M/s. GMG Corporation Ltd. (1983) 35
DLR (AD) 262.
—Mortgage-deed
in question is a collateral/ auxiliary security in relation to the demand
promissory note and the hypothecation deed which are the primary and principal
security w repayment of the same loan and as such this mortgagc-deed is
chargeable under clause (C) of Article 40.
Chairman,
National Board of Revenue, Bangladesh Vs. M/s. GMG Corporation Ltd. (1983)35
DLR (AD) 262.
—Clause(c)
applies to mortgage-deed when it is a collateral or additional security, which
means a Security in addition to a security already furnished.
Chairman,
National Board of Revenue, Bangladesh Vs. M/s. GMG Corporation Ltd. (1983) 35
DLR (AD) 262.
—Security
already furnished by executing a demand promissory note and a hypothecation
deed in respect of movables—Mortgage-deed in respect of immovable is nothing
but a collateral or anxiliary security and therefore is covered by clause(c) of
Art. 40.
Chairman,
National Board of Revenue, Bangladeshdesh Vs. M/s. GMG Corporation Ltd. (1983)
35 DLR (AD) 262.
—Mortgage in
this case falls in the category of collateral security and not that of primary
security.
Chairman,
National Board of Revenue, Bangladesh Vs. M/s. GMG Corporation Ltd. (1983) 35
DLR (AD), 262.
Art.45—The stamp
duty required to be paid on a deed of partition under item 45 of Schedule I to
the Stamp Act is the same as that item 15 for the amount of the value of the
separated shares of the property and in the note it is clear that if there were
two or more shares of equal value and not smaller than any of the other shares,
then one of them would be property on which stamp duty will have to be paid.
Nabadwip Ch.
Karmakar Vs. Modhu Sudan Karmakar (1955) 7 DLR 235
—In the
instant case the final decree was passed on 30.11.54 but the decree was drawn
and signed on 22.5.65. The decree could not be drawn and signed earlier as the
required stamp paper was not put in. A decree in a partition Suit 1S an
instrument of partition which is chargeable with stamp duty under Article 45 of
the Stamp Act, 1898, and unless it is duly stamped the decree is not admissible
if evidence as provided in section 35 of the Stamp Act.
Aminullah
Bhuiyan Vs Abdul Hajiz (1981) 33 DLR (AD) 282.
Art. 45—Duty
payable under Article 45.— Under Article 45 the duty payable on instrument of [
partition is for the amount of the value of the separate share or shares which
have been separated off from the longer
share. 150 IC 119; 1934 (Mad) 204.
Compromise
decree—Allotting of specific parcels is a final order—Engrossment of stamp
paper—A
compromise decree in a partition suit allotting specific parcels to the parties
is a final order for effecting partition. The decree does not merely declare
the rights of the several parties but also allots the properties according to
the respective shares of each party. It is not therefore a preliminary decree
but a final decree. The only that remains to be done is to engross it on a
stamped paper under Article 45. The decree so engrossed on the stamp will bear
the date of the decree. There is no time-limit prescribed for the engrossment
of a partition decree on stamp of requisite value. The effect of engrossment of
the decree on stamped paper would be that it will be rendered legally effective
which it is not until so engrossed. AIR 1945 (Pat) 482:24 Pat, 427.
Art. 48—The
expression “general powers of attorney” used in Order Ill, rule 2(a), Code of
Civil Procedure as amended by Appellate Side Rules of Chief Court of Sind
should be interpreted as an ordinary expression of English Language and the
idea of our transaction or more contained in Article 48 of the Stamp Act should
not be superimposed on it. PLR (1960) 1 (WP) 504.
A general
agent may be one that has authority to act in all matters of a particular
nature. The several acts which he may be expected to do for achieving the
object may constitute one transaction, but the power that is conferred on him
may be general in so- far as that contemplated transaction is concerned. Such a
power-of-attorney is special for the Stamp Act and general for making the
contemplated transaction. PLR (1960) 1 (WP) 504.
