1985 ALLMR ONLINE 222
Bombay High Court

H. W. DHABE, J.

SANTOSH PUNDLIK MADANKAR vs. RAMDAS MAHADEORAO WAGHE

Civil Revn. Appln. No. 1264 of 1984

24th April, 1985.

Petitioner Counsel: S.V. Padhye
Respondent Counsel: V.U. Vaidya

The learned counsel for the applicant has however relied upon a decision of this Court in the case of Life Insurance Corporation of India v Dinanath Mahadeo Tembhekar and others1 in support of the contention that the document in question is an agreement and that the stamp duty payable thereupon is under article 5 of Schedule I of the Act.Further the view taken by the learned Single Judge in the decision cited supra is with respect contrary to the decision of the Division Bench of this Court cited supra (AIR 1948 Bombay 336) in which even a letter which recorded an antecedent transaction was held to be a document of lease within the meaning of section 2(16) of the Indian Stamp Act wherein the definition of the term lease is in pari materia with the definition of the said term under the Act.However in the circumstances of the case there would be no order as to costs.Revision dismissed.

Cases Cited:
AIR 1976 Bom. 395.
AIR 1937 Nag. 321.


JUDGMENT

JUDGMENT:- The point which is raised in this Civil Revision is no more res integra as it stands concluded by the judgment of the Division Bench of this Court in the case of the Collector and Superintendent of Stamps, Bombay v. Laxmibai Saheb Angre (AIR 1948 Bombay 336).

2. Briefly, the facts are that the instant suit is between the landlord and the tenant. The applicant is a tenant who has executed a rent-note dated 15-2-1979 in favour of one Ramkrishna Gangaramji Khetkar of whom he claims to be the tenant in respect of the suit block. The terms and conditions in the said rent-note show that the applicant has taken on lease the block described in the said rent-note with effect from 15-2-1979 at the monthly rent of Rs. 60/-. As per the terms and conditions in the said rent-note the applicant has undertaken to pay the rent every month after receipt of his salary. He has also agreed not to sub-let the suit block. He has further agreed in the rent-note not to use the suit premises for any other purpose. It is also a term in the said rent-note that at the time of vacating the suit premises a previous intimation of 15 days would be given by the landlord upon which the applicant agreed to vacate the premises without any objection. The applicant also has undertaken to give one month's notice before vacating the premises. There are also other terms and conditions in the said rent-note to which the applicant has agreed. It is not in dispute that the applicant is in possession of the premises described in the rent note with effect from 15-2-1979.

3. After this rent-note was produced in the trial Court an objection was raised that it was not stamped and, therefore, it was not admissible unless it was properly stamped and a proper penalty is paid under the provisions of the Bombay Stamp Act, 1958 (for short "the Act"). The learned trial Court by its order dated 1-12-1984 held that the rent-note dated 15-2-1979 is a document of lease and, therefore, liable for stamp duty of Rs. 48/- plus the penalty of Rs. 480/- i.e. ten times the stamp duty payable on the document. Being aggrieved, the applicant has challenged the above order of the learned trial Court by preferring the instant revision in this Court.

4. The learned counsel for the applicant/tenant has urged that the rent-note is merely an agreement and, therefore, the stamp duty payable upon it is as provided in article 5 of Schedule 1 to the Act. It is his further contention that even if it is treated as a document of lease the stamp duty payable is as per article 36(a)(i) and not as per Article 36(a)(vii) of Schedule 1 of the Act. In considering the question whether the document in question is merely an agreement or a lease the question has to be decided in accordance with the definition of the term "lease" given in section 2(n) of the Act. The said definition is an inclusive definition and in clause (ii) includes a Kabulayat (or other undertaking in writing not being a counterpart of a lease to cultivate, occupy or pay or deliver rent) for immovable property. The said inclusive clause clearly shows that if there is an undertaking in writing to occupy or to pay or deliver rent for immovable property then it is "lease" within the meaning of the definition of the said term. It is pertinent to notice the intrinsic evidence at this stage in article 5 of Schedule I relating to Agreement or memorandum of an agreement in which there is an entry "Agreement to Lease", which is shown to be covered by the entry 'Lease' in article 36 of Schedule I. In view of the above definition of the word "Lease" it is clear that the rent-note executed by the applicant is a document of lease upon which the stamp duty is leviable under article 36 of Schedule I of the Act.

5. The learned counsel for the applicant has, however, relied upon a decision of this Court in the case of Life Insurance Corporation of India v. Dinanath Mahadeo Tembhekar and others1 in support of the contention that the document in question is an agreement and that the stamp duty payable thereupon is under article 5 of Schedule I of the Act. A perusal of the said decision shows that in that case the document in question had merely recorded a past transaction of lease conveying only the terms and conditions of tenancy which was, therefore, characterised by the Court as an agreement within the meaning of article 5 of Schedule I. The facts in the instant case are different. In the instant case the lease is created from the date of the document i.e. 15-2-1979. It does not, therefore, record the past transaction. Moreover, as already stated, the said rent-note satisfies the requirement of the inclusive clause (ii) of the definition of the term "lease" under the Act. Further, the view taken by the learned Single Judge in the decision cited supra is, with respect, contrary to the decision of the Division Bench of this Court cited supra (AIR 1948 Bombay 336) in which even a letter which recorded an antecedent transaction was held to be a document of lease within the meaning of section 2(16) of the Indian Stamp Act wherein the definition of the term "lease" is in pari materia with the definition of the said term under the Act. The Division Bench held in that case that there was an undertaking to pay the rent in the letter in question in the said case and, therefore, amounted to a "lease" within the meaning of the definition of the said term under the Indian Stamp Act. In view of the decision of the Division Bench of this Court which is binding upon me it has to be held that the document in question in this case, viz. the rent-note dated 15-2-1979 is a document of lease within the meaning of section 2(n) of the Act.

6. Turning now to the question whether the stamp duty is payable under article 36(1)(i) or article 36(a)(vii) of Schedule I of the Act, the submission is that since the lease is from month to month it is a lease for less than one year covered by article 36(a)(i) and not a lease which does not purport to be for an indefinite term within the meaning of article 36(a)(vii) of Schedule I of the Act. Reliance is placed in support of the above contention upon the decision of the Nagpur High Court in the case of Rajib Bueain and another v. Nawab Yanuskhan2. However, the question decided in the said case was a different question, viz., whether in the case of month to month tenancy the leasehold rights are heritable or not. The said case is thus distinguishable on facts.

7. However, the above contention raised on behalf of the applicant also stands concluded by the Division Bench judgment of this Court in the case cited supra. It is held in the said case that a lease fixing monthly rent which does not specify any period for the lease and which can be terminated at any time by a notice from either side is not a lease for a term less than a year within article 35(a)(iv) but is a lease for an indefinite term within article 35(a)(iv) and is chargeable to duty as such under the provisions of the Indian Stamp Act. The view taken by the Division Bench of this Court in the above decision is binding upon me. It has, therefore, to be held in this case that the lease in the instant case fixing the monthly rent and which admittedly does not specify any period for the lease and which could be terminated at any time by notice as provided therein by either side is not a lease for a term of less than one year as contemplated by article 36(a)(i) but is a lease which does not purport to be for any definite term within the meaning of article 36(a)(vii) of Schedule I of the Act. In this view of the matter the stamp duty and the penalty levied by the learned trial Court treating the document as one covered by article 36(a)(vii) is correct and has to be upheld.

8. In the result, the instant revision fails and is dismissed. However, in the circumstances of the case, there would be no order as to costs.

Revision dismissed.