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TMI Blog1992 (2) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... Chogle, Govt. Pld. for appellants in A. Nos. 238, 224, 275 and 551, 1031/1991, A.R. Kini, Adv. in A. Nos. 275 and 551 of 1991, S.T. Tijoriwala and S.N. Vimadalal, Advs. in Appeal No. 276 of 1991, A A.K. Chawla, Adv. in W.P. No. 1031 of 1990, Y. Chandrachud, Adv. i/b Ambubhai Diwanji in W.P. No. 1031 of 1990, M.V. Patel, Adv. i/b., Estley Lam Co. in W. P. No. 1720 of 91, M.P.S. Rao, Adv. and H.K. Shroff, Adv. i/b., Rustamji and Ginwala, Advs. W.P. Nos. 332, 3082 of 1986, Shah and Sanghvi, Advs. in Writ Petition No. 1860 of 1986, Mahesh N. Vepari, Adv. in Writ Petition Nos. 2945 and 3351 of 1986, Vinod Mistry and Company in Writ Petition No. 3326 of 1986, M.P. Savla and Co. in Writ Petition No. 3423 of 1986, D.H. Nanavati, Adv. in Writ Petition No. 39 of 1987, Mirashi, Adv. i/b., Shah and Sanghavi, Advs. in W.P. No. 1180 of 1987, Mulla Mulla, Craigie Blunt and Caroe, in W.P. No. 2333 of 1987, M.L. Chaturvedi, Adv. in Writ Petition No. 1865 of 1988, M.L. Chaturvedi, Adv. in Writ Petition No. 1867 of 1988, S.N. Vimadalal, Adv. i/b., Vinod Solanki, Adv. in Writ Petition No. 2792 of 1989, Kapadia and Co. in Writ Petition No. 3031 of 1989, D.D. Madon and H.N. Vakil, Advs. i/b., Mulla and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant facts in Appeal No. 238 of 1991. This appeal arises out of a decision dated 10-12-1990 rendered by a learned Single Judge in Writ Petition No. 198 of 1985. The learned Single Judge while construing the definition of `conveyance' under section 2(g) and `instrument' under section 2(1) of the Act, held that the consent decree does not fall in any of these definitions and therefore, such a consent decree is not liable for payment of stamp duty. Learned Single Judge drew support to his interpretation from the decision of this Court in Sharanbasappa Tippanna Indi v. Sanganbasappa Sridramappa Sahapur and others, A.I.R. 1935 Bom. 256 : 37 Bom.L.R. 246. Consequently the learned Single Judge allowed the writ petition. It is this judgment of the learned Single Judge which is sought to be challenged in this appeal. 4. M/s. Ruby Sales and Services Private Limited 1st respondent-writ petitioners (plaintiffs) on 17th April, 1984 obtained a consent decree in Suit No. 321 of 1984 against Mukesh Dehyabhai Patel and others. It was a suit filed by the plaintiffs against the defendants for specific performance of the agreement for sale dated 18th October, 1982. On the basis of the consen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dants have handed over to the plaintiff complete vacant possession of the said immovable property more particularly described in Exh. `A' to the plaint. From the above recitals in the Consent Decree there can be no manner of doubt that the parties to the transaction and the suit agreed that this Consent Decree shall operate as the conveyance from the defendants in favour of the plaintiffs in respect of the suit property more particularly described in Exh. A to the plaint. It is also not contested before us by the respondents that this Consent Decree does operate as a conveyance. We may therefore, proceed on the footing that the consent decree operates as a conveyance in favour of the plaintiffs-first respondent-writ petitioners. 4-A. As indicated earlier the material and relevant recitals in the consent decree in all these matters are almost identical except description of the property, parties, consideration and date of consent decree. Each of the consent decree does record that the consent decree operates as a conveyance in favour of the plaintiffs-purchasers. With this background we may now advert to the provisions of the Act to find out whether or not such consent decrees f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition of the word conveyance under section 2(g) reads as under: Conveyance includes, (i) a conveyance on sale, (ii) every instrument, and iii) every decree or final order of any Civil Court, by which property, whether moveable or immovable, or any estate or interest in any property is transferred to, or vested in, any other person, inter vivos, and which is not otherwise specifically provided for by Schedule I. From this amended definition of word conveyance it is clear that the Legislature has by inserting sub-clause (iii) to Clause (g) of section 2 covered every decree or final order of any Civil Court by which property whether moveable or immovable, or any estate or interest in any property is transferred to, or vested in, any other person, inter vivos. Since the consent decrees passed in all these matters are prior to Amendment Act (Maharashtra Act No. 27 of 1985), a serious argument was advanced before us on behalf of writ petitioners that this amendment has introduced a new provisions by substitution and, therefore, it is not by way of clarification. In the light of the above provisions and contentions raised before us we will have to find out as to whether consent decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words or phrases as occurring in the body of the statute. When it is used those words and phrases must be construed as comprehending not only such thing as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include such document which has positive effect of conveying the Immovable property as absolute owners. Miss Ankalesaria, the learned Government Counsel strongly emphasised the object of inclusive definition to include the consent decrees in question. She relied upon the decision of the Supreme Court in C.I.T.A.P. v. M/s. Taj Hotel, Secunderabad, [1971]82ITR44(SC) . The definition of the word `conveyance' is an inclusive definition and it opens with the word, includes a conveyance . In this reported decision section 10(5) of the Income Tax Act, 1922 fell for consideration. Section 10(5) provides, inter alia, that in sub-section (2), plant includes vehicles, books, scientific apparatus and surgical equipment purchased for the purpose of the business, profession or vocation. While construing true meaning and scope of the word `includes' used in the statute, the Supreme Court in paragraph 6 has ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Butler, Hob, 1971. The Supreme Court then observed, The quotation, given above, from Stroud's Judicial Dictionary shows that ordinarily, the expression that is to say is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not sured, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word `includes' is generally employed. In unusual cases, depending upon the context of the words that is to say this expression may be followed by illustrative instances. Relying upon these observations of the Supreme Court Counsel urged that the amendment incorporated by Mah. Act No. 27 of 1985 to the definition of conveyance is by way of clarification and in order to clarify what was implicit in the provisions as it existed prior to amendment. The amendment therefore, is by way of clarification of an ambiguous provision. By reading the amended provision Court can construe the unamended provision. To support this submission Miss Ankalesaria relied upon the decision of the Supreme Court in Thiru Manickam and Co. v. The State of Tamil Nadu [1977]1SCR950 . It is sufficient to reproduce the last headnote which reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment includes deed, will enclosure ,award and Act of Parliament... In support of this submission Miss Ankalesaria drew our attention to the decision of the Supreme Court in Mohan Chaudhari v. Chief Commissioner of Union Territory of Tripura, 1964CriLJ132 . The Supreme Court ruled that the order passed by the President on 3rd November, 1962 suspending the petitioners right to move the Court is an instrument. In this reported decision the Supreme Court was considering the expression `instrument' used in section 8 of General Clauses Act and in that context it was held that President's order is an instrument issued in exercise of constitutional powers. Applying the same analogy Miss Ankalesaria urged that definition of `instrument' under the Bombay Stamp Act is an inclusive definition and is wide enough to include all such documents. She further urged that the word `instrument' used in the Stamp Act needs to be given wide meaning to include even award made by Industrial Court. See Purshottam v. V.E. Potdar, A.I.R. 1996 S.C. 856 Government Pleader therefore, urged that the word 'instrument' under the Stamp Act is used in a wide sense and, therefore, comprehensive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and ownership. The decree formally expresses such rights. The decree did not create or transfer this legal right to the respondents. All that the decree has done is that the respondents-writ petitioners, were in law deemed to be the owners of the property by virtue of the aforesaid factors. The decree put a seal of the Court on the position existing in law as to the legal status of the respondents. If, under the Stamp Act, the label has to be ignored, then merely because the decree used the words do operate as a conveyance , by itself did not in any way detract from or alter the aforesaid position in law. The decree gave effect to the consequential position in law, and it is a formal order of the Court. Wherever the Legislature intended to include a final order of the Civil Court to be covered by the provisions of the Act they have provided so and in this behalf he drew our attention to the definition of the word `instrument of partition' in section 2(m) of the Act. He also urged that under the Stamp Act the tax is on the instrument and not on the transaction. Mr. Khambatta also urged that the decree in question cannot be termed as a conveyance because the definition of the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our opinion, therefore, does not take the respondents' contention any further. 14. Mr. Khambatta also urged that words used in the decree, as it amounts to conveyance are re-fondant and that full title vests in the vendee on the basis of adjudication in the decree. Full title is not vested because of the words it amounts to conveyance . Decree only recognises the plaintiffs as full owners. Mr. Khambatta also urged that the word `includes' is not always and invariably used as a word of extension. It can also be used to signify exhaustiveness in definition. In this connection he drew our attention to the decision of the Supreme Court in S.G.R. Tiles Manufacturers v. State of Gujarat, [1977]1SCR878 . He also drew our attention to various other authorities and in particular the decision of this Court in Sharanbasappa Tippanna Indi v. Sanqanbasappa Sidramppa Shahapur and others, A.I.R. 1935 Bom 256 which will be discussed little latter. 15. After going through the various authorities cited before us we are of the opinion that the amendment introduced by Maharashtra Act No. 27 of 1985 is merely a declaratory and not a remedial one. The interpretation to the word `includes' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of specified property. No doubt if that definition stood alone there would be some force in the contention because the decree is only passed by reason of the agreement of the parties, and it may be argued that the inclusion of that agreement in a decree of the Court is a mere matter of machinery; but at the same time taking the language literally, it is the decree of the Court, and not the agreement of the parties, which actually creates the charge. There are, however, certain other provisions in the Act which throw some light on the question. Reliance is placed by the learned advocate for the applicant on the fact that in sub-section (15) of section 2 of the Act, it contained a definition of instrument of partition , and that definition includes, not only the case of a partition out of Court, but also a final order for effecting a partition passed by any Civil Court. It is said that if the definition of mortgage-deed had been intended to include a decree of a Civil Court, the definition would have so provided as it does in the case of definition of an instrument of partition . I do not think there is much force in that contention because the order of the Court for affection a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a urged that the age old concept appearing in the judgement of the Full Bench Sharanbasappa v. Sanganbasappa, (supra) that even consent decree is nothing more than adjudication of the rights of the parties does no longer survive. In the present matters plaintiffs approached the Court and obtained a decree in their favour by virtue of which they secured title in Immovable property and by reason of such a decree they got an absolute title. In these circumstances such consent decree must amount to a conveyance of such property covered by the decree and, therefore, their is a transfer of property from the vendors defendants to the plaintiffs under a decree which must operate as a conveyance. She also tried to distinguish the Full Bench judgment Sharanbasappa v. Sanganbasappa, (supra) on the ground that the definition of mortgage-deed in section 2(17) now section 2(p) of the Act does not mention the inclusion of a decree or final order of a Civil Court, unlike a deed of partition in section 2(15) now section 2(m) of the Act, and, therefore, the Legislature did not intend to include a decree or a final order in the definition of a mortgage-deed , for purposes of stamp. Instrument of part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Full Bench was that in the decree creating a charge no person can draw or make or execute such instrument. On the other hand the Bombay Stamp Act makes a distinction between those instruments which are mentioned in section 30(a) and the conveyance and lease which are mentioned in Clause (b) of section 30. Section 30 provides that in the absence of agreement to the contrary the expense of providing proper stamp shall be borne in the case of instruments falling under certain articles of Schedule I namely Administration Bond, Indemnity Bond. Mortgage deed, Release, Security Bond, Settlement etc. The expenses of providing the stamp shall be borne by the person drawing or making such instrument. The case of conveyance falls in Clause (b) and not in Clause (a), which provides that expense in the case of conveyance shall be borne by the grants. 20. After giving our careful thought to the vexed question, we are of the opinion that the decision of the Full Bench of this Court in Sharanbasappa v. Sanganbasappa (supra) is clearly distinguishable and at any rate the Full Bench had no occasion to consider consent decrees like present ones whether such decrees were to operate as a conveyance. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty amount to instrument under section 2(10) of the Stamp Act, 1899. The Madras High Court observed: ...Though it is an inclusive definition, it is clear that the essence of a conveyance is transfer of property or an interest therein, whether moveable or immovable, and the transfer should be inter vivos. That the recital in the two documents amounted to a transfer is apparent. No doubt, it is mentioned in the document that possession of the properties has been delivered earlier, but that would not by itself be enough to vest title in the company. The intention of the deponents of the two affidavits was to declare that the company was the owner and that the deponents divested themselves of any title to the properties. It is not necessary that a document should use always the word `transfer' or `assign' in order to constitute such transaction... . The Madras High Court in its conclusion held that the two documents together constitute a transfer and a conveyance within the meaning of section 2(10) and are chargeable to duty under Entry 23 of the Schedule I to the Stamp Act. 23. Mr. Chogle also drew our attention to the judgment of the Calcutta High Court in Nazar Ali v. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeded because of some ambiguity, in the definition of words conveyance and instrument . We were taken through the Statement of Objects and Reasons of the amending Act. It appears that this was necessitated because of the judgment of the Supreme Court in Narandas Karandas v. S.A. Kamatam, [1977]2SCR341 . The Supreme Court held that a conveyance on sale meant an absolute transfer of ownership and not limited interest in the property. The substantive part of the definition of 'conveyance' is substituted by new section 2(g) and it lays down the even transfer of limited interest in property inter vivos would be a conveyance on sale or an instrument as the case may be. 27. Mr. Khambatta urged that Indian Stamp Act is a Central Legislation. Despite the judgment of the Supreme Court in the year 1977, although the Indian Stamp Act and amended in 1980, but no such amendment was suggested to the definition of conveyance in section 2(g) of the Act. He also urged that the State of Maharashtra amended section 2(g) of the Act only in the year 1985 and this only shows that they wanted to remedy the loopholes in section 2(g) of the Act and consistent with that Maharashtra Act No. 27 of 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conveyance for sale. This would clearly frustrate the object of the Stamp Act. It will also encourage collusive litigation which may be against public policy. 30. It is well settled that construction of the statute must be to advance the object and suppress the mischief, S. Raghubir Singh Gill v. S. Gurcharan Singh Tohra [1980]3SCR1302 . It is also well settled that Court should not be deterred from changing a decision which is wrong or not in public interest. Distributors (Baroda) Pvt. Ltd. v. Union of India, [1985]155ITR120(SC) . 31. Dr. D. Y. Chandrachud learned Counsel appearing in Writ Petition No. 1031 of 1990 urged that the Maharashtra Act No. 27 of 1985 clearly states that section 2(g) of the Act has been substituted. Substitution must operate prospectively. Whenever Legislature wanted to operate such amendment provision retrospectively they have so provided under the Act itself. He drew our attention to section 19 of the Amending Act. We are unable to subscribe to this contention. 32. In view of our conclusions recorded hereinabove impugned orders made by the learned Single Judge in respective appeals cannot be sustained. All these appeals are allowed with costs. Impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y by and large fell into State field. (Entry of List of Schedule VII). Centre was in control of the sophisticated Commercial instruments, the promissory note, the Bill of Exchange and the like (vide Entry II in State List). Soon thereafter was enacted the Bombay Stamp Act, 1958. The frontiers of the State were again altered later and many amendments were made to the Act. One substantial amendment was in the year 1985. We are not concerned with such post- 1985 cases. 8. Section 3 of the Act could be treated as the 'charging section'. Thereunder, instruments are made with chargeable with duty of the amounts indicated in Schedule I. 9. Schedule I contains the enumeration of instruments starting from 'acknowledgement' (Item I) and ending with 'warrant for goods' (Item 62). After Item 11, is given the term 'assignment. but without any assignment of a number. See Conveyance (No. 25), Transfer (No. 59) and Transfer of Lease (No. 10) as the case may be. This is the direction contained therein. That takes us to the nearest of the indicated entries, 'conveyance' covered by Item 25. From the main category coming under Item 25, some exceptions have been carv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en analysed and annotated upon. An 'award', for example, was acknowledged as coming within its amptitude. That view is a hint about the width of the term. 13. An instrument is a document. When will you call something a document? Contentions have gone even to the extent that a painting on a fabric would also be within the general understanding of that term. It is unnecessary to go along that line. The Statute itself would give its dictionary in relation to the term in section 2(1). It includes every document by which any right or liability is or purported to be created transferred .. ...... ...............................................or recorded. A consent decree is a document, tested by the parameters of the authoritative pronouncement of the Apex Court. See Madhav Rao Scindia v. Union of India, [1971]3SCR9 . The type of consent decree before us, doubtless creates, transfers, extinguishes or records rights and liabilities of parties. Consequently, a consent decree, processes every attribute of the term 'instrument'. 14. As an instrument, it acts and affects instantaneously. Its operation is not postponed to a later point of time. It is live document, and taking e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deponents divested themselves of their title. The propositions propounded by the Madras High Court, in the background of the factual matrix are clear : the substance is to be examined; one need not unnecessarily search for familiar term like 'transfer' or 'assign' in the document, if it is otherwise effective to operate as a conveyance. If that could be the position in relation to an affidavit, the stronger could be the position in the case of a consent decree. 18. It was contended that, when there is a decree, it delineated the rights of the parties, and consequently, the consent decree does not emerge as the document by which the property is transferred. The clauses and contends of the consent decree have already been examined in the main judgment. On the text in the context, the consent decree is the only document by which the right is transferred. The recitals, clear and unambiguous, in relation to the extensive role played by the document in divesting the title from one and vesting it on the other, is traceable only to the consent decree. The imprimatur given by the Court notwithstanding , it is the true repository of the bargain and the only vehicle which tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials, the swiftness with which they build up brick or block by block, all elicit appreciation due to a dynamic entrepreneur. The Bombay Builder was a publication which started in late 1860's. It has highly critical about the P.W.D. and about architects like Wilkins and Stevens and even against a great administrator like Crawford, the Municipal Commissioner of Bombay. The following passage parades their perspectives and anger: Bombay has at the present moment a chance of becoming at least in part a splendid city, a second Indian City of Palaces... Who is there is in the public Works Department who has the smallest artistic power, Or who even knows anything at all about architecture, (See 'The City of Gold' The biography of Bombay - by Gillian Tindall - page 235). Though the publication The Bombay Builder stopped the activities of the Bombay builders proliferated. To the extent of their activities and actions are brisk and - brilliant, they may earn the laurels in addition to attractive profits. When they give the slip and tread on slushy paths, all statutory and other authorities the Court included, would chide or censure them. A manipulation of the type of consent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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