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Report No. 67

47.9. Words "as set forth".-

Reverting to the main article, the words "as set forth in such settlement" are to be construed with 'value', and not with the word 'property'. Turner C.J. had these observation to make -"If the terms as set forth in such settlement' refer to the property settled, the duty is chargeable not on the value of the property which may be mentioned in the settlement, but on the value of the interest or interests created by the instrument which may not be co-equal to the value of the property. But if this was intended, the intention might have been less clumsily expressed1. We are, however, of opinion that the terms apply not to the interests created by the instrument, but to the value set forth in the settlement, and the law suggests that the settlor should insert the value. It is obvious that it must often be difficult and sometimes impossible, to value the interests created by a settlement, and the legislature has, we imagine, on this ground amended by law by the introduction of the words we are considering."

It is to be pointed out that the Madras2 view has been followed in Allahabad3, and also in a later case of the Madras High Court4.

1. Emphasis added.

2. Reference, 8 Mad 453 (Turner, C.J.).

3. Mohammad Muzafar Ali (in re:), 1922 ILR 44 All 339.

4. Board of Revenue, Venkataraman Aiyar, AIR 1950 Mad 738.

47.10. Meaning of the words "occasion-of the marriage".-

In the exemption, the words "executed on the occasion of a marriage" have been constructed by the Bombay High Court to mean "at the time of a marriage". According to this construction, a deed of dower executed a week before the marriage would not fall within the exemption1.

To us, with due respect, this interpretation appears to be one which might require reconsideration. In its judgment, the High Court made a distinction between a deed of dower which is, purely and simply, a deed in consideration of marriage and a deed of dower "executed on the occasion of the marriage". The assumption seems to be that the latter phraseology is narrower than the former. It was held that the words "on the occasion" mean "at the time".

1. Bai Ameena v. Arab Abdul Talib, 60 Born LR 1206: AIR 1959 Born 108 (D.V. Vyas, J.).

47.11. We are of the opinion that this is not a reasonable construction. In our view, the legislature did not use the words "on the occasion" with any intention of emphasising the exact identity in point of time; the primary object may have been to indicate that the marriage must be between the Muslims and that there must be a connection between the marriage and the deed. Apart from this question of construction, we may also state that the Bombay view would cause a lot of practical inconvenience since, in practice, parties do not necessarily execute the deed of dower on the very day of marriage or at the very time of marriage. The deed might precede the marriage or, if convenience so requires it might be executed even after the marriage.

47.12. Should it, as a matter of policy, matter whether the deed is or is not simultaneous with the marriage? We do not think so. Since the exemption in question incorporates a remission granted previously by a Notification of the Government of India,1 the available historical material does not throw light on the precise scope which was intended for the exemption. But, viewing the matter from the angle of principle, we do not see any reason why the fact that the deed preceded the marriage or followed it should deprive it of exemption under the Stamp Law. If, as we have pointed out above,2 the principle underlying the exemption is that in the case of a Muslim marriage, dower is a matter of obligation and not one of bounty, then the distance in point of time should not be material, provided, of course, it is established that the deed is one of dower and that it has a connection with the marriage.

Of course, it may be difficult to draw a line but no one would say that one week is too long an interval. To avoid recurrence of controversies and to put in the statute what we consider to be the proper policy, we recommend that the words "whether the deed was executed before or after the marriage" should be added in the exemption at the end, and that the words "on the occasion of the marriage" be replaced by the words "in connection with the marriage", so as to eliminate the construction that the marriage and the deed must be simultaneous.

1. Para. 47.2, supra.

2. Para 47.6, supra.

47.13. Article 59-Introductory.-

Article 59 levies duty on share warrants to bearer, issued under the "Indian Companies Act, 1882".

A share warrant is a negotiable instrument. A company limited by shares may, if authorised by its articles, issue share warrants under its common seal in respect of fully paid shares1 or stock.2 A share warrant certifies that the bearer of it is entitled to the share represented by the Warrant. The legal title to the shares is transferred by mere delivery of the warrant from one person to another with the intention of passing that title. Where a share warrant is outstanding, the register of members bears a note of its issue. The bearer of the warrant may surrender it back to the company at any time and be registered on the register of members, and receive a share Certificate instead.3-4

1. Webb Hale and Company v. Alexandria Water Co., (1905) 21 Times Law Reports 172.

2. Section 114, Companies Act, 1956.

3. Halsbury's, 3rd Edn., Vol. 6, p. 249.

4. Pilkinston v. United Railway, (1930) 2 Chancery 108: 1930 All ER Reprint 649.

47.14. Recommendation.-

We have no amendment of substance to recommend in the article. But the reference to the provision of the Companies Act should now be to "section 114 of the Companies Act, 1956". This is only a verbal amendment. We recommend that the article should be amended so as to substitute those words.

47.15. Article 60.-

Article 60 levies duty on a shipping order, for or relating to the conveyance of goods on board of any vessel. It needs no change.

Indian Stamp Act, 1899 Back

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