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Report No. 67

Chapter 28

Articles 2 to 4

28.1. Article 2-Introductory.-

Article 2 levies a duty on an administration bond. The article does not define the expression "Administration Bond". Mulla defines1 it as "a Bond with one or more sureties (unless sureties are dispensed with), which must be given for the due collection, getting in and administration of the estate of the deceased, by any person to whom letters of administration are granted". It should, however, be noted that an administration bond can be demanded even otherwise than proceedings for the grant of letters of administration. For example, there may be a suit for administration2-3. Forms of plaints in such suits are given in the Code of Civil Procedure4. There does not appear to be any case law on this article, raising doubts.

1. Mulla Indian Stamp Act, 6th Edn., p. 202.

2. Order 20, Rule 13, Code of Civil Procedure, 1908.

3. Cf. Shivprasad v. Prayag Kumar, AIR 1936 Cal 39.

4. Code of Civil Procedure, 1808, Schedule 1, Appendix A, Forms 41-43.

28.2. Recommendation to substitute references to the Indian Succession Act, 1925.-

The reference in the Article to section 256 of the Indian Succession Act, 1865, to section 78 of the Probate and Administration Act, 1861, and to Sections 9 and 10 of the succession Certificate Act, 1889, must now be read as a reference to the Indian Succession Act, 1925, and to sections 291, 375 and 376 of that Act respectively. Administration bonds include, therefore, bonds under sections 291, 375 and 376 of the Indian Succession Act, 1925, and section 6 of the Government Savings Act, 1873. The article should be so amended.

28.3. Article 3.-

Article 3 levies a duty on an adoption deed, that is to say, an instrument (other than a will) recording an adoption or conferring or purporting to confer an authority to adopt. History of the article is of interest. In the previous Stamp Act of 18791, the relevant article provided that "an instrument (other than a will) conferring or purporting to confer an authority to adopt", was liable to stamp duty. Under the 1879 Act, thus, the record of an adoption was not chargeable with stamp duty. In two Bombay cases2 decided under that Act, the document declared that the adopted son was to be the heir to the interest of the adoptive father in the undivided family property, but the court held that no stamp duty was chargeable on this instrument. As regards the present Act, the following extract from the proceedings of the Legislature is of interest3

"It has been pointed out, that adoption is a religious ceremony, and under these circumstances it ought to be free from any duty. We perfectly admit it, but what I desire to point out is, that we do not in any way levy a duty upon adoption. So far as adoption is a religious ceremony, it goes free, naturally and inevitably, but if a deed of adoption is drawn up which is to be used as a document of title to property, it is then, and only then, that the duty is levied, not upon the adoption but upon the deed which records it, and which is meant to be effective as an instrument creating a right to property".

1. Stamp Act, 1879, Schedule I, Article 38.

2. (a) Amhai (in re:), 1889 ILR 13 Born 280; (b) Hanmappa (in re:), (1889) 13 Born 281.

3. Sir James Westland's Speech (1898).

28.4. Case law.-

There are not many reported cases on the section. The expression "recording" as used in this article, means, according to one Lahore case-1

"committing to writing an authentic evidence of a matter having legal importance, evidence of which is thus preserved and may be appealed to in case of dispute. It is not legally necessary that the matter and the record thereof should be contemporaneous; there may be cases in which a fact is reduced to writing as authentic evidence thereof long after it came into existence."

The deed in this case referred to the adopted son as the successor of all the property of the adoptive father, but no reference to this part of the deed was made by the court in deciding whether stamp duty was payable on the deed.

1. Lnbh Singh v. Mehr Singh, AIR 1932 Lah 118 (120) (SB).

28.5. No Change.-

Article 3, of course, does not assume that a deed of adoption, or an authority to adopt, is required by law. In fact, under the Hindu Adoptions Act, a deed is not required-nor is it sufficient. It is, therefore, in very rare cases that Article 3 will be attracted. However, it is not necessary to disturb the article on this ground.

28.6. Article 4-Affidavit.-

Article 4 levies a duty of one rupee on an affidavit, including an affirmation or declaration in the case of persons by law allowed to affirm or declare instead of swearing. It provides for the following exemptions:

"Affidavit or declaration in writing when made-

(a) as a condition of enrolment under the Indian Army Act, 1911, or the Indian Air Force Act, 1932;

(b) for the immediate purpose of being filed or used in any Court or before the officer of any Court; or

(c) for the sole purpose of enabling any person to receive any pension or charitable allowance".

The Act does not define the expression "affidavit".

28.7. In the U.P. amended Article 4 runs as below1:-

"Affidavit, including an affirmation or declaration in the case of persons by law allowed to affirm or declare instead of swearing

(a) for the immediate purpose of being filed or used in any Court or before an officer of any Court one Rupee;

(b) in any other case Four Rupees and fifty paisa.

Exemptions-Affidavit or declaration in writing when made-

(a) as a condition of enrolment under the Army Act, 1950, the Air Force Act, 1950 or the Navy Act, 1957, or

(b) for the sole purpose of enabling any person to receive any pension or charitable allowance2."

1. U.P. Taxation Law Amendment Act (U.P. Act 11 of 1969).

2. See Ramashanker v. Collector, AIR 1971 All 287.

28.8. Meaning of "affidavit"-recommendation for amendment.-

In this article, the words "including an affirmation or declaration in case of persons by law allowed to affirm or declare instead of swearing", seem to have been modelled on the lines of the present definition of "affidavit" in the General Clauses Act1. We have, in our Report on the General Clauses Act2, discussed at length, how the definition in the General Clauses Act is inaccurate. An 'affidavit' really means a written statement made on oath or solemn affirmation, etc. and not the affirmation itself. For this reason, in our Report on that Act, we have recommended a revised definition of "affidavit", as meaning 'a statement in writing purporting to be a statement of fact, signed by the person making it and confirmed by him on oath'. Similar phraseology should be used in Article 4 of the Stamp Act also, and we recommend accordingly.

1. Section 3(3), General Clause Act, 1897.

2. 60th Report, General Clauses Act, paras. 3.4 to 3.8, relating to section 3(3)-'affidavit.'

28.9. Exemption (a)-recommendation to substitute reference to current Army Act and to add Navy Act, 1957.-

Exemption (a) below the article refers to the Indian Army Act, 1911, and the Indian Air Force Act, 1932, in place of which references to the relevant current Acts should be substituted. These are-the Army Act, 1950, and the Air Force Act, 1950. The Navy Act, 1957, should also be mentioned.

28.10. Exemption (b) to be defined.-

Exemption (b) below Article 4 exempts, from stamp duty, affidavits for immediate use in court. When the affidavit is filed in support of an application, the application has usually to bear court fees. With reference to the expression "immediate" it has been held that1, by virtue of exemption (b), affidavits made with the intention of filing in court are not subject to stamp duty, even though they are sworn at a different place (i.e. not in the place where the court is situated), and are filed in the court on a later date. The word 'immediate' refers to the purpose of the affidavit, and not to time. Thus, in an Allahabad case2, an affidavit for a pending proceeding in Meerut, sworn at Bombay and filed in a Meerut Court after three weeks, was held to be exempt.

1. Sheshamme (in the Application of), 1888 ILR 12 Born 276.

2. Siri Kishan Das v. Mohd. Nazir, AIR 1947 All 37 (FB).

28.11. In Bihar and Andhra Pradesh, however, this exemption has been deleted-in the former with effect from 31st March, 1958, and in the latter, by Act 26 of 1965. In the U.P. the exemption has been removed and duty levied, although the duty is less. In an Andhra Pradesh case1, the High Court made the deletion of this exemption for affidavits, sworn or declared for the immediate purpose of filing in court, liable to stamp duty under Article 4. The High Court, however, agreed with counsel's argument that this would make litigation costly, and would also cause practical difficulties and hardship to the litigant public and lawyers. We agree with the observations of the Andhra Pradesh High Court. The exemption should not, therefore, be deleted. We are further of the opinion that in view of the difficulty caused by the word "immediate" in exemption (b), that word should be replaced by "sole". When the affidavit is filed in court, it will usually accompany an application, and the application will be chargeable with court fee.

1. Sambasiya Raju v. Chandrayyn, AIR 1967 AP 87.

28.12. Recommendation.- In the light of the above discussion, we recommend that the article should be revised as under:

"4. Affidavit, that is to say, a statement in writing purporting to be a statement of fact, signed by the person making it and confirmed by him by oath, or, in the case of person by law allowed to affirm instead of swearing, by affirmation.

Exemptions:

Affidavit or declaration in writing when made-

(a) as a condition of enrolment under the Army Act, 1950, the Navy Act, 1957 or the Air Force Act, 1950;

(b) for the sole purpose of being filed or used in any court or before the officer of any court; or

(c) for the sole purpose of enabling any person to receive any pension or charitable allowance."

We may mention that the proposed amendment has been approved by most replies to our Questionnaire1.

1. Q. 77.



Indian Stamp Act, 1899 Back




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