THE MEMBER, BOARD OF REVENUE v. ARTHUR PAUL BENTHALL.
Citation: [1955] 2 S.C.R. 842; 1955 INSC 50
Court: Supreme Court of India
Bench: SUDHI RANJAN DAS , N. CHANDRASEKHARA AIYAR, NATWARLAL HARILAL BHAGWATI, T.L. VENKATARAMA AIYYAR, SYED JAFFER IMAM
Judgment date:
Case summary
1955 INSC 50. Supreme Court of India judgment dated 1955-10-04. THE MEMBER, BOARD OF REVENUE v. ARTHUR PAUL BENTHALL. Read the judgment and case details on...
Judgment text
842 SUPREME COURT REPORTS (l955J THE MEMBER, BOARD OF REVENUE v. ARTHUR PAUL BENTHALL. (S. R. DAs. AcTING C. J. , BHACWATI, VENKATARAMA AYYAR, JuER IMAM and CHANDRASEKHARA AIYAR JJ. J The Indian Stamp Act (II of 1899), ss. 5 and 6-Expression "disti11;t matters" in s. 5 and "description" in s. 6-I-Vhethe1 hav~ diffe1·ent connotations-Instrument in question-Whether comprised distinct tnatters. · Held per S. R. DAs, AcTINC C. J. , VENKATARAMA AYYAR, J. \FER l~:iAM and CttANDRASEKHARA AIYAR JJ. (BH1\GWATI J. r'issenting) the contention that the word "matter" in s. 5 of the l ndian Stamp Act was intended to convey the sarne n1eaning as the word "description" in s. 6 is \Vithout force. In its popular sense, the expression "distinct matters" would connote something different from distinct "categories''. 'fwo transactions might be of the san1e description, but all the same, they might be distinct.
When two words of different import are used in a statute in two consecutive provisions, it cannot be maintained that they are used in the same sense and therefore the expression '~distinct matters" in s. 5 and "description" in s. 6 have different connotations. It is settled law that when two persons 101n in executing a power of attorney, whether it comprises distinct matters or not will depend on whether the interests of the executants in the subject matter of the power are separate or not. Conversely, if one person holding properties in two different capacities, each unconnected with the other, executes a power in respect of both of then1, the instrument should logically be held to comprise distinct rnatters. Held, that the instrument in question, Exhibit A,-the power of attorney-comprised distinct matters within the meaning of s. 5 of the Indian Stamp Act in respect of several capacities of the respon* dent mentioned therein. Per BttAGWATI J. (dissenting).
-The fact that the donor of the power of attorney exe s has been stated above, settled law that when two persons 10111 ifi executing a power-of-attorney, whether it comprises distinct matters or not will depend on whether the interests of the cxecmants in the subject-matter of the power are separate or joint. Conversely, if one person holding properties in two different capacities, each unconnected with the other, executes a power in respect of both of them, the instrument should logically be held to comprise ,\is-tinct matters. That will he in consonance with the generally accepted notion of what are <fotinct mattero,, and that certainly was the view which the responde;it himself took of the matter when he expressly recited in the power that he executed it both in his individual capacity and in his other capacities. But it is contended by Mr.
Chaudhury that the fact that the respondent filled several capacities would not aifect the character of the instrument as relating to a single matter, as the delegation thereuncier extended to whatever the respondent could do, and that it woulcl be immaterial that he held some properties in his individual capacity and some others as trustee or executor, as the legal title to all of them would vest in him equally in the latter as well as in the former capacity. We are concerned, he argued, not with the source from which the title flowed but with the reser-voir in which it is now contained. This is to attach more importance to the form of the matter than to its substance. When a person is appointed trustee, the legal title to the estate does, under the English law, undoubtedly vest in him; hut then he holds it for the benefit of the cestui que trtut in whom the equitable estate vests.
Under the Indian law, it is well established that there can be trusts and fiduciary relations in the nature of trust even without there being a vesting of the legal estate in the trmtee as in the case of mutts and temples. 1 Vidc Vidya Varuthi v. Balusami( ). In such cases, the legal title is vested in the institution, the mahant or shebait being the manager thereof, and any delegation of authority by him can only be on behalf of the institution which he represents. When a person possesses both a personal capacity and a representative capacity, such as trustee, and there is a delegation of power by him in both those capacities, the position in law is exactly the same as if different persons ;om m executing a power in respect of matters which are unrelated.
T:1ere being no community of interest between the personal estate belonging to the executant and the trust estate vested in him, they must be held to be distinct matters for purposes of section s: The position is the same when a person is executor or administrator, because in that capacity he represents the estate of the deceased, whose persona is deemed to continue in him for purposes of administration. It was finallv contended by Mr. Chaudhurv that if e\'ery capacity of the donor is to be considered as a distinct matter, we should have to hold that there are distinct matters not only with reference to the capacity of the executant as trustee, executor and so forth, but in respect of every transaction entered into by him in his personal capacity.
Thus, it is argued, if he confers on his attorney authority to sell one property, to mortgage another and to lease a third, he would have acted in three different capacities as vendor, mortgagor and lessor, and the instrument will have to be stamped as relating to three distinct matters. 'Phis, he contended, would destroy the very basis of a general power-of-attorney. The fallacv in this argument is in mixing up the capacity which a person possesses with acts exercisable by virtue of that capacity. When an executor, for example, sells one property for discharging the debts of the testator and (! ) [1921] 48 I. A. 302. mortgages another for raising funds for carrying on his business, he no doubt acts in two different transactions; but in respect of both of them, he functions only in his capacity as executor. In our opm1on, there is no substance in this contention.
In the result, we are of the opinion, differing from the majority of the learned Judges of the court below, that the instrument, Exhibit A, comprises distinct matters in respect of the several capacities of the respondent mentioned therein, and that the view taken by the revenue authorities and supported by S. R. Das Gupta, J. is correct. This 3ppeal will ac-cordingly be allowed. The respondent will pay the costs of the appellant here and in the court below. BHAGWATI J. -I regret I am unable to agree with the conclusion reached in the Judgment just deli-vered. While agreeing in the main with the construction put upon sections 4, 5 and 6 of the Act and the con-notation of the words "distinct matters" used in section 5, I am of the view that the question still sur-vives whether the instrument in question is a single power ot attorney. or a combination of several of them.
The argument which has impressed my Bro-ther Judges forming the majority of the Bench is that though die instrument is executed by one individual, if he fills several capacities and the authority conferred is general, there would be distinct delegations in respect of each of those capacities and the instrument should bear the aggregate of stamp duty payable in respect of each of such capacities. With the greatest respect I am unable to accede to that argument. I agree that the question whether a power of attorney relates to distinct matters is one that will have to be decided on the consideration of the terms of the instrument and the nature and the extent of the authority conferred thereby.
The fact, however, that the donor of the power of attorney executes it in different capacities is not sufficient in my opinion to constitute· the instrument, one comprising distinct matters and thus requiring to he stamped with the aggregate amount of the duties with which separate instruments each comprising or relating to one of such matters would be chargeable under the Act, within the meaning of section 5. The transaction is a single transaction whereby the donor constitutes the donees jointly and severally his attorneys for him and in his name and on his behalf to act for him in his individual capacity and a\;o in his capacity as managing director, director, managing agent, agent, secretary or liquidator of any company in which he is or may at any time thereafter be in-terested in any such capacity as ·aforesaid and also as executor, administrator, trustee or in any capacity whatsoever as occasion shall require.
No doubt, different capacities enjoyed by the donor are combined herein but that does not constitute him different individuals thus bringing this instrument within the mischief of section 5. The executants of the instrument are not several individuals but is only. one individual, the donor himself, though he enjoys different capacities. These different capacities have a bearing on the nature and extent of the powers which he could exercise as such.
In his own individual capacity he could exercise all the powers as the full owner qua whatever right, title and interest he enjoys in the property, whether it be an absolute interest or a limited one; he may be the absolute owner of the property or may have a life interest therein, he may have a mort-gagee's interest or a lessee's interest therein, he may be a dominant owner of a tenement or may be a mere licensee; but whatever interest he enjoys in that property will be the subject-matter of the power which he executes in favour of the donee. He may, apart from this individual interest which he enjoys therein, be a trustee of certain property and he may also enjoy the several interests described above in his capacity as such . trustee. It may be that in his turn .
he- may be accountable to the beneficiaries for the due administration of the affairs of the trust but that does not mean that he, as trustee, is not entitled to exercise all these powers, the trust property having vested in him, and he being therefore in a position to exercise 856 SUPREME t. :0URT REPORTS [1955] all these powers in relation thereto. The same would be the position if he were an executor or an administrator of an estate, in possession of the estate of the deceased as such. The property of the deceased would vest in him though his powers of dealing with the same would be circumscribed either by the provisions of the · testamentary instrument or the limitations imposed upon the same by law.
All these circumstances would certainly impose limitations on his powers of dealing with the properties but that does not detract from the position that he is entitled to deal with those properties and exercise all the powers in relation thereto though with the limitations imposed upon them by reason of the capacities which he enjoys. It follows, therefore, that, though enjoying different capacities, he is the same individual who functions though in different capacities and conducts his affairs in the various capacities which he enjoys but as a single individual. He is not one individual when he is acting in his own individual capacity; he is not another individual when he is acting as a trustee of a particular estate and he is not a third individual when he is acting as an executor or administrator of a deceased person.
In whatever capacity he is acting he is the same individual dealing with various affairs with which he is concerned though with the limitations imposed upon his powers of dealing with the properties by reason of the properties having vested in him in different capacities. I am therefore of the opinion that the instrument in question does not comprise distinct matters but comprises one matter only and that matter is the execution of a general power of attorney by the donor in favour of the donees constituting the donees his attorneys to act for him in all the capacities which he enjoys. The instrument in question cannot be split up into separate instruments each comprising or relating to a . distinct matter in so for as the different capacities of the donor are concerned.
A general power , of attorney comprises all acts which can be done by the donor himself whatever be the capacity or capacities which he enjoys and cannot be split up into individual acts which the donor is capable of performing and which he appoints his attorney to <lo for him and in his name and on his behalf. It is within the very nature of the general power of attorney that all the distinct acts which the donor is capable of performing are comprised in the one instrument which is executed by him, and if that is the position, it is but logical that whatever acts the donor is capable of performing whether in his individual capacity or in his representative capacity as trustee or as executor or administrator are also comprised within the instrument and are not distinct matters to be dealt with as such so as to attract the operation of section 5.
I am therefore of the opinion that the conclusion reached by the majority Judges in the High Court of Judioture at Calcutta was correct and would accord-ingly dismiss this Appeal with costs. BY THE CouRT. --In accordance with the opinion of the majority the Appeal is allowed with costs here and in the Court below. JUGAL KISHORE RAMESHWARDAS v. MRS. GOOLBAI HORMUSJI [BHAGWATI, VENKATARAMA AYYAR and B. P. SINHA JJ. ) Bombay Securities Contracts Control Act, 1925 (Bombay Act Vil/ of 1925)-Ss. 3( 4) and 6-Sale and purchase of securities by appellant on behalf of resffondent-Dispute between the parties whether appellant was acting within his authority wl1en he purchased the shares-Relationship between the patties that of principal and agent and, not that of seller and purchaser-Whether falls within purview of s.
6-Contract notes sent by brokers to their constituent-Mere inti-mations by brnkers to constituent-That contract had been entered into -Arbitration agreement-Essentials thereof-Rules framed by Native Share and Stock Brokers' Association-Complete code by themselves- Rule 167-Whether contract notes void thereunder. The appellant-a share-broker carrying on business in the City of Bombay ar. d a member of the Native Share and Stock Brokers' 17-84 S. C. lndia/59
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