Judgment

YOGESHWAR DAYAL, J

( 1 ) CIVIL No. 3477 of 1992 and other connected matters raise a common question of law under the Bombay Stamp Act, 1958 (hereinafter referred to as the Act ).

( 2 ) THE question involved in all these matters is whether a consent decree whereunder the title to immovable properly is conveyed expressly falls under the definition of "conveyance" under Section 2 (g) or an "instrument" under Section 2 (l) of the Act or such consent decree falls outside the ambit and scope of the definition of "conveyance" or "instrument" under the Act.

( 3 ) ACCORDING to the appellants before us the consent decree is not covered by the definition of "conveyance" or "instrument". The consent decrees in all these matters are almost identical.

( 4 ) THE Single Judge of the High court while construing the aforesaid definitions held that the consent decree does not fall in any of these definitions and, therefore, such a decree is not liable for payment of stamp duty.

( 5 ) THE State of Maharashtra being dissatisfied with the judgment of the Single Judge dated 10/12/1990 went up in Letters Patent Appeal. The division bench took the view that having regard to the recital in the consent decree itself, the consent decree on its true interpretation, is a conveyance itself and is covered by the definition of "conveyance" under the Act and at any rate the consent decree fulfils all the requirements of transfer under the consent decree in favour of the vendees i. e. the writpetitioners/appellants before us and such a consent decree would be liable to stamp duty under Entry 25 of Schedule I to the Act.

( 6 ) THE Single Judge while holding the opposite view to the view of the division bench had relied on the decision of the Bombay High court in Sharanbasappa Tippanna Indi v. Sanganbasappa Sridramappa Shahapur.

( 7 ) IT will be noticed that Sharanbasappa case arose out of a reference made by a Subordinate Judge of Bijapur under Section 60 of the Stamp Act. This reference was heard by a full bench. The question which arose before the full bench was as to whether a consent decree creating a charge on the immoveable property which was not subject-matter of the suit requires the stamp. The suit itself was filed for recovery of loan advanced. The suit was compromised in terms of the compromise and the defendants therein agreed that a certain sum was to be paid by them and that sum was charged on immoveable property belonging to the defendants and consequently a charge was created by consent of the defendants. The immoveable property was not the subject-matter of suit. The question that fell for consideration before the full bench was as to whether in such circumstances the consent decree is an instrument whereby for the purpose of securing existing or future debt one person creates in favour of another a right in respect of a specified property. Under the decree a charge was created and this was by the agreement between the parties. The full bench took the view that the decree of such a nature is not liable to stamp duty.

( 8 ) THE argument before the full bench was that the consent decree itself fell within the definition of "mortgage deed" but the full bench took the view that the definition was not wide enough to include such a decree. The full bench was also influenced with the other provisions of the Indian Stamps Act, 1899 including Section 29 thereof which did not contemplate a consent decree as a mortgage deed. The full bench had no occasion to consider the consent decree like the present case where such a decree was to operate as a "conveyance". It was thus not an authority for the proposition that where immoveable property is in fact transferred under the consent decree, whether it amounts to "conveyance" within the meaning of the Act or not.

( 9 ) IT may be stated that the definition of "conveyance" under Section 2 (g) of the Act came to be amended by the Maharashtra Act No. 27 of 1985. This amendment was brought into force on 10/12