The classification of documents for stamp duty purposes is governed by the form adopted by the parties and not the substance of the matter. The court cannot enter into the spirit of the law or read a number of documents together to determine the nature of the transaction.

( 1 ) THE questions referred to this Court for its opinion under Section 57 of the Indian Stamp Act by the Board of Revenue (Chief Controlling Revenue Authority) are these: 1. What is the correct classification of the two documents? 2. What is the correct stamp duty on each document

( 2 ) THE facts, which have given rise to this controversy arising in this enquiry, are shortly these. Applicant No. 1 executed a deed of simple mortgage for Rs. 1,00,000 (one lakh) on 6/06/1958 in favour of the Andhra Cotton Company, Secunderabad, paying a stamp duty of Rs. 1,500. 00, Two days thereafter, an agreement was executed by applicant No. 1 in favour of applicant No. 2 appointing the latter as his agent for managing the Ginning and Pressing Factory situated at Adoni, Kurnool District, engrossing this document on a stamp paper of Rs. 37-50 Np. , under Article 6, Schedule 1-A of the Indian Stamp Act. When this document was presented for registration, as the Registration Department had a doubt as to whether this instrument was really governed by Article 6 or whether this document together with the mortgage of 6/06/1958 would constitute a usufructuary mortgage chargeable to duty under Article 33 (a) of Schedule 1-A of the Indian Stamp Act, it referred the matter to the Board of Revenue, the Chief Controlling Revenue Authority.

( 3 ) THE Board of Revenue was inclined to the view that the two documents together constitute a deed of mortgage with possession. However, the Board submitted the case under Section 57 of the Indian Stamp Act for the decision of this Court.

( 4 ) IT is not disputed that proper stamp duty was paid on the document dated 6/06/1958 and it is not also contested that the stamp duty paid on the second document is proper if it is treated as agency agreement In order to judge whether the two documents read together evidence a transaction of a usufructuary mortgage, we shall look at the terms of the documents which have a bearing, on this enquiry.

( 5 ) UNDER the document dated 6/06/1958, interest was to be paid at the rate of twelve per cent per annum annually as it became due and if the accrued interest for any year was not paid on the due date, the mortgagee was entitled to call for payment of the entire principal together with the outstanding interest. Coming now to the second document, i. e. , the agreement, apart from the usual terms contained in the managing agency agreements, it was stipulated between the parties that the arrangement would be in force for a period of ten years with the option for its renewal for another period of ten years, even if the mort gage was discharged. It is also significant that there is no provision in the agreement dated 8/06/1958 en abling the agent to appropriate any part of the income towards the mortgage. Under Clause 4, he is required to keep regular accounts of the expenses incurred for working the factory and the income derived from the ginning and pressing section. The agreement contemplated payment of commission at the rate of Re. 1/- per naga of of cotton ginned and also at the rate of Re. 1/- per bale of cotton pressed in lieu of the services rendered by him, as a managing agent.

( 6 ) IT Is seen that none of the essentials of a usutructuary mortgage is present either in the later document or even in both the instruments taken together. The essence of a usufructuary mortgage is that the mortgaged wilt be authorised to retain possession until payment of mortgage-money to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage-money, or partly in lieu of interest, or partly in payment of the mortgage-money. As we have already mentioned, under the document of 8/06/1958, the agent is not authorised to adjust any part of the income towards interest or towards payment of the mortgage-money or partly in lieu of interest or partly in payment of the mortgage-