JUDGMENT - Chagla, C.J.

[1] The question that arises for our determination on this reference made by the Chief Controlling Revenue Authority under Section 57, Stamp Act is a very short one. On 24 8-1948, on agreement for lease was entered into between the Trustees of the Port of Bombay and one Anandji Haridas. Pursuant to this agreement, a lease was executed on 19.4 1949. It is common ground that the agreement for lease of 24 .8.1948, did not effect a present demise. The agreement to lease was stamped ad valorem under Article 35, Stamp Act, and the lease of 19-4-1949 was stamped only with annas 12. The question that we have to consider is whether the document of 19-4-1919, was properly stamped.

[2] It is not necessary to consider on this reference a certain fact which has been mentioned in the opinion of the Chief Controlling Revenue Authority, because there is no dispute between the parties with regard to it, namely, that a certain sum was deposited by Anandji Haridas with the Trustees of the Port of Bombay for the due performance of various obligations under, taken by him, under the lease.

[3] Now, in order to appreciate the rival contentions put before us, it is important to look at the scheme of the Stamp Act with regard to lease. The article that deals with lease is Article 36 and under that article a lease includes an under lease or sub-lease and any agreement to let or sub-let; and it is clear that only those documents fall under Article 35 which effect a present demise. There is also another article -- Article 5-A --which deals with agreements to lease. The second column does not state what duty is payable on agreements to lease: the Legislature has only referred the Stamp Authorities to lease: Article 35. Now, it is clear that, in law, an agreement to lease may effect a present demise or it may not. If it effects a present demise, than an agreement to lease would fall under Article 35; if it does not effect a present demise, then an agreement would fall under Article 5 which deals with agreements or memoranda of agreement and would fall under Article 5 (c) which deals with all those cases which are not dealt with under Article 5 (a) or Article. 6 (b). Now, in the present case, the agreement to lease of 24-8-1948, not effecting a present demise fell under Article 5 (e), and it should have been stamped with annas 19 which is the proper stamp duty in the State of Bombay. Instead of stamping it with annas 12 it was stamped as if the agreement to lease fell under Article 35. Reliance is placed by the patties to the lease upon the proviso to Article 35, and that proviso is in the following terms:

"Provided that, is any case when an agreement to lease is stamped with the ad valorem stamp required for a lease, and a lease in pursuance of such agreement is subsequently executed, the duty on such lease still not exceed eight annas."

Therefore, obviously, the purpose o! this proviso is to relieve the subject from paying twice over on a document which has already been subjected to tax as falling under Article 35. Now, what is con-tended on behalf of the Chief Controlling Authority is that "an agreement to lease" in this proviso should be construed as an agreement to lease which effects a present demise". According to Mr. Joshi, who appears for the Authority, it is only when an agreement to lease effecting ft pro-sent demise is stamped as required by Article 35 that relief is given to the party if a tease is subsequently executed pursuant to the agreement, and, in that ease only, the lease is to be stamped with the stamp fee of annas 12. Now, in asking us to accept this construction, what Mr. Joshi wants us to do is to read the proviso as if that words use by the Legislature were "Provided that in any case when an agreement to lease is required to be stamped with the ad valorem stamp required for a lease". But the language used by the Legislature is not is required to be stamped" but is stamped". Therefore, what the Legislature is cons

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