v. S. Deshpande, J.

( 1 ) THE question REFERRED TO to us for opinion under section 57 (2) of the Indian Stamp Act, 1899 is:-

"whether the instrument (Annexure A) is a deed of declaration of trust, chargeable to stamp duty under Article 64 of Schedule I-A of the Indian Stamp Act or is a deed of settlement within the meaning of section 2 (24) of the Act ?". The deed opens with the following recitals :-

"whereas the creation of a Charitable Trust for the real benefit of the public has been the dream of the Founder; And Whereas the Founder has accordingly created a Charitable Trust having appointed himself as first Trustee and has dedicated and endowed upon Trust his various assets and. properties,. . . . . . . . . . . . . . . it is considered desirable to execute a formal deed of Trust".

( 2 ) THE Founder then proceeds to declare that the business and the properties described in the deed shall no longer be the personal business or property of the Founder or any other person but shall be held in Trust. The objects of the Trust are of a public and charitable nature. The Founder of the Trust is to be sole trustee with power to appoint co-trustees who will have full power to manage the income of the trust properties.

( 3 ) WHILE the Founder trustee contends that the deed is a declaration of Trust and as such chargeable only to a comparatively small stamp duty not exceeding the maximum fixed under Article 64 of Schedule 1-A of the Stamp Act, the Revenue is of the opinion that the deed is chargeable to stamp duty as an instrument of settlement. under Article 58 of the said Schedule, the duty being the same as the duty on a Bond for a sum equal to the amount or value of the property settled in the deed of settlement. Since the dispute has arisen mainly because of the smaller and the higher stamp duties payable under these two articles, it may be mentioned here that even a higher scale of stamp duty is chargeable for a conveyance under Article 23 of the Schedule. The legislative policy seems to be that a conveyance such as the sale or a gift being outright transfers either for valuable consideration or for love and affection, the stamp duty on them should be high under Article 23 and 33. Next comes the settlement which is defined in section 2 (24) of the Stamp Act which is as follows :-

"settlement" means any non-testamentary disposition, in writing, of movable or immovable property made- (a) in consideration of marriage, (b) for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or (c) for any religious or charitable purpose; and includes an agreement in writing to make such a disposition and, where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition.

( 4 ) AS the settlement is different from an ordinary transfer or conveyance and is actuated with a desire to benefit some one other than the settlor, the stamp duty on it is half of the duty on conveyance. Last comes the Trust which is also made for the benefit of other by the creator of the Trust. The scope of the Trust is more limited than the scope of the settlement and the stamp duty chargeable on an instrument of trust is, therefore, even less than the one chargeable on an instrument of settlement.

( 5 ) THE word "trust" is not defined in the Stamp Act, 1899. It may, therefore, be taken to have been used in the Stamp Act in its popular sense similar to its meaning in the Indian Trusts Act, 1882. Section 1 of the Indian Trusts Act, 1882, states that "nothing herein contained. . . . . . . . . applies to public or private religious or charitable endowments". It would appear, therefore, that religious or charitable endowments, whether public or private, are excluded from the purview of "trust" chargeable to duty under Article 64 of Schedule I-A of the Stamp

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