Conveyance and release--Distinction.

M. ANANTANARAYANAN, C. J. : The case referred to us under Section 57 of the Indian Stamp Act involves this question whether a particular document is an instrument chargeable as a conveyance under Art. 23 of Schedule I (previous Art. 19 of Schedule 1-A) or as release under Art. 55 of Schedule I of the Indian Stamp Act. We have had the benefit of elaborate arguments on this matter, and, apart from the facts to which we shall presently refer, and which are explicit and clear, the question also involves the interpretation of what amounts to a release in law as distinguished from a conveyance or transfer of property for value; there are one or two leading authorities available on this aspect, to which also we shall make a brief reference.

2. In order to have a clear picture of the preceding facts, we might immediately take up the settlement deed dated 5-4-1955 which is among the papers and which involves one N.K. Patel and his two sons K.N. Patel (first son) and R.N. Patel (second son). Under this settlement deed, it is recited that there are certain immoveable properties, of which the settlor (N.K. Patel) and his first son (K.N. Patel) are co-owners and joint tenants, with a right of survivorship reserved to the surviving party. The settlor out of natural love and affection for the second son donee, makes this settlement of his undivided half share in the properties, the other co-owner (the first son) joining in the instrument as thereby, the right of survivorship comes to an end The document proceeds to state that the donee will thereafter hold the property along with the first son as tenants-in-common in equal shares.

3. The next document that we have to scrutinise is the document dated 12-7-1957, which is the instrument under analysis. This instrument refers to a mortgage dated 14-7-1955 and the releasee (first son) assigns this mortgage to the releasor (second son), which forms the element of consideration for the release itself. We need not further dwell on this aspect. The learned counsel for the State (Sri Ramaswami) does not contend that a release deed is valid only when it is gratuitous. Admittedly, a release deed can be validly executed also for some benefit accruing to the releasor simultaneously. After having recited this the donee (second son) (releasor) purports to release his undivided half share and interest in the entire property, in favour of the first son (releasee). The document proceeded to state that the amount secured under the mortgage (Rs. 51,250) forms the consideration, in the sense that this half share itself is valued at about that figure. Admittedly, the entire estate was acquired for a much less amount several years earlier, and both the co-owners claim to have spent moneys on the estate, resulting in a considerable enhancement of its value.

4. The question that falls to be decided by us is whether this instrument must necessarily be construed as amounting to a conveyance, and assessed for stamp as such, or could be accepted as a release under Article 55 of Schedule I. If is not in dispute that the nomenclature is not decisive not the language which the parties may choose to employ, in framing the document. What is decisive is the actual character of the transaction, and the precise nature of the rights created by means of the instrument.

5. Of the several authorities that have been referred to before us, the decision of the Pull Bench in Board of Revenue v. Murugesa Mudaliar, 1955-2-Mad LJ 166, : (AIR 1955 Mad 641) (FB) would appear to be most relevant, and indeed, virtually decisive of the issue. There also the Full Bench was concerned with a transaction between co-owners, with regard to property under which these co-owners held undivided shares, and there had been no division by metes and bounds. The relevant canon was stated by Rajamannar C.J. in the following form :-

"In such a case there need be no conveyance as such by one of the co-owners in favour of the other co-owners. Each co-owner in