A reference under Section 57 of the Stamp Act, 1899 must be based on an actual case and not a hypothetical case.

M. ANANTANARAYANAN, OFFG. C.J. :- The matter referred to us is under S. 57 of the Indian Stamp Act, 1899, and the question for decision has been phrased as follows :-

"Whether the instrument in question is liable to be stamped even if it were not to be attested and whether instruments in general are to be stamped on execution notwithstanding that other conditions which validate the transfer of rights which the instrument purports to make are not present? Whether the instrument in question is chargeable as a mortgage deed, under Art. 40(b) of Schedule I of the Indian Stamp Act?"

2. As we shall presently make it clear, the facts establish beyond the shadow of any doubt or controversy that there is no executed document of any kind in the present case. There is only a draft of a proposed document, which may or may not come into existence at all. The content of the reference to us is that on the assumption or supposition that this document might be executed as a deed of mortgage without attestation, the issue should be determined whether the Full Bench decision of this court in Crompton Engineering Co. Ltd. v. Chief Controlling Revenue Authority, Madras, ILR (1953) Mad 566 : (AIR 1953 Mad 764 FB), which held that such a document was not a mortgage deed and was not therefore liable to be stamped as a mortgage deed, is correct or incorrect. The facts, which are not in dispute, may be briefly set forth, for our present purpose, as follows :

3. The matter has arisen on account of certain correspondence between the Madras Industrial Investment Corporation, who may be termed the party initiating the reference or enquiry, and the Refinance Corporation of Industry Ltd., Bombay. As will be clear from the statement of the case referred for opinion the Secretary of the Madras Industrial Investment Corporation sought the opinion of the Collector of Madras under Section 31, with regard to the unsigned draft of the instrument proposed to be executed. It is further clear that, not merely has such an instrument not been executed so far, but that the explicit understanding was that it was not to be attested by any witness. The point for consideration was said to be whether such an unattested document, evidencing a mortgage will be liable to stamp duty, as such, or whether, as contended by the Madras Industrial Investment Corporation, whatever its operational effect might be, it will not be liable for stamp duty as a mortgage, on the authority of the Full Bench decision.

4. On this point, it is necessary, to refer to two sections of the Stamp Act, and to certain decisions appertaining thereto, for, it appears to us that there is much to be said for the argument that we are being asked to decide a matter which is not an actual case, but a pure hypothesis. Undoubtedly, and we agree with the learned Government Pleader on that aspect, S. 31 of the Art, clothes a party like the Madras Industrial Investment Corporation with a power to obtain the opinion of the Collector as to the proper stamp duty to be levied even without any instrument actually executed or attested; it is open to a party to seek such an opinion upon a mere draft of an instrument, that might never come into existence in the future. Once such an opinion is sought, the Collector has to exercise his powers under S. 56 of the Act, and, if he feels a doubt, he makes a reference to the Chief Controlling Revenue authority, which has the power of review. Under S. 57, the Board of Revenue has the undoubted statutory power to make a reference of the kind that has come up before us.

5. Even so, we shall refer to certain decisions in support of the view that such a reference must be based upon an actual case; it cannot be a mere abstract question, referred for determination upon a hypothesis, which may never fructify into actuality.

6. The relevant decisions on this aspect are to be found in Stamp Reference by the Board of Revenue, ILR 37 All 125 : (AIR 1915 All 33 FB), and two other decisions in