( 1 ) THIS is a report by the Chief Inspector of Stamps in respect of a lease deed dated the 15th of september, 1947. By this lease deed an immovable property was let out to the respondents for a period of ninety years on rent. The stipulations relating to rent are contained in paragraph 1 clauses (a), (b), (c) and (d) of the instrument. According to the terms mentioned in the said lease the rent for the first twenty years i. e. , from 1947 to 1967, was stipulated to be Rs. 275/- per month. The total amount at this rate worked out to Rs. 88,600/ -. A rebate of Rs. 10,000/- was, however, allowed if a sum of Rs. 36,000/- was paid in advance on the date of the commencement of the lease, and the remaining amount of Rs. 20,000/- was paid by two equal instalments of Rs. 10,000/- each on the 1st February, 1948, and the 1st May, 1948. The whole amount of Rs, 56,000/- thus represented an adjustment towards rent for the entire period beginning from the 15th September, 1947, and ending on the 14th September, 1967. So far as the rent for the second period of 20 years, i. e. , 1967 to 1987, is concerned, it was also stipulated to be Rs. 275/- per month. With regard to the third period of twenty years, i. e. , 1987 to 2007, the rent was stipulated to be Rs. 310/- per month. For the last remaining period of thirty years i. e. , 2007 to 2037, the rent was stipulated as payable at the rate of Rs. 356/8/- per month.

( 2 ) ACCORDING to the report of the Chief Inspector of Stamps, the valuation of the Stamp on which the above deed should have been drawn up works out as follows:-i. On the advance rent of Rs. 36,000/- at Rs. 18/12/- per thousand under Article 35 (c ). . . . . . . . . . . . . . Rs. 675/ -. ii. On four times the average annual rent i. e. , Rs. 3208/3/6 x 4--Rs. 12,832/14/- at Rs. 18/12/- per thousand or part, under Articles 35 (a) (vi ). . . . . . . . . . . . . . . . . Rs. 243/12/ -. The document having been executed on Stamps of the value of Rs. 282/4/- only, there was deficiency in stamps to the extent of Rs. 636/8/--The trial Court should not, therefore, have admitted the document, without realising the deficiency of Rs. 636/8/- with a penalty of Rs. 6,365/- under Section 35 of the Stamp Act. Acting as Collector under Rule 325 of the U. p. Stamp Manual, the Chief Inspector of Stamps, therefore reported that this Court should make a declaration under Section 61 of the Stamp Act that the document is deficiently stamped by Rs. 636/8/-, and the said deficiency with penalty be realised from the party liable for the same.

( 3 ) HAVING heard the learned counsel for the parties, we are of opinion that the report of the Chief inspector of Stamps should be rejected.

( 4 ) A preliminary objection to the maintainability of this reference is taken on the ground that the provisions of Section 61 of the Indian Stamp Act 1899 (Act II of 1899) are not attracted in the present case. Section 61 (1) runs as follows:-

when any Court in the exercise of its civil or revenue jurisdiction or any criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring stamp, or upon payment of duty and a penalty under Section 35, the Court to which appeals lie from, or reference are made by, such first mentioned Court may of its own motion or on the application of the Collector, take such order into consideration. "

( 5 ) A perusal of the above provision of law clearly indicates that before Section 61 can be applied to a case there must be an order of a Court "admitting any instrument in evidence as duly stamped or as not requiring stamp, or upon payment of duty and a penalty under Section 35". These words indicate that the Court should have applied its mind to the question as to whether the stamp duty paid on an instrument is sufficient or not. An order made by a Court admitting an instrument without applying