( 1 ) RAJA Mohammad Amir Ahmad Khan of Mahmudabad in the district of Sitapur executed a deed of waqf. Having duly signed it and got it attested, he presented it on 15-9-1948, under section 31, Stamp Act, (hereinafter referred to as "the Act") to the Deputy Commissioner (Collector) of Sitapur for his opinion as to the stamp duty with which it was chargeable. The Deputy Commissioner, being himself in doubt, referred the matter to the Board of Revenue under Section 56 (2) of the Act. The matter remained pending before the Board for a considerable length of time but eventually it was held that the document was a deed of settlement as defined in Section 2 (24) of the Act and as such liable to duty in accordance with Article 58.

( 2 ) ON 29-10-1951, the Deputy Commissioner held that Rs. 85,598/7/- were payable as stamp duty in respect of the deed and ordered that the Raja should deposit the said amount within 15 days. A notice to this effect was served on the Raja on 10-11-1951, and he moved a petition in this Court under Article 226 of the Constitution but that was rejected in November 1952 as being premature.

( 3 ) ON 2-2-1954, a further notice was served upon the Raja directing him to deposit Rs. 85,598/7/together with a penalty of Rs. 5/- within one month, otherwise proceedings would have to be taken under Section 48 of the Act. The Raja again moved this Court on 1-3-1954, alleging that the imposition of a stamp duty of Rs. 85,598/7/- and of the penalty of Rs. 5/- was against the law and was ultra vires of the Collector acting under Section 31 of the Act. It was accordingly prayed that a writ of prohibition, or certiorari or other appropriate writ be issued under Article 226 of the Constitution prohibiting the Collector from realising the duty and penalty. It was also prayed that the order assessing the duty and imposing the penalty, be quashed.

( 4 ) WHEN the petition came up for hearing before a Division Bench, it was noted that the case of - chunni Lal Burman v. Board of Revenue, U. P. , 1951 All 851 (AIR V 38) (A) was directly in point but, in view of certain observations made by Rankin C. J. , in -- re, Cook and Kelvey, 1932 Cal 736 (AIR V 19) (SB) (B) and by Patanjali Sastri J. , in -- sethuraman Chettiar v. Ramanathan Chettiar, 1946 Mad 437 (AIR V 33) (C), it was considered desirable that the matter be reconsidered. This Full Bench has accordingly been constituted.

( 5 ) THE sole question which we are called upon to consider in this case is whether, when an instrument, which has already been "executed" within the meaning of that term as defined in section 2 (12) of the Act, is presented before the Collector for his opinion under Section 31 of the act, the Collector can if he is of opinion that the instrument requires stamp duty, which has not been paid or has only partly been paid impound the instrument under Section 33 of the Act.

( 6 ) THE relevant portions of Sections 31, 32 and 33 of the Act read as follows :

"31. (1) When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding five rupees and not less than eight annas) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which in his judgment, the instrument is chargeable. "

. . . . . . . . . . "32. (1) When an instrument brought to the Collector under Section 31 is in his opinion, one of a description chargeable with duty and (2) the Collector determines that it is already fully stamped, or (b) the duty determined by the Collector under Section 31, or such a sum as, with the duty already paid in respect of the instrument, is equal to the duty so determined, has been paid, the collector shall certify by endorsement on such instrument that the full duty (stating the amount)with which it is chargeable