MUKHERJEE, J. :- This is a reference by the Board of Revenue, U. P., as the Chief Controlling Revenue Authority, under Section 57 of the Indian Stamp Act as amended by the U. P. Stamp (Amendment) Act, 1962 (hereafter referred to as the Act). The question for decision relates to the chargeability of stamp duty on a document dated November 18, 1964 executed by one Sri Padam Chand Jain of Agra, and it has arisen in the following circumstances.

2. Sri Padam Chand Jain, who is the sole proprietor of Prem Electric Press, Agra, executed the document in question on November 18, 1964 in favour of the State Bank of India, Agra (hereafter referred to as the Bank), with a view to obtain overdraft facility up to a maximum limit of Rs. 1,75,000 at any one time. The executant treated the document as a memorandum of agreement relating to deposit of title deeds and he, therefore, stamped the same with a duty of Rs. 504 under Article 6 (1) of Schedule I-B to the Act. When the document was presented for registration, the Sub-Registrar, Agra, held that it was a deed of simple mortgage on which a stamp duty of Rs. 3,937.50 P. was payable under Article 40 (b) of the same Schedule to the Act. He, therefore, impounded the document and forwarded it to the Collector for necessary action Tinder Section 38 (2) of the Act. The Collector who was doubtful as to the true nature of the document referred the case to the Board of Revenue under Section 56 (2) of the Act. The Board, in its turn, referred the case to this Court, as already noted for decision under Section 57 of the Act. The question referred to this Court is as follows:

"Whether the document under reference is a memorandum of agreement relating to deposit of title deeds within the meaning of Article 6 (1), Schedule I-B of the U. P. Stamp (Amendment) Act, 1962 or a mortgage deed within the definition of that term in Section 2 (17) of the Stamp Act and chargeable accordingly with a duty of Rs. 3,937.50 under Article 40 (b), Sch. I-B ibid."

Section 2 (17) of the Act defines "mortgage-deed" as follows:

"'Mortgage-deed' includes every instrument whereby, for the purpose of securing money advanced, or to be advanced, by way of loan, or an existing or future debt, or the performance of an engagement, one person transfers, or creates to, or in favour of, another, a right over or in respect of specified property;"

The essentials of a "mortgage deed" as defined in Section 2 (17) of the Act are: (1) that the instrument must be executed for the purpose of securing a loan or debt or to ensure the performance of an engagement, (2) the mortgagor must transfer or create a right to specified property in favour of the mortgagee, and (3) the transfer or creation of such right must be in accordance with law. The definition of mortgage in S. 58 (a) of the Transfer of Property Act is as follows:

"A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan and existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability."

According to this definition, a mortgage is the transfer of an interest in immovable property by way of security for a loan or a debt or the performance of an engagement which may give rise to a pecuniary liability.

3. It would be noticed that the connotation of mortgage involved in the definition given in Section 2 (17) of the Act is much wider; in the first place, it is not restricted to immovable property and, therefore, it includes pawn or pledge of movables, and secondly, it is not restricted to transfer of an interest or right to property; it also includes a charge which creates a right to property, that is, a jus ad rem, as distinguished for a jus in rem created by a mortgage under the Transfer of Property Act.

4. The levy of stamp duty on any instrument which answers the definition of a "mortgage-deed" will be governed by the provisions of the Ind