V. BHARGAVA, J. :- This Reference has been made by the Chief Controlling Revenue Authority under Section 57 of the Indian Stamp Act in respect of a document because that Authority felt a doubt as to whether the stamp duty on the instrument was chargeable as a Settlement of as a Trust. The following three questions have been drafted by the Authority on which our opinion has been sought :

(1) Whether the draft deed under reference is a "Declaration of Trust" chargeable under Art 64, Sch. I-B of the Stamp Act; or

(2) whether it is a "Settlement" as defined in Section 2(24)(b) of the Act, chargeable tinder Art. 58, Sch. I-B of the Act.

(3) if it is neither, under what other category does it fall under the Stamp Act for purposes of charging stamp duty.

(2) We may at the outset mention that it appears to us that in framing the questions for opinion the Chief Controlling Revenue Authority appears to have proceeded on the incorrect basis that the instrument under the Stamp Act can be either a deed of trust or a deed of settlement only and not both. The word "Settlement" is defined in S. 2(24) of the Act as follows :

"Settlement means any non-testamentary disposition, in writing, of movable or immovable property made :

(a) in consideration of marriage,

(b) for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or

(c) for any religious or charitable purpose;

and includes an agreement in writing to make such a disposition and, where any such disposition had not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition."

This definition of the word "Settlement" itself make it clear that even instruments which are executed containing a declaration of trust can be settlements provided the conditions laid down earlier in that definition are satisfied. The question in these circumstances that falls for our opinion is whether this particular instrument, to which this Reference relates, is a "Settlement" or not, even though it may, on the face of it, be a deed of Trust. Under Section 6 of the Stamp Act, if a deed of Trust also amounts to a Settlement, the stamp duty will he chargeable on it as an instrument of Settlement under Art. 58 of the Sch. I-B of the Act and not as an instrument of Trust under Art. 64 of Sch. I-B of the Act.

3. We have heard learned counsel for the parties, and we have come to the conclusion that this instrument, to which this Reference relates, must be held to be a deed of Settlement within the meaning of that word as defined above.

4. The instrument relates to two houses situated in the city of Allahabad. In the instrument the executant has mentioned that he is executing it for the benefit of his three daughters as well is his two sons and other children. The object of executing the instrument is indicated as being the desire of settling on trust the income of the two houses for the purpose of carrying out the wishes of the donor as described. In the main body if the instrument, the donor granted to the trustee for a period of twenty years the two properties mentioned above for him to have and hold the same in trust for the objects of the Trust. The donor specifically relinquished for the time being all claims to any interest in these properties. It was recited that the children of the donor were all minors and the donor was desirqus that his children should have some financial security by the rime each of them attained majority.

The main provisions contained in the instrument were that from the income of the property the taxes payable to the Municipal Corporation had to be met so as not to exceed one-fourth of the rental income and the trustee was to set apart another one-fourth of the rental income for the purpose of reconstructing one of the houses which was in a very bad condition and for maintaining it in a proper co