ORDER

1. This is a reference u/s 57, Stamp Act (Act 2 of 1899), by the Board of Revenue for decision by this Court of the question whether a certain document is a ' bond" within the meaning of Clause (c), Sub-section (5) of Section 2, Stamp Act, chargeable under Article 15 or a mortgage of crops chargeable under Article 41, or a simple agreement for sale of goods and merchandise within the purview of Exemp. (a) to Article 5, Stamp Act. The instrument in question was executed by one Thakuri Singh in favour of a firm styled Messrs. Kila Chand Deva Chand & Company of Bombay, proprietors of Kesar Sugar Works, Baheri. The latter had advanced to the executant of the instrument a sum of Rs. 40 apparently some time before the execution of the document. The first stipulation contained in the document expressly mortgages certain sugarcane crop belonging to the executant and standing in certain fields mentioned in the document. The deed proceeds to lay down that the executant would supply the aforesaid sugarcane crop exclusively to Kesar Sugar Works at a certain rate. Then follow a number of covenants incidental to the supply of the sugarcane crop as agreed. One of the covenants is:

That the amount remaining due after supplying the whole of the sugar-cane crop will bear interest at the rate of annas 12 per mensem from the date of this document to the date of repayment, and the next harvest of sugarcane belonging to any of my fields in the village will remain mortgaged and will not be transferred to anyone else unless the whole of the amount, including interest, is repaid out of the price of sugarcane....

2. There are some other stipulations as regards the time of payment, etc. "Mortgage-deed" is defined in Section 2(17) so as to include 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.

3. Article 41 makes specific provisions for stamp duty on mortgages of crops. If there had been no other complication and the instrument had evidenced a transaction whereby the executant hypothecated his sugarcane crop to secure the payment of the sum advanced to him, there could be no question as regards the nature of the instrument. It would have been a mortgage deed in respect of a crop, as provided by Article 41. As already indicated, however, the deed contains a specific stipulation by which the executant undertakes to supply the sugarcane crop therein referred to exclusively to Kesar Sugar Works. Such a stipulation is not an integral part of the: transaction of mortgage embodied in the deed. That is to say, if this stipulation had found no place in the instrument, it would nevertheless have been a mortgage] deed. This aspect of the case is, to our minds, very material, in view of the definition of "bond" in Section 2(5), Stamp Act. Therein "bond" is so defined as to include among others any instrument so attested whereby a person obliges himself to deliver grain or other agricultural produce to another. The instrument in question in this case is attested in the manner mentioned in Section 2(5), Stamp Act. It is, therefore, clear that the particular covenant by which the executant agrees to deliver his sugarcane crop to Kesar Sugar Works is a bond, as defined in Section 2(5), Stamp Act, and is chargeable as such under Article 15. This characteristic of the instrument is wholly apart and separable from its characteristics as a mortgage. As already stated, if this covenant is deleted from the instrument its character as a mortgage deed will remain unaffected.

4. In this view, it is clear to us that the instrument in question fills the dual character of a mortgage and a bond, as defined in Section 2(17) and Section 2(5), respectively, of the Stamp Act. The necessary result of this view is that Section 6, Stamp Act, becomes appl