JUDGMENT

Iqbal Ahmad, Ag. C.J.

1. This is a reference u/s 60, Stamp Act, (Act II of 1899) by the Small Cause Court Judge of Pilibhit and the questions formulated by the learned Judge in the reference are as follows:

(1) Whether the instrument dated 16th May 1936 is a 'bond' as defined u/s 2(5), Stamp Act, chargeable with the duty provided for under Article 15, Schedule 1 of that Act or is it an agreement for or relating to the sale of goods or merchandise exclusively covered by exemption (a) of Article 5, Schedule 1?

(2) If it is a 'bond' whether the duty chargeable is that provided for under Article 15, Schedule 1, Stamp Act, or that provided for under Schedule 5, U.P. Agriculturists' Relief Act, even though the instrument is not registered, it being admitted that the executant is an 'agriculturist' within the meaning of the term u/s 2(1), U.P. Agriculturists' Relief Act?

2. The learned Judgefelt doubt as to the amount of duty chargeable in respect of the instrument dated 16th May 1936 and, accordingly, he, in conformity with the provisions of Section 60(1), Stamp Act, drew up a statement of the case and made the present reference. In the course of the reference he expressed the opinion that the instrument in question is a bond as defined u/s 2(5), Stamp Act, and is chargeable with the duty provided for under Article 15, Schedule 1 of the Act. He was further of the opinion that, as the instrument was not registered, Schedule 5, U.P. Agriculturists' Relief Act, was inapplicable. The reference was originally heard in part by a Bench of three Judges and, as there was difference of opinion among the Judges constituting the Bench, the case was ultimately referred to, and heard by, the present Bench consisting of five Judges.

3. While it is admitted on all hands that the instrument dated 10th May 1936 is so framed as to come within the description of more than one of the instruments specified in Schedule 1, Stamp Act, the question as to what articles of that Schedule are applicable to the instrument has been the subject of long debate and acute controversy. Further there is difference of opinion among the Judges constituting the present Bench about the true interpretation of Section 40, U.P. Agriculturists' Relief Act, and, lastly, there is unfortunately disagreement even about the interpretation of the instrument itself. The instrument is drawn up in Urdu language and an official translation of the same has been supplied to us. It runs as follows:

I, Moti...resident of...district Pilibhit do declare as under : I, the exeoutant, by hypothecating for the year 1344F. the sugarcane fields of eight Kham bighas, bounded and specified as below and situate in Mauza Beri Khera, Pargana Pilibhit, district Pilibhit, which I had cultivated and produced, have taken, by promising to sell the said sugarcanes, (upar moaheda farokhtgi nai shalcar mazlcur), a sum of Rs. 35 in cash, as a peshgi (advance-money) on an interest payable at the rate of 2. pies per rupee per mensem from L.H. Sugar Factories Ltd., Pilibhit, through the Mufaslis Gane Office; and that for such sums as I will take in future I shall abide by the following terms:

(1) That, in accordance with the quota, assigned by the creditor, I, the executant, shall supply, from the time of the start up to the finish of the work in the karkhana, the whole and the part of the sugarcanes - at least to the extent of the estimate for September 1934, in English weight and according to the legal rate - of the hypothecated sugarcane field...at such weighing machine of the karkhana in Pilibhit as will be assigned by the creditor aforesaid.

(2) That if, any day, the delivery of sugarcanes be not taken at the karkhana, on account of its not working or any other reason, I shall not get the sugarcanes peeled out that day, nor shall I take them to the weighing machine, but it is conditioned that I, the executant, shall be informed of it a day before.

(3) That all such sugarcanes, specified above, as will be supplie