The legal point established is the interpretation of 'settlement' under the Indian Stamp Act and the determination of market value for stamp duty purposes.

Rajesh Tandon, J.

1. By the present writ petition, the petitioner has sought a writ of certiorari quashing the orders dated 18-4-1995 and 21-6-1993 by which the petitioner was directed to pay deficit stamp duty.

2. Briefly stated notice was issued to the petitioner under Section 47A of the Stamp Act, for realisation of the deficit stamp duty on a trust deed executed in respect of a property situated at Tilak Marg, Rishikesh and belonging to Mahant Ashok Prapanna of temple of Bharat Ji Maharaj. The petitioner objected for realisation of stamp duty on the ground that on 31-3-1992 trust was constituted and there is a temple over the land. The petitioner has submitted that the trust deed dated 31-3-1992 is not a settlement of property but it is a simple trust deed and is not amenable to the stamp duty.

3. The counsel for the petitioner has raised two points:

(1) That the document dated 31-3-1992 being a trust deed cannot amount to settlement.

(2) The market value assessed Rs. 400/-per sq. metre for the land and Rs. 1500/-per sq. metre for the building is wholly illegal.

4. The "settlement" has been defined under Section 2(24) of the Indian Stamp Act, as under:

(24) 'settlement'-- '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 settler 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 has not been made in writing, any instrument recording, whether by way of declaration of trust, or otherwise the terms of any such disposition.

5. From the above definition it will appear that any non-testamentary disposition in writing of movable or immovable property for any religious or charitable purpose shall be recorded as a 'settlement'. The stamp duty is payable on a 'settlement' in accordance with Article

58. True stamp duty payable on a 'settlement' is same as bond (No. 15) for a sum equal to the amount or value of the property settled:

6. The Apex Court in the case Goli Eswariah v. Gift Tax Commissioner, A. P., AIR 1970 SC 1722 has defined the transfer of property as under:

In this case we are not dealing with a deemed gift. Therefore we need not consider the scope of Section 4. Before an act can be considered as a gift as defined, there must be a transfer of property by one person to another. "Person" is defined as including a Hindu undivided family in Section 2(xviii). Section 2 (xxii) says that "property" includes any interest in property movable and immovable. Section 22(iv) defines "transfer of property" thus ;

Transfer of property" means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing includes--

(a) the creation of a trust in property;

(b) the grant or creation of any lease, mortgage, charge, easement, license, power, partnership or interest in property;

(c) the exercise of a power of appointment of property vested in any person, not the owner of the property, to determine its disposition in favour of any person other than the donee of the power; and

(d) any transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person.

7. Referring to the above judgment of the Apex Court in the case CCR Authority v. Banarsi Dass, , a Special Bench of Delhi High Court has held as under:

The expression 'settlement' has originated in the English law of real estate. Historically, 'settlement' was a device adopted by the English landed gentry to order the future destiny of their lands and to prevent them from being sold out of their family. The creation of a settlement determined the tenure by