An instrument declaring the pre-existence of a trust coupled with transfer of management from one set of trustees to another is not a conveyance and the stamp duty leviable thereon is governed by Article 47-A of Schedule I to the Indore Stamp Act, 1907.

A. P. SEN, J. :- The Chief Controlling Revenue-authority, Madhya Pradesh (hereinafter referred to as 'the Revenue-authority') has stated this case under Section 55(1) of the Indore Stamp Act (No. II of 1907) (hereinafter referred to as 'the Act'), referring the following questions for the opinion of this Court :-

(1) Whether the trust-deed dated 11-9-57, as on record, is to be held to be a 'declaration of trust' of or concerning any property, or a 'conveyance' within the meaning of Section 2(9) of the Act; and

(2) Whether the stamp duty leviable on the document will be governed by Article 47-A of Schedule I to the Act or by Article 17 of the Schedule.

2. The circumstances giving rise to this reference, briefly stated, are these. By a deed executed on 11th September 1957, seven persons, describing themselves as the Panchas managing the affairs of 'Shri Digambar Jain Tera Panthi Mandir of Indore' and its properties, transferred the management thereof to a committee of eleven trustees named in the deed, defining their functions, powers and duties. The deed recited, inter alia, that after the constitution of this committee of management, the entire property of the temple valued at Rs. 1,18,651.00 would no longer be in the supervision and control of the Panchas but the management thereof would stand 'transferred' to the trustees. It was engrossed on a stamp-paper worth Rs. 18.75 Paise and was presented by the trustees before the Sub-Registrar, Indore for registration. According to the Sub-Registrar, the deed amounted to a 'conveyance' and, as such, should have borne stamp worth Rs. 1,462.50 Paise. Therefore, under Section 37 of the Act, he forwarded the deed to the Collector along with his opinion, for an adjudication as to the proper stamp duty payable thereon. The Collector, agreeing with the Sub-Registrar, held the instrument to be deficiently stamped; and, upon his determination that it was chargeable with a duty of Rs. 1,462.50 Paise as a deed of conveyance, directed under Section 39(l)(b) of the Act that the trustees should make good the deficit of Rs. 1,443.75 Paise, and since the matter concerned a trust, a nominal penalty of Rs. 5.00 was imposed. Being aggrieved by the decision of the Collector, the trustees preferred a revision before the Board of Revenue, Madhya Pradesh, which has been invested with the powers of the Chief Controlling Revenue authority. The members of the Board of Revenue dealing with the revision as the Chief Controlling Revenue-authority for the time being expressed conflicting views on the question. Shri K. Radhakrishnan, President of the Board of Revenue, held that the document was a conveyance as defined in Section 2(9) of the Act and not a mere declarations governed by Article 47-A of Schedule I to the Act. His successor-in-office Shri Y. Bhargava reviewed that decision at the request of the trustees for the purpose of making a reference and found that there were errors apparent on the face of the record. The result was that the revision was re-heard by Shri R. C. Rai Poddar, President, Board of Revenue, who was of the view that the deed in its recitals tends to show that what was intended by the Panchas was not merely to make a declaration of trust but also to transfer their rights of ownership in specific trust property. In other words, the learned President indicated that the document in question effected both a declaration of trust as well as a conveyance of the trust property to the trustees, and, therefore, being an instrument comprising of two distinct transactions, it was governed by Article 47-A of Schedule I to the Act. However, since the matter regarding the proper stamp duty leviable was not free from doubt, he has made this reference.

3. The answer to the questions referred depends on whether the instrument in question was a conveyance within the meaning of Section 2(9) or one making a declaration of trust under Article 47-A of Schedule I to the Act.

4. The recitals in the instrume