# THE MEMBER, BOARD OF REVENUE v. ARTHUR PAUL BENTHALL

- **Citation:** [1955] 2 S.C.R. 842
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-member-board-of-revenue-v-arthur-paul-benthall-1518
- **Pages:** 16

## Headnote

1955
Odobtr 4.
842
SUPREME COURT REPORTS
THE MEMBER, BOARD OF REVENUE
v.
ARTHUR PAUL BENTHALL.
(l955J
(S. R.
DAs.
AcTING
C. J.,
BHACWATI,
VENKATARAMA
AYYAR, JuER IMAM and
CHANDRASEKHARA AIYAR JJ.J
The Indian Stamp Act (II of 1899), ss. 5 and 6-Expression
"disti11;t matters" in s. 5 and "description" in s. 6-I-Vhethe1 hav~
diffe1·ent connotations-Instrument in question-Whether comprised
distinct tnatters.
·
Held per S. R. DAs,
AcTINC C. J.,
VENKATARAMA
AYYAR,
J.\FER
l~:iAM
and
CttANDRASEKHARA
AIYAR
JJ.
(BH1\GWATI
J.
r'issenting) the contention that the word "matter" in s. 5 of the
l ndian Stamp Act was intended to convey the sarne n1eaning as the
word "description" in s. 6 is \Vithout force. In its popular sense,
the expression "distinct matters" would connote something different
from distinct "categories''. 'fwo transactions might be of the san1e
description, but all the same, they might be distinct.
When two words of different import are used in a statute in
two consecutive provisions, it cannot be maintained that they are
used in the same sense and therefore the expression
'~distinct
matters" in s. 5 and "description" in s. 6 have different connotations.
It is settled law that when two persons 101n in executing a
power of attorney, whether it comprises distinct matters or not will
depend on whether the interests of the executants
in the subject
matter of the power are separate or not. Conversely, if one person
holding properties in two different capacities, each unconnected with
the other, executes a power in respect of both of then1, the instrument
should logically be
held to
comprise
distinct
rnatters.
Held, that the instrument in question, Exhibit A,-the power of
attorney-comprised distinct matters within the meaning of s. 5 of
the Indian Stamp Act in respect of several capacities of the respon*
dent mentioned therein.
Per BttAGWATI J. (dissenting).-The fact that the donor of the
power of attorney exe<_:utes it in different capacities is not sufficient
to constitute the instrument, one comprising distinct inatters and
thus requiring to be stamped with the aggregate amount of the duties
with which separate instruments each comprising or relating to one
of such matters would be chargeable under the Act, within the mean*
ing of s. 5 of the Indian Stamp Act.
The instrument in question, Exhibit A, does not <umpr.~sc distinct matters but comprises one matter only and that matter is the
execution of a general power of attorney by the donor in favour of
2 S.C.R.
SUPREME COURT REPORTS
843
the donees constituting the donees his attorneys to act for him in
all the capacities he enjoys.
It is within the very nature of_ the general power of attorney
that all the distinct acts which the donor is capable of performing
are comprised in one instrument which is executed by him and
therefore whatever acts the donor is capable of performing whether in
his individual capacity or in his representative capacity as trustee
or as executor or administrator are also comprised within the instrument and are not distinct matters to be dealt with as such so as to
attract the operation of s. 5 of the Indian Stamp Act.
Secretary, Board of Revenue, Madras v. Alagappa Chettiar
I.L.R. [1937] Mad. 553, Ansell v. Inland Revenue Commissioners
[1929] 1 K.B. 608, Reversionary Interest Society v. Commissioners of
Inland Revenue [1906] 22 T.L.R. 740, Davis v. Williams
[1804]
104 E.R. 358, Bowen v. Ashley [1805] 127 E.R. 467, Goodson v.
Forbes 11815] 128 E.R. 999, Freeman v. Commissioners of Inland
Revenue [1870-71] L.R. 6 Exch. 101, Allen v. Morrison [1828] 108
E.R. 1152, Reference under Stamp Act, s. 46, [ 1886] l.L.R. 9 Mad.
358, Reference under Stamp Act, s. 46, f1891] l.L.R. 15 Mad. 386,
Reference under Stamp Act, s. 46, [1892] 2 M.L.J. 178, and Vidya
Varuthi v. Balusami, 48 I.A. 302, referred to.
C1v1L
APPELLATE
JuR1smcnoN :
Civil
Appeal
No. 159 of 1954.
Appeal hy Special Leave from the Judgment and
Order dated the 27th day of June 1952 of the Calcutta
High C

## Text

1955
Odobtr 4.
842
SUPREME COURT REPORTS
THE MEMBER, BOARD OF REVENUE
v.
ARTHUR PAUL BENTHALL.
(l955J
(S. R.
DAs.
AcTING
C. J.,
BHACWATI,
VENKATARAMA
AYYAR, JuER IMAM and
CHANDRASEKHARA AIYAR JJ.J
The Indian Stamp Act (II of 1899), ss. 5 and 6-Expression
"disti11;t matters" in s. 5 and "description" in s. 6-I-Vhethe1 hav~
diffe1·ent connotations-Instrument in question-Whether comprised
distinct tnatters.
·
Held per S. R. DAs,
AcTINC C. J.,
VENKATARAMA
AYYAR,
J.\FER
l~:iAM
and
CttANDRASEKHARA
AIYAR
JJ.
(BH1\GWATI
J.
r'issenting) the contention that the word "matter" in s. 5 of the
l ndian Stamp Act was intended to convey the sarne n1eaning as the
word "description" in s. 6 is \Vithout force. In its popular sense,
the expression "distinct matters" would connote something different
from distinct "categories''. 'fwo transactions might be of the san1e
description, but all the same, they might be distinct.
When two words of different import are used in a statute in
two consecutive provisions, it cannot be maintained that they are
used in the same sense and therefore the expression
'~distinct
matters" in s. 5 and "description" in s. 6 have different connotations.
It is settled law that when two persons 101n in executing a
power of attorney, whether it comprises distinct matters or not will
depend on whether the interests of the executants
in the subject
matter of the power are separate or not. Conversely, if one person
holding properties in two different capacities, each unconnected with
the other, executes a power in respect of both of then1, the instrument
should logically be
held to
comprise
distinct
rnatters.
Held, that the instrument in question, Exhibit A,-the power of
attorney-comprised distinct matters within the meaning of s. 5 of
the Indian Stamp Act in respect of several capacities of the respon*
dent mentioned therein.
Per BttAGWATI J. (dissenting).-The fact that the donor of the
power of attorney exe<_:utes it in different capacities is not sufficient
to constitute the instrument, one comprising distinct inatters and
thus requiring to be stamped with the aggregate amount of the duties
with which separate instruments each comprising or relating to one
of such matters would be chargeable under the Act, within the mean*
ing of s. 5 of the Indian Stamp Act.
The instrument in question, Exhibit A, does not <umpr.~sc distinct matters but comprises one matter only and that matter is the
execution of a general power of attorney by the donor in favour of
2 S.C.R.
SUPREME COURT REPORTS
843
the donees constituting the donees his attorneys to act for him in
all the capacities he enjoys.
It is within the very nature of_ the general power of attorney
that all the distinct acts which the donor is capable of performing
are comprised in one instrument which is executed by him and
therefore whatever acts the donor is capable of performing whether in
his individual capacity or in his representative capacity as trustee
or as executor or administrator are also comprised within the instrument and are not distinct matters to be dealt with as such so as to
attract the operation of s. 5 of the Indian Stamp Act.
Secretary, Board of Revenue, Madras v. Alagappa Chettiar
I.L.R. [1937] Mad. 553, Ansell v. Inland Revenue Commissioners
[1929] 1 K.B. 608, Reversionary Interest Society v. Commissioners of
Inland Revenue [1906] 22 T.L.R. 740, Davis v. Williams
[1804]
104 E.R. 358, Bowen v. Ashley [1805] 127 E.R. 467, Goodson v.
Forbes 11815] 128 E.R. 999, Freeman v. Commissioners of Inland
Revenue [1870-71] L.R. 6 Exch. 101, Allen v. Morrison [1828] 108
E.R. 1152, Reference under Stamp Act, s. 46, [ 1886] l.L.R. 9 Mad.
358, Reference under Stamp Act, s. 46, f1891] l.L.R. 15 Mad. 386,
Reference under Stamp Act, s. 46, [1892] 2 M.L.J. 178, and Vidya
Varuthi v. Balusami, 48 I.A. 302, referred to.
C1v1L
APPELLATE
JuR1smcnoN :
Civil
Appeal
No. 159 of 1954.
Appeal hy Special Leave from the Judgment and
Order dated the 27th day of June 1952 of the Calcutta
High Court in Matter No. 214 of 1951-A reference
under s. 57 of the Indian Stamp Act.
M. C. Setalvad, Attorney-General of India (B. Sen
and P. K. Bose, with him) for the appellant.
S. Chaudhury, (S. N. Mukherjee, B. N. Ghosh and
A. K. Basu, with him) for the respondent.
1955. October 4.
VENKATARAMA
AYYAR
J.-This
appeal raises
a
question under section 5 of the Indian Stamp Act II
of 1899. The respondent was, at the material time,
the Managing Director of Messrs Bird and Co. Ltd.,
and of Messrs F. \V. Heilgers and Co., Ltd., which
were acting as Managing Agents of several Companies
registered under the Indian Companies Act. He was
also a Director of a number of other Companies, and
had on occasions acted as liquidator of some Com1955
The Member,
Board of Revenue
v.
Arthur Paul
Benthall
1955
The Member,
Board of Revenue
'·
Arthur Paul
Benthall
Venkatarama
Ayyar ].
844
SUPREME COURT REPORTS
[1955 J
parnes, as executor or administrator of estates of deceased persons and as trustees of various estates. On
4-7-1949 he applied to the Collector of Calcutta under
section 31 of the Stamp Act for adjudication of duty
payable on a power of-attorney, marked as Exhibit A
in the proceedings, which he proposed to execute. By
that power, he empowered .Messrs Douglas
Chisholm
Fairbairn and John James Brims Sutherland
jointly
and severally to act for him in his individual capacity
and also as executor, administratoi:,
trustee,
managing agent,
liquidator
and all other
capaCit1es.
The
Collector referred the matter under section
56(~) of
the Act to the decision of the Chief Controlling Revenue Authority,
who eventually
referred
it
under
section 57 to the High Court of Calcutta stating his
own opinion that the stamp duty was payable on the
power
"for
as
many
respective
capacities
as
the
principal
executes
the. power".
The reference
was
heard by a Bench
consisting of
the
Chief Jmtice,
Das, J. and S. R. Das Gupta, J., who differed in their
opinion. The learned Chief Justice with whom Das, J.
agreed,
heir!
that the
different
capacities
of
the
executant
did
not constitute distinct matters
for
purposes of section 5 of the Act, and that the proper
duty payable on
the instrument was
Rs.
IO under
article 4S(d) of Schedule 1-A of the Stamp Act as
amended by section 13 of Bengal Act III of 1922. S. R.
Das Gupta, J. · was of the opinion that the different
capacities of the executant were distinct matters for
the purposes of section 5, and
that the instrument
was chargeable with the aggregate amount of duty
payable if separate instruments were executed in respect of each of those capacities. In
the result, the
question was answered in accordance with the opinion
of the majority in favour of the respondent.
Against
that decision,
the Board of Revenue,
West
Bengal
has preferred this appeal by special leave, and contends that the instrument in question comprises distinct matters,
and
must be stamped
in accordance
with section 5.
The statutory provisions bearing on the question
are sections 3 to 6 of the Act. Section 3 is the charg-
2 S.C.R.
SUPREME COURT REPORTS
845
ing section,
and
it
enacts
that subject
to
certain
exempt10ns, every instrument mentioned in the Schedule to the Act shall be chargeable with the duty of
the amount indicated therein as the proper duty therefor. Section 4 lays down that when in the case of any
sale, mortgage or settlement several instruments
are
employed for completing the transaction, only one of
them called
the
principal
instrument
is
chargeable
with the duty mentioned in Schedule l, and that the
other instruments are chargeable each with a duty of
one
rupee.
Section 5 enacts
that any
instrument
comprising or relating to several distinct matters shall
be chargeable with the aggregate amount of the duties
with which separate instruments, each comprising
or
relating to one of such matters, would be chargeable
under the Act. Section 6, so far as is material, runs
as follows:
"Subject to the provisions of the last preceding
section, an instrument so framed as to come within
two or more of the descriptions in Schedule I, shall,
where the duties chargeable thereunder are different,
be chargeable only with the highest of such duties".
The point for decision in this appeal is as to the
meaning to be given to the words "distinct matters"
in section 5. The contention of the respondent which
found favour wich the majority of the learnrcl Judges
in the court below
is that the word "matters" in
section 5 is synonymous with the word "description"
occurring in section 6; and that they both refer to the
several categories of instruments which are set out in
the Schedule. The argument in support of this contention is this : Section 5 lays down that the duty
payable ·when the instrument comprises or relates
t~
distinct matters is the aggregate of what would
be
payable on separate instruments relating to ea(h of
these
matters.
An instrument would be
chargeable
under section 3 only if it fell within one of the categories
mentioned
in the Schedule.
Therefore, what
is contemplated by section 5 is a combination in one
document of different categories of instruments such
as sale ancl mortgage, sale and lease or mortgage and
lease and the like. But when the category is one
1955
The Member,
Board of Revenue
v.
Arthur Paul
Benthall
V enkataraina
AyyarJ.
1955
Tht Mtmbu,
Board of Rei·enue
v.
Arthur Paul
Benthall
Venkatarama
4_1yar ].
846
SUPREME COURT REPORTS
[19551
and
the same,
then section 5 has
no application,
and as, in the present case, the instrument in question
is a power-of-attorney, it would fall under article 48(a)
in whatever capacity it was executed, and there being only one category, there are no distinct matters
within section 5.
. We are unable to accept the contention that the
word "matter" in section 5 was intended to convey
the same
meaning as the word "description" in
section · 6.
In its popular sense, the expression "distinct
matters"
would connote
something
different
from
distinct "categories".
Two transactions might be
of
the same description, but all the same, they might be
distinct. If A sells Black-acre to X and mortgages
White-acre to Y, the transactions fall under different
categories, and they are also distinct matters.
But if
A mortgages Black-acre to X and mortgages Whiteacre to Y, the two transactions fall under the same
category, but they would certainly be distinct matters.
If the intention of the legislature was that the expression 'distinct matters' in
section 5 should be understood not in its popular sense but narrowly as meaning different categories in the Schedule, nothing would
have been easier than to say so. When two words of
different import are used in a statute in two consecutive provisions, it would
be
difficult
to maintain
that they are used in the same sense, and the conclusion must follow that the expression
"distinct
matters" in section'· 5 and "descriptions" in section 6 have
different connotations.
It is urged against this conclusion that if the word
"matters" in section 5 is construed as meaning anything other than "categories"
or in the phraseology
of section 6, "descriptions" mentioned in the Schedule,
then there could be no conflict between the two sections, and the clause in section 6 that it is "subject
to the provision of the last preceding section" would
be meaningless and useless. We see no force in this
· contention. Though the topics covered by sections 5
and 6 are different, it is not difficult to conceive of
instruments which might raise questions falling to be
determined under both the sections. Thus, if a part-
2 S.C.R.
SUPREME COURT REPORTS
847
nership carried on by members of a family is wound
up and the deed of dissolution effects also a partition
of the
family properties as
in
Secretary,
Board of
Revenue v.
Alagappa Chettiar (1 ), the instrument can
be viewed both as a deed of dissolution and a deed
of partition, and under section 6,
the duty payable
will be the higher duty
as
on an
instrument
of
partition.
But supposing by
that very
~eed one of
the members creates a charge or mortgage over the
properties allotted to his share in favour of another
member for moneys borrowed
by him for his
cwn
purposes,
that
would
be
a distinct
matter
which
would
attract
section 5.
Now, but for
the
savmg
clause,
a
contention
might
be
advanced
that
sections 5 and 6 are mutually exclusive, and as
the instrument falls within section 6. the only duty payable
thereon is as on an instrument of partition and no
more. The purpose of the clause in section 6 is to
repel any such contention.
Considerable stress was laid bv Mr. Chaudhury on
the scheme of the Act as embodied in sections 3 to 6
as strongly
supporting
the
view
that
'matters'
m
section 5 means
the
same
thing
ds 'description· m
section 6.
He argued that under section 3 the duty
was laid not on all instruments but Qn those which
were of the descriptions
mentioned in the Schedule,
that section 4 enacted a special
provision with reference to three of the categories mentioned in the
Schedule, sale (conveyance), mortgage and settlement,
that if they were completed in more than one instrument, not all of them were liable for the duty specified in the Schedule, but only one of them called the
principal document, and that section 6 provided that
when the instrument fell under two or more of the
categories in the Schedule, the duty payable was the
highest payable on any one of them, that thus the
categories in the schedule were the pivot on which
the entire scheme
revolved,
and that in construing
the section in the light of that scheme, the expression
"distinct matter" must in the setting be construed as
distinct categories.
To construe "distinct matters" as
(I) l.L.R. [1937) Mad. 553.
The Member,
Board of Revenu!
v.
Arthur Paul
Bmtha/I
J.,.cnkatararwi
Ayyar ].
1955
The Member,
Board of Revenue
••
Arthur Paul
Benthall
Venkatarama
A;:yar J.
848
SUPREME COURT REPORTS
[1955]
something different from "distinct categories"
would
be, it was argued, to introduce a concept foreign to
the scheme of the enactment .
The error in this argument lies in thinking that the
object and
scope of sections 4 to 6 are the same,
which in fact they are not. Section 4 deals with a
single
transactjon
completed
in
seve1al
in~trument,.
and section 6 with a single transaction which might
be viewed ·as falling under more than one category,
whereas section 5 applies only when
the instrument
comprises more than
one
transaction, and
it
is
in1material for this purpose whether those
transactions
are of the same category
or of different
categories.
The topics dealt with in the three sections heing thus
different, no useful 1mrpose will he server! bv referring
to section 4 or section 6 for determining the scope of
section 5 or for construing its terms. It is not without significance that the
legislature
has used
three
different
words
m
relation
to
the
three
sections,
'transaction'
in section 4,
'matter'
in section 5,
:i.nd
'description' in section 6.
In support of his contention that 'distinct matters'
in section 5 meant only different categories,
learned
counsel for the respondent relied on certain observations in Ansel] v. Inland Revenue Commissioners(').
There, the instrument under consideration was a deed
of settlement
which
comprised
certain Government
secunt1es as
also
other investments, and
under the
Stamp Act, 1891, it was chargeable with a single duty
ad va!orem on the value of all the properties settled.
Bv section 74, sub-section (1) of the Finance Act,
1910, voluntary dispositions
were
chargeable with a
higher stamp duty as on a conveyance; but Government securities were exempted from the operation of
the section. The question that arose for decision was
whether a separate duty was payable in respect of
Government stocks under the provisions of the Stamp
Act, 1891 over and above what was paid under section 74, sub-section (I) of the Finance Act, 1910 on
account of other investments.
Answering it m
the
affirmative, Rowlatt, J. observed :
(1) [19°9] 1 K.B. """·
.•
2 S.C.R.
SUPREME COURT REPORTS
849
"If
two different classes of property are
being
transferred by the same words of assignment in the
same document, and those two different
classes of
property in the same document are different from the
point of view of the Stamp Act and taxation, it
seems to me in common sense that they must be distinct matters".
The respondent wants to read these observations
as
meaning that where the matters are not dealt with
separately for purposes of stamp duty, then they are
not distinct matters. This, however, does not follow.
The case before the court was one in which the instrument dealt with properties which fell
under two
categories, and the decision was that they were· distinct matters. There is nothing either in the decision or the observations quoted above to support the
contention of the respondent
that if the
instrument
comprises matters falling within the same description,
it
is
not to be construed
as
comprising
distinct
matters.
Reliance was also
placed
on
the
observatio•"; in Reversionary Interest Society v. Commissioners
of Inland Revenue(1), in which it was held that a
statutory
declaratic 11
for
the
purpose
of
carrying
through a transacti0n was
liable
for a single stamp
duty.
There, the declaration
was made by husband
and wife, and in view of the purpose for which it had
to be
used, it was construed as one declaration.
This
is a d·~cision on the facts, and is not of much assistance.
In the view, then, that section 5 would apply even
when the instrument comprises matters of the same
description,
the point for
decision
is
whether
the
instrument proposed to be
executed
by
the
respondent is a single power-of-attorney
or a combination
of several of them. The contention of Mr. Chaudhury
is ! 1.at when the executant of one instrument confers
on the attorney a general authority to act for him in
whatever matters he could act, then there is, in fact,
only a single delegation, and that therefore the instrument must be construed
as
a single
power-ofattorney liable for a single duty under article 48( d)
I [1906] 22 T.L.R. 110:
i955
The Mcmbtr,
lioard of Rfvenue
v.
Arthur Paul
Bmtha/l
Vimkatarama
A_ryar ].
1955
'[hf .\frmbtr,
B1·ard 11( R~1·erwt
"·
Arthur Pau
Bfnll,all
V 111katarama
Ay;·ar ].
850
SUPREME COURT REPORTS
r 195s 1
of the Schedule. The contention of the appellant, on
the other . hanJ,
is
that
though
the instrument is
executed by one person, if he fills several capacities and
the authority conferred is
general, there woul,\
he
distinct delegations in respect of each of those capacities, and that the instrument should bear the aggregate of stamp duty payable in respect of each of sEeh
capacities: The question is which of these two contentions
Li correct .
. We are unable to agree with the respondent that
when a person executes a power-of-attorney in respect
of all the matters in which he could act, it should be
held, as a matter of law and without regard
to the
contents
of
the
instrument,
to
comprise
a
single
matter .. Whether it relates to a single matter or to
distinct matters will, in our opinion.
depend
on
a
number of factors such
as who
are
parties
thereto,
whic'l is t11e ;ubiect-matter ·on which it operates and
so forth. Thus, if A executes one power authorising X
to manage one estate and Y to manage another e<tate,
there
would
really be two distinct
matters,
though
there is onlv one instrument executed
b•1 one person.
But if both X and Y are constituted atto~neys
tG
act
jointly and severally in respect of both the estates,
then there is only one delegation and one matter, and
that is specifically provided for in article 48( d ). Conversely, if a number of per:Sons
join in executing one
instrument, and there is community of
interest between
them
in the subject-matter
comprised
therein,
it will be
chargeable with a single duty. This was
held .in Davis v. Williams('), Bot1Jet1 v. Ashley('), Goodson v. Forbes(') and others cases. But if the interest•
of the executants are separate,
the
instrument must
be construed
as
comprising
distinct
matters.
Vitle
Freeman v. Commissioners of Inland Revenue(').
Applying .the, same
principle to powers-0f-attornev, it
was held in Allen v. Morrison(' ) that when members
of a mutual insurance. club executed a single power,
it relat.ed to one matter,
Lord Tenterdon, C. ).
observmg . that "there
was certain I y a community
of
(I) [1804] 104 E.R. 358.
( ) [1805] 127 E.R.467, 469.
(3) [1815] 128 E.R. 999, lfl00-1001.
(4) [1870-71] L.R. 6 Exch. 101.
\5) [128] 108 ll.R. 115:, 1153.
•
2 S.C.R.
SUPREME COURT REPORTS
851
purpose actuating
all
the
members
of
this
club".
ln Reference under Stamp Act, s. 46( 1 )
, a powcr-ofattorncy
executed
by
thirty-six
persons
~ relation to a fund in which they were jointly
mterested
was held to comprise a single matter. A similar decision was given in Reference und • .,· Stamp Act, s. 46(2)
where
a
power-of-attorney
was
executed
by
ten
mirasdars empowering the collection of communal income appurtenant to their mirasi rights. On the other
hand, where several donors having separate
interests
execute a single power-of-attorney
with
reference to
their
respective
properties as, for example,
when A
constitutes
X
as
attorney
for
management
of
his
estate Black-acre and B constitutes the same person as
attorney· for the management of his estate White-acre,
then the instrument must be held to comprise distinct
matters. It was so decided in Reference under Stamp
Act, s. 46( s ).
Thus, the question whether a power-ofattornev relates to distinct matters is
one that will
have t; be decided on a consideration of the terms of
the ·instrument and the nature and the extent of the
authority conferred thereby.
It may be mentioned that questions of this character
cannot now arise in England in view
of the
special
prnvision
contained
in the Finance Act, 1927 (17 &
18, Geo. 5, Ch. 10), section 56 which runs as follows :
"No
instrument
chargeable
with
stamp
duty
under the heading 'Letter or Power of Attorney and
Commission, Factory, Mandate, or other
instrument
in
the nature thereof in the First Schedule to the
Stamp Act, 1891, shall be
charged with duty more
than once by reason only that more persons than one
are named
in
the
instrument as
donors ar donc:es
(whether jointly or severally or otherwise),
of the
powers thereby conferred or that those powers relate
to more than one matter".
~h~re is no provision in the statute law of this country
similar to the above, and it
is
significant that it
assumes that a power of attorney
might consist
of
distinct matters by reason of the fact that there arc
(I) [1886] I.LR. 9 !Vad. 358.
(2) [1891] l.L.R. 15 Mad. 386.
(3) [1892] 2 M.L.J. 178.
1955
The ;\/ember,
Board of Revenue·
V.
Arlhur Paul
Bent1·all
V tn/.;alarama
.~yar J.
i~l55
The .\!ember,
Board n._f.Re1·em1e
"·
Arthur Paul
Benthall
V rnkatarama
~~yyar J.
852
SUPREME COURT REPORTS
I 19551
several Jonors or donees mentioned in it, or that. it
relates to more than one matter.
Now, considering Exhibit A in the light of the
above discussion, the point for determination is whet.her it can be said
to comprise distinct matters by
reason of the fact that the respondent has executed it
in different; capacities. In this form, the question is
bereft of authority, and falls to be decided on wellrecognised principles applicable to the nuttcr. It is, >s
has
been
stated
above, settled law
that when two
persons
10111
ifi
executing a power-of-attorney, whether it comprises distinct matters or not will depend
on whether
the
interests
of
the cxecmants
in
the
subject-matter of
the power are separate or
joint.
Conversely, if
one person holding properties in two
different capacities, each unconnected with the
other,
executes
a power
in respect of both of them,
the
instrument should logically be held to comprise ,\istinct matters.
That will he in consonance with the
generally accepted notion of what are <fotinct mattero,,
and that certainly was the view which the responde;it
himself took of the matter when he expressly recited
in the power that he executed it both in his individual
capacity and in his other capacities. But it is contended by Mr. Chaudhury
that
the
fact
that the
respondent filled several capacities would
not aifect
the character of the instrument as relating to a single
matter,
as
the
delegation
thereuncier
extended
to
whatever the respondent could do, and that it woulcl
be immaterial that he held some properties in his
individual capacity and
some
others
as
trustee or
executor, as the legal title to all of them would vest
in him equally in the latter as well as in the former
capacity. We are concerned, he argued, not with the
source from which the title flowed but with the reservoir in which it is now contained.
This is to attach more importance to the form of
the matter than to its substance. When a person is
appointed
trustee, the legal title to the estate does,
under the English
law,
undoubtedly
vest
in him;
hut then he holds it for the benefit of the cestui que
trtut in whom the equitable estate vests.
Under the
2 S.C.R.
SUPREME COURT REPORTS
853
Indian law, it is well established that there can be
trusts and fiduciary relations in the nature
of trust
even without there being a vesting of the legal estate
in the trmtee as in the case of mutts and temples.
Vidc Vidya Varuthi v. Balusami( 1 ).
In such cases,
the legal title is vested in the institution, the mahant
or shebait being the manager thereof, and any delegation of authority by him can only be on behalf of
the institution
which he represents. When a person
possesses
both a personal
capacity and a representative
capacity,
such as trustee,
and
there is a delegation of power by him in both those capacities, the
position in law is exactly the same as if different persons ;om m executing a power in respect of matters
which are unrelated.
T:1ere being no community of
interest between the personal estate belonging to the
executant and the trust
estate vested
in him, they
must be held to be distinct matters for purposes of
section s: The position is the same when a person is
executor or administrator,
because
in
that
capacity
he represents
the
estate
of
the
deceased,
whose
persona is deemed to continue in him for purposes of
administration.
It was finallv contended by Mr. Chaudhurv that if
e\'ery capacity of the donor is to be considered as a
distinct matter, we should have to hold that there
are distinct matters not only with reference to the
capacity of the executant as
trustee, executor and so
forth, but in respect of every transaction entered into
by him in his personal capacity. Thus, it is argued,
if he confers on his attorney
authority
to sell
one
property, to mortgage another and to lease a third,
he would have acted in three different capacities as
vendor,
mortgagor and lessor, and
the instrument
will have to be stamped as relating to three distinct
matters. 'Phis, he contended, would destroy the very
basis of a general power-of-attorney.
The fallacv
in
this argument is in mixing up the capacity which a person possesses with acts exercisable by virtue of
that
capacity.
When an executor, for example, sells one
property for discharging the debts of the testator and
(!) [1921] 48 I.A. 302.
1955
The Member,
Board of Revenue
v.
Arthur Paul
Benthall
V <nkatarama
Ay;·ar ].
1955
The ,\!ember,
Board of Revenue
v.
ArlhU1' Paul
Benthall
V enkalfirama
Ayyar].
854
SUPREME COURT REPORTS
[ 1955]
mortgages another for raising funds for carrying on
his business, he no doubt acts in two different transactions; but in respect of both of them, he functions
only in his capacity as
executor.
In our
opm1on,
there is no substance in this contention.
In the result, we are of the opinion, differing from
the majority of the learned Judges of the court below,
that
the
instrument, Exhibit A,
comprises
distinct
matters in respect of
the several capacities
of
the
respondent
mentioned therein,
and
that the view
taken by the revenue authorities and supported
by
S. R. Das Gupta, J. is correct. This 3ppeal will
accordingly be allowed. The respondent will pay the
costs of the appellant here and in the court below.
BHAGWATI J.-I regret I am unable to agree with
the conclusion reached
in
the
Judgment just delivered.
While agreeing in the main with the construction
put upon sections 4, 5 and 6 of the Act and the connotation of the words "distinct matters" used in section 5, I am of the view that the question still survives whether the instrument in question is a single
power ot attorney. or a combination of several of
them. The argument which has
impressed
my
Brother Judges forming the majority of the Bench is
that though die instrument is executed by one individual, if he fills several capacities and the authority
conferred
is general,
there would be distinct delegations
in
respect of each of those capacities and
the instrument should bear the aggregate of stamp
duty payable in respect of each of such capacities.
With the greatest respect I am unable to accede to
that argument. I agree that the question whether a
power of attorney relates to distinct matters is
one
that will have to be decided on the consideration of
the terms of the instrument and the nature and the
extent of the authority conferred thereby.
The fact,
however, that the donor of the
power of attorney
executes it in different capacities is not sufficient in
my opinion to constitute· the
instrument, one comprising distinct matters
and
thus
requiring to
he
2 S.C.R.
SUPREME COURT REPORTS
855
stamped with the aggregate amount of the duties with
which
separate
instruments
each
comprising
or
relating to one of such matters would be chargeable
under the Act, within the meaning of section 5. The
transaction is a single transaction whereby the donor
constitutes
the
donees
jointly
and
severally
his
attorneys for him and in his name and on his behalf
to act for him in his individual capacity and a\;o in
his capacity as managing director, director, managing
agent, agent, secretary or liquidator of any company
in which he is or may at any time thereafter be interested in any such capacity as ·aforesaid and also as
executor,
administrator,
trustee
or
in any
capacity
whatsoever
as occasion shall require. No doubt, different capacities enjoyed by the donor are combined
herein but that does not constitute him different individuals thus bringing this
instrument
within
the
mischief of section 5. The executants of the instrument are not several individuals but is only. one individual, the donor himself, though he enjoys different
capacities. These different capacities have a bearing
on the nature and extent of the powers which he could
exercise as such.
In his own individual capacity he
could exercise all the powers as the full owner qua
whatever right, title and interest he enjoys in the property, whether it be an absolute interest or a limited
one; he may be the absolute owner of the property or
may have a life interest therein, he may have a mortgagee's interest or a lessee's interest therein, he may
be a dominant owner of a tenement or may be a mere
licensee; but whatever interest he enjoys in that property will be the subject-matter of the power which
he executes in favour of the donee. He may, apart
from this individual interest which he enjoys therein,
be a trustee of certain property and he may also enjoy
the several interests described above in his capacity
as such .trustee. It may be that in his turn .he- may
be accountable to the beneficiaries for the due administration of the affairs of the trust but that does not
mean that he, as trustee, is not entitled to exercise
all these powers, the trust property having vested in
him, and he being therefore in a position to exercise
1955
ThL Member,
Board .of Revenue
v.
Arthur Paul
Benthall
Bhagwati J.
1955
The Member,
Board of Revenue
v.
Arthur Paul
Benthall
Bhagwati J.
856
SUPREME t.:0URT REPORTS
[1955]
all these powers in relation thereto. The same would
be the position if he were an executor or an administrator of an estate, in possession of the estate of the
deceased as such. The property of the deceased would
vest in him though his powers of dealing with the
same would be circumscribed either by the provisions
of the · testamentary instrument or the limitations imposed upon the same by law. All these circumstances
would certainly impose limitations on his powers of
dealing with the properties but that does not detract
from the position that he is entitled to deal with those
properties and
exercise
all
the powers in relation
thereto
though with
the
limitations imposed upon
them by reason of the capacities which he enjoys. It
follows,
therefore,
that,
though
enjoying
different
capacities, he is the
same
individual who functions
though in different capacities and conducts his affairs
in the various capacities which he enjoys but as a
single individual. He is not one individual when he
is acting in his own individual capacity; he
is
not
another individual when he is acting as a trustee of a
particular estate and he is not a third individual when
he is acting as
an
executor or administrator of a
deceased person. In whatever
capacity
he
is
acting
he is the same individual dealing with various affairs
with which he is concerned though with the limitations imposed upon his powers of dealing with the properties by reason of the properties having vested
in
him in different capacities.
I am therefore of the opinion that the instrument
in question does not comprise
distinct
matters
but
comprises one matter only and
that matter
is
the
execution of a general power of attorney by the donor
in favour of the donees constituting the donees his
attorneys to act for him in all the capacities which
he enjoys. The instrument in question cannot be split
up into separate
instruments each comprising or relating to a . distinct matter in so for as the different
capacities
of the donor
are
concerned.
A
general
power , of attorney comprises all acts
which can be
done by the donor himself whatever be the capacity
or capacities which he enjoys and cannot be split up
2 S.C.R.
SUPREME COURT REPORTS
857
into individual acts which the donor is capable of performing and which he appoints his attorney to <lo for
him and in his name and on his behalf. It is within
the very nature of the general power of attorney that
all the distinct acts which the donor is capable of performing are comprised in the one instrument which is
executed by him, and if that is the position, it is but
logical that whatever acts the donor is capable of performing whether in his individual capacity or in his
representative capacity as
trustee or
as
executor or
administrator
are also comprised within the instrument and are not distinct matters to be dealt with as
such so as to attract the operation of section 5.
I am therefore of the opinion that the conclusion
reached by the majority Judges in the High Court of
Judioture at Calcutta was correct and would accordingly dismiss this Appeal with costs.
BY THE CouRT.--In accordance with the opinion of
the majority the Appeal
is
allowed with costs
here
and in the Court below.
JUGAL KISHORE RAMESHW ARDAS
v.
MRS. GOOLBAI HORMUSJI
[BHAGWATI, VENKATARAMA AYYAR and B. P.
SINHA JJ.)
Bombay Securities Contracts Control Act, 1925 (Bombay Act
Vil/ of 1925)-Ss. 3( 4) and 6-Sale and purchase of securities by
appellant on behalf of resffondent-Dispute between the parties whether
appellant was acting within his authority wl1en he purchased the
shares-Relationship between the patties that of principal and agent
and, not that of seller and purchaser-Whether falls within purview of
s. 6-Contract notes sent by brokers to their constituent-Mere intimations by brnkers to constituent-That contract had been entered into
-Arbitration agreement-Essentials thereof-Rules framed by Native
Share and Stock Brokers' Association-Complete code by themselvesRule 167-Whether contract notes void thereunder.
The appellant-a share-broker carrying on business in the City
of Bombay ar.d a member of the Native Share and Stock Brokers'
17-84 S. C. lndia/59
1955
The MrmbeT,
Board of Revenue
v.
Arthur Paul
Bwthall
Bhagwati ].
1955
Octobtr 4.