THE MEMBER, BOARD OF REVENUE v. ARTHUR PAUL BENTHALL

Considerable stress was laid bv Mr. Chaudhury on the scheme of the Act as embodied in sections 3 to 6 'matters' m as strongly 'description· m section 5 means section 6. He argued that under section 3 the duty those which was laid not on all instruments but Qn the Schedule, were of the descriptions mentioned in that section 4 enacted a special provision with erence to Schedule, sale (conveyance), mortgage and settlement, that if they were completed in more than one instru ment, not all of them were the duty speci fied in the Schedule, but only one of them called the principal document, and instrument fell under two or more of the categories in the Schedule, highest payable on any one of them, the pivot on which categories in construing the entire 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 the duty payable was in the schedule were scheme that section 6 provided revolved, and liable (I) l.L.R. [1937) Mad. 553. 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 . seve1al completed transactjon The error in this argument lies in thinking that the object and the same, scope of sections 4 to 6 are which in fact they are not. Section 4 deals with a single in~trument,. and section 6 with a single transaction which might than one category, be viewed ·as falling under more instrument whereas section 5 applies only when comprises more than one in1- material 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 is not with section 5 or for construing its out significance different words m sections, 'transaction' :i.nd 'description' in section 6. transaction, and in section 5, this purpose whether legislature has used relation 'matter' in section 4, terms. It In support of his contention that 'distinct matters' learned in section 5 meant only different categories, the respondent relied on certain observa counsel for in Ansel] v. Inland Revenue Commissioners('). There, the instrument under consideration was a deed 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 the Finance Act, 1910, voluntary dispositions were chargeable with a higher stamp duty as on a conveyance; but Govern ment 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 sec tion 74, sub-section (I) of the Finance Act, 1910 on account of other investments. Answering affirmative, Rowlatt, J. observed : (1) of it m (1) [19°9] 1 K.B. """· i955 The Mcmbtr, lioard of Rfvenue v. Arthur Paul Bmtha/l Vimkatarama A_ryar ]. 2 S.C.R. SUPREME COURT REPORTS 849 "If to read taxation, these observations the Stamp Act and the same words of assignment two different classes of property are being transferred by same document, and two different classes of property in the same document are different from the point of view of seems to me in common sense that they must be dis tinct matters". The respondent wants that where the matters are not dealt with meaning separately for purposes of stamp duty, then they are not distinct matters. This, however, does not follow. the court was one in which the in The case before strument dealt with properties which fell under they were· dis categories, and the deci tinct matters. There to support the sion or the observations quoted above contention of the respondent instrument that if the same description, comprises matters falling within comprising distinct to be construed matters. Reliance was also placed on the observa in Reversionary Interest Society v. Commissioners tio•"; that a of Inland Revenue(1), statutory declaratic 11 carrying through a transacti0n was for a single stamp the declaration was made by husband duty. There, in view of the purpose for which it had and wife, and to be it was construed as one declaration. This is a d·~cision on the facts, and is not of much assist ance. the purpose of liable the decision was that is nothing either it was held in which is not used, the point for decision is whether In the view, then, that section 5 would apply even the same when the instrument comprises matters of description, instrument proposed to be executed by respon is a single power-of-attorney or a combination of several of them. The contention of Mr. Chaudhury ! 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 the in strument must be construed single power-of liable for a single duty under article 48( d) attorney as a therefore I [1906] 22 T.L.R. 110: .• 850 SUPREME COURT REPORTS r 195s 1 1955 '[hf .\frmbtr, B1·ard 11( R~1·erwt "· Arthur Pau Bfnll, all V 111katarama Ay;·ar ]. though instrument of the Schedule. The contention of the appellant, on the other . hanJ, executed by one person, if he fills several capacities and the authority conferred there woul,\ he respect of each of those capa distinct delegations cities, and that the instrument should bear the aggre gate of stamp duty payable in respect of each of sEeh capacities: The question two con tentions Li correct . is which of these is general, t1 regard really be instrument, comprise a the matters as who are parties two distinct matters, in which he could act, to a single matter or in our opinion. depend on . We are unable to agree with the respondent that when a person executes a power-of-attorney in respect it should be of all held, as a matter of law and without contents single matter .. Whether it relates a distinct matters will, number of factors such thereto, whic'l is 1e ;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 though instrument executed b•1 one person. there is onlv one But if both X and Y are constituted atto~neys tG act jointly and severally the estates, then there is only one delegation and one matter, and that is specifically provided for in article 48( d ). Con versely, if a number of per:Sons join in executing one interest bet instrument, and therein, it will be chargeable with a single duty. This was held .in Davis v. Williams('), Bot1Jet1 v. Ashley('), Good son v. Forbes(') and others cases. But if the interest• of the executants are separate, instrument must comprising distinct matters. Vitle be construed Freeman v. Commissioners of Inland Revenue('). Ap plying 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. ). ob servmg . that "there was certain I y a community of is community of the subject-matter comprised to powers-0f-attornev, respect of both .the, same principle • (I) [1804] 104 E.R. 358. (3) [1815] 128 E.R. 999, lfl00-1001. ( ) [1805] 127 E.R.467, 469. (4) [1870-71] L.R. 6 Exch. 101. \5) [128] 108 ll.R. 115:, 1153. 1955 The ;\/ember, Board of Revenue· V. Arlhur Paul Bent 1·all V tn/.;alarama .~yar J. 2 S.C.R. SUPREME COURT REPORTS 851 ) a executed executed thirty-six the members of power-of-attorney was club". purpose actuating all ln Reference under Stamp Act, s. 46( 1 , a powcr-of persons ~ rela attorncy tion to a fund in which they were jointly mterested was held to comprise a single matter. A similar deci sion was given in Reference und • .,· Stamp Act, s. 46(2) mirasdars empowering the collection of communal come appurtenant to their mirasi rights. On the other interests hand, where several donors having separate execute a single power-of-attorney with respective properties as, for example, when A for management of his constitutes X 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 It was so decided in Reference under Stamp matters. Act, s. 46( s ). Thus, the question whether a power-of attornev that will have t; be decided on a consideration of the terms of the ·instrument and the nature and authority conferred thereby. to distinct matters the extent of reference attorney is one relates "No thereof instrument the nature in England in view of the Finance Act, 1927 It may be mentioned that questions of this character special cannot now arise prnvision contained (17 & 18, Geo. 5, Ch. 10), section 56 which runs as follows : stamp duty chargeable with the heading 'Letter or Power of Attorney and instrument Commission, Factory, Mandate, or other to the Stamp Act, 1891, shall be charged with duty more than once by reason only that more persons than one instrument as donors ar donc:es are named (whether 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 that a power of attorney might consist of assumes that there arc distinct matters by reason of the fact jointly or severally or otherwise), of in the First Schedule the above, and significant (I) [1886] I.LR. 9 !Vad. 358. (2) [1891] l.L.R. 15 Mad. 386. (3) [1892] 2 M.L.J. 178. i~l55 The .\!ember, Board n._f.Re1·em1e "· Arthur Paul Benthall V rnkatarama ~~yyar J. 852 SUPREME COURT REPORTS I 19551 in it, or that. it several Jonors or donees mentioned relates to more than one matter. Now, considering Exhibit A 10111 In this form, that when separate or the question the cxecmants stated above, settled the point for determination interests of the power are if one person holding properties in light of the is whe above discussion, to comprise distinct matters by t.her it can be said reason of the fact that the respondent has executed it in different; capacities. bereft of authority, and to be decided on well recognised principles applicable to the nuttcr. It is, >s has been persons executing a power-of-attorney, whe ther it comprises distinct matters or not will depend on whether joint. subject-matter of Conversely, the other, different capacities, each unconnected with them, in respect of both of executes a power ,\is to comprise instrument should logically be held tinct matters. That will he in consonance with 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 his individual in the power that he executed it both is con capacity and in his other capacities. But tended by Mr. Chaudhury several capacities would not aifect filled respondent the character of the instrument as relating to a single matter, whatever the respondent could do, and that it woulcl in his individual capacity and 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 source from which the title flowed but with the reser voir in which it is now contained. immaterial that he held some others as some properties the delegation thereuncier extended This is importance to attach more to the form of to the estate does, in him; then he holds it for the benefit of the cestui que the matter than to its substance. When a person appointed law, undoubtedly vest in whom the equitable estate vests. Under the English the legal trustee, 1955 The Member, Board of Revenue v. Arthur Paul Benthall V <nkatarama Ay;·ar ]. 2 S.C.R. SUPREME COURT REPORTS 853 law, is well established is vested in the institution, in the nature of there can be Indian trusts and fiduciary relations 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 mahant the legal title or shebait being the manager thereof, and any dele gation 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 representa there is a delega tive capacity, tion of power by him position in law is exactly the same as if different per sons ;om m executing a power in respect of matters which are unrelated. T:1ere being no community of the personal estate belonging to the interest between executant and for purposes of must be held to be distinct matters section s: The position is the same when a person executor or administrator, because that capacity he represents deceased, whose persona is deemed to continue in him for purposes of administration. such as trustee, and trust estate vested those capacities, the estate in him, in both It was finallv contended by Mr. Chaudhurv that if to be considered as a e\'ery capacity of the donor is that there distinct matter, we should have to hold are distinct matters not only with reference capacity of the executant as trustee, executor and so forth, but in respect of every transaction entered into is argued, by him in his personal capacity. Thus, it to sell one if he confers on his attorney authority property, to mortgage another and third, in three different capacities as he would have acted instrument vendor, mortgagor and will have to be stamped as three distinct the very matters. basis of a general power-of-attorney. The fallacv this argument is in mixing up the capacity which a per son possesses with acts exercisable by virtue of capacity. When an executor, for example, sells one the debts of the testator and property for discharging 'Phis, he contended, would destroy lessor, and relating lease a (!) [1921] 48 I.A. 302. 1955 The ,\!ember, Board of Revenue v. ArlhU1' Paul Benthall V enkalfirama Ayyar]. 854 SUPREME COURT REPORTS [ 1955] raising funds for carrying on mortgages another for his business, he no doubt acts sactions; but in respect of both of them, he functions In our opm1on, there is no substance in this contention. in his capacity as in two different executor. In the result, we are of the opinion, differing from the majority of the learned Judges of the court below, instrument, Exhibit A, comprises distinct matters in respect of the view respondent mentioned taken by S. R. Das Gupta, J. is correct. This 3ppeal will ac cordingly be allowed. The costs of the appellant here and in the court below. the revenue authorities and supported several capacities of respondent will pay therein, BHAGWATI J.-I regret I am unable to agree with just deli Judgment the conclusion reached vered. the Bench is general, in question the majority of if he fills several capacities and While agreeing in the main with the construction put upon sections 4, 5 and 6 of the Act and the con in sec notation of the words "distinct matters" used the question still sur tion 5, I am of the view that vives whether the instrument is a single power ot attorney. or a combination of several of them. The argument which has impressed my Bro ther Judges forming that though die instrument is executed by one indivi dual, the authority there would be distinct dele conferred those capacities and gations the instrument should bear the aggregate of stamp in respect of each of such capacities. duty payable With the greatest respect I am unable that the question whether a I agree that argument. power of attorney relates is one that will have to be decided on the consideration of the nature and the the terms of the instrument and thereby. The fact, extent of the power of attorney however, executes it in different capacities is not sufficient my opinion instrument, one com prising distinct matters and the authority conferred that the donor of respect of each of to distinct matters to constitute· the to accede requiring 1955 ThL Member, Board .of Revenue v. Arthur Paul Benthall Bhagwati J. 2 S.C.R. SUPREME COURT REPORTS 855 jointly donees separate severally trustee or comprising instruments thereafter be thus bringing individuals but instrument within the donor himself, stamped with the aggregate amount of the duties with 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 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 terested in any such capacity as ·aforesaid and also as executor, administrator, in any capacity whatsoever as occasion shall require. No doubt, dif ferent capacities enjoyed by the donor are combined herein but that does not constitute him different in dividuals instru mischief of section 5. The executants of ment are not several is only. one in dividual, 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 the full owner qua could exercise all the powers as whatever right, title and interest he enjoys in the pro interest or a limited perty, whether it be an absolute one; he may be the absolute owner of the property or may have a life interest therein, he may have a mort gagee's interest or a lessee's therein, he may be a dominant owner of a tenement or may be a mere licensee; but whatever interest he enjoys in that pro the subject-matter of the power which perty will be the donee. He may, apart he executes in favour of therein, be a trustee of certain property and he may also enjoy the several in his capacity that in his turn .he- may as such .trustee. It may be be accountable to for the due admi the beneficiaries nistration of the affairs of the trust but that does not mean that he, as trustee, is not entitled to exercise all these powers, him, and he being therefore in a position to exercise this individual interest which he enjoys trust property having vested interests described above interest 1955 The Member, Board of Revenue v. Arthur Paul Benthall Bhagwati J. 856 SUPREME t.:0URT REPORTS [1955] exercise in him the powers in relation though with instrument or the in possession of the estate of thereto. The same would all these powers be the position if he were an executor or an adminis trator of an estate, deceased as such. The property of the deceased would though his powers of dealing with the same would be circumscribed either by the provisions of the · testamentary limitations im posed upon the same by law. All these circumstances impose limitations on his powers of would certainly dealing with the properties but that does not detract from the position that he is entitled to deal with those in relation properties and imposed upon thereto It them by reason of the capacities which he enjoys. different follows, functions capacities, he though in different capacities and conducts his affairs in the various capacities which he enjoys but as a individual. He is not one individual when he single 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 is acting as an executor or administrator of a deceased person. is acting is the same individual dealing with various affairs limita with which he is concerned though with tions imposed upon his powers of dealing with the pro perties by reason of him in different capacities. though enjoying individual who the properties having vested In whatever capacity he therefore, limitations that, that matter I am therefore of the opinion the instrument in question does not comprise distinct matters but comprises one matter only and execution of a general power of attorney by the donor the donees his in favour of the donees constituting attorneys to act for him in all the capacities which instrument in question cannot be split he enjoys. The instruments each comprising or re lating to a . distinct matter in so for as the different concerned. A general capacities of power , of attorney comprises all acts which can be done by the capacity or capacities which he enjoys and cannot be split up the donor himself whatever be into separate the donor 2 S.C.R. SUPREME COURT REPORTS 857 into individual acts which the donor is capable of per forming 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 per forming 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 per forming whether in his individual capacity or in his representative capacity as trustee or as executor or administrator instru are also comprised within ment and are not distinct matters to be dealt with as such so as to attract the operation of section 5. 1955 The MrmbeT, Board of Revenue v. Arthur Paul Bwthall Bhagwati ]. I am therefore of the opinion the conclusion reached by the majority Judges in the High Court of Judioture at Calcutta was correct and would accord ingly dismiss this Appeal with costs. BY THE CouRT.--In accordance with the opinion of is allowed with costs here the majority the Appeal and in the Court below. JUGAL KISHORE RAMESHW ARDAS v. MRS. GOOLBAI HORMUSJI 1955 Octobtr 4. [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 inti mations 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 themselves Rule 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