JUDGMENT [ENTITY]., J.
1. Shri [ENTITY] held certain land on perpetual lease from the Delhi Development Authority. The lessee could not transfer the lease except with the previous consent in writing of the Lesser. In granting such consent, the Lesser could impose terms and conditions and was to be entitled to claim and recover 75 per cent of the "unearned increase in the value", i.e. the difference between the premium paid and the market value, of the land at the time of the transfer from the existing lessee to the new lessee. This amount was to be a first charge on the land. [ENTITY] transferred the lease to [ENTITY] on 23.8.1969. The Delhi Development Authority granted permission to the transfer "subject to a deposit of Rs. 52,[SECTION]1.95 as non-earned increase and further Rs. 271.85 as non-construction penalty which the vendee has agreed to pay after the completion of the lease deed". The transfer deed further says that "the vendor hereby sells, transfers, conveys all his lease-hold rights" in consideration of a sum of Rs. 29,700/- paid to the vendor on 29.7.1961 by the vendee.
2. The question referred to us for opinion under [SECTION] of the [ACT] are :-
(1) Whether under [SECTION] of the Act Rs. 52,[SECTION]1,95 and Rs. 271.85 agreed to be paid by the vendee to the vendor can be treated as a part of the consideration for the transfer deed dated 23.8.1969?
and (2) Whether the transfer duty leviable under [SECTION] of the [ACT] on the above mentioned transaction in the form of a surcharge on the duty imposed by the [ACT] is further subject to the provisions of [SECTION] and [SECTION] of the [ACT] which authorises the impounding of the transfer deed and the levy of a penalty on the same?
Question No. 1:-
There is no dispute that the amount of Rs. 29,700/- paid by the vendee to the vendor was a consideration for the sale deed dt. 23.8.1969. It is however, disputed by the vendee that the other two sums of Rs. 52,[SECTION]1.95 and Rs. 271.85 to be deposited by the vendee for payment to the Delhi Development Authority are a part of the Consideration for the sale deed. The consideration for a transfer on which stamp duty is chargeable has to be found out in accordance with [SECTION] of the [ACT] which runs as follows :-
"24. Where any property is transferred to any person in consideration, wholly or in part, of any debt due to him, or subject either certainly or contingentaly the payment or transfer of any money or stock, whether being or constituting a charge or incumbrance upon the property or not, such debt money or stock is to be deemed the whole or part, as the case may be, of the consideration in respect whereof the transfer is chargeable with ad valorem duty:
Provided that nothing in this section shall apply to any such certificate of sale as is mentioned in [SECTION] Explanation. In the case of a sale of property subject to a mortgage or other incumbrance, any unpaid mortgage money or money charged, together with the interest (if any) due on the same, shall be deemed to be part of the consideration for the sale.
Provided that, where property subject to a mortgage is transferred to the mortgage he shall be entitled to deduct from the duty payable on the transfer the amount of any duty already paid in respect of the mortgage.
ILLUSTRATIONS (1) A owes B Rs.1000. A sells a property to B, the consideration being Rs.500 and the release of the previous debt of Rs.1000. Stamp-duty is payable on Rs.1500.
(2) A sells a property to B for Rupees 500 which is subject to a mortgage to C for Rs.1000 and unpaid interest Rs.200, Stamp-duty is payable on Rs.1700.
(3) A mortgages a house of the value of Rs.10,000 to B for Rs.5000. B after-wards buys the house from A. Stamp-duty is payable on Rs.10,000 less the amount of stamp-duty already paid for the mortgage."
We may also consider the definition of "consideration" in [SECTION] of the [ACT] which is as follows: "(d) When, at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise."
For, according to [SECTION] of the [ACT], the chapters and sections of the said Act which relate to contracts shall be taken as part of the [ACT].
3. In the sense in which the word "consideration" is used in [SECTION] of the [ACT], it is clear that the consideration for the sale deed was constituted by all the three sums payable by the vendee, namely, Rs.29,700/- to the vendor and Rs.52,[SECTION]1.95 and Rs.271.85 to the Delhi Development Authority.
4. Shri [ENTITY] learned counsel for [ENTITY] however argues that the consideration for the transfer is to be determined exclusively under [SECTION] of the [ACT]. According to him, only such transfers of property are covered by the principal part of [SECTION] "where any property is transferred to any person in consideration . . . . . . . . subject either certainly or contingently to the payment or transfer of any money". According to the learned counsel, the expression "subject to" means that there is no sale unless and until the money is paid. Ordinarily the payment of price is not a condition precedent to the passage of title in a sale under [SECTION] of the [ACT]. This is why "sale" is defined there under as a "transfer" of ownership in exchange for a price paid or promised or part-paid and part-promised". The sale deed in question is, therefore, a sale within the meaning of [SECTION] of the [ACT]. The sale deed is, however, already completed prior to the payment of Rs.52,[SECTION]1.95 and Rs.271.85 by the vendee to the Delhi Development Authority. These payments are to be made by the vendee after the completion of the lease deed by the Delhi Development Authority in favor of the vendee. Learned counsel says that the title to the property has passed to him even prior to these payments. The sale was not, therefore, "subject to payment of these sums. They can not, therefore, be consideration or a part of the consideration for the sale deed.
5. This contention is unacceptable for more than one reasons. Firstly, [SECTION] of the [ACT] is not to be construed as modifying or repealing [SECTION] of the [ACT] unless there is any irreconciliable repugnancy between the two. We do not find any conflict between the two. [SECTION] cannot, therefore, be construed to mean that only such transfers are covered by it as are conditional on the payment of price. Secondly, the meaning of the expression "subject to" in [SECTION] is not to make the transfer conditional. It simply means that the sale is in consideration of payment of money. The consideration can assume three forms, namely, (a) debt, or (b) money or (c) stock. A sale in consideration of payment of money is said to be subject to the payment of money. Thirdly, the same expression "subject to" is used in the Explanation to [SECTION] and unless there is any indication to the contrary, it is to be presumed to be used in the same sense therein in which is used in the principal part of the section. The meaning of that expression had to be considered by the Supreme Court in [PRECEDENT] . The Court was of the view that the expression "subject to" qualified the word "sale" and not the word "Property". That is to say, the sale was subject to the liability imposed on the vendee for payment of the mortgage debt due from the vendor. Fourthly, the Explanation fully covers the present case inasmuch as it makes it clear that the money payable by the vendee towards the satisfaction of an unpaid mortgage or other incumbrance forms a part of the consideration for the sale. In the present case, the claim of the Delhi Development Authority for the unearned increase is a charge on the land. The payment towards the satisfaction of this charge is a part of the consideration for the sale under the Explanation to [SECTION]. Lastly, the Illustrations to [SECTION] place it beyond doubt that the payment of the unpaid amount charged on the property is a part of the consideration for the sale.
6. We may further point out that the vendee has expresly undertaken the liability to pay the Delhi Development Authority. This undertaking is given solely because the vendee is purchasing this property. There is no other reason for it. The payment to the Delhi Development Authority is, therefore, a part of the consideration for the sale.
7. We, therefore, answer the first question referred to us in the affirmative.
Question No.2:
8. Under [SECTION] of the [ACT] (hereinafter called the [ACT]) the municipal fund is constituted, inter alia, by all moneys raised by any tax, rate or cess levied for the purposes of the Act. [SECTION] of the [ACT] deals with the levy of various kinds of taxes. [SECTION] authorises the Corporation to levy a duty on the transfer of property. [SECTION] and [SECTION] of the [ACT] deal with the duty on transfer of property. The relevant part of [SECTION] is as follows:
"(2) The said duty shall be levied-
(a) in the form of a surcharge on the duty imposed by the [ACT], as in force for the time being in the Union Territory of Delhi, on every instrument of the description specified below, and
(b) at such rate as may be determined by the Corporation not exceeding five per cent on the amount specified below against such instruments: Description of instrument Amount on which duty should be levied. (I) Sale of immovable The amount or value of the property. Consideration for the sale, as set forth in the instrument "
[SECTION] is as follows:
"On the introduction of the duty on transfers of property-
(a) [SECTION] of the [ACT], as in force in Delhi shall be read as if it specifically required the particulars to be set forth separately in respect of property situated within and without Delhi:
(b) [SECTION] of the said Act shall be read as it if referred to the Corporation as well as the Government."
There is no reference at all to any duty on transfer of property in the [ACT].
9. The first question is whether the duty on transfer of property is levied under the [ACT] or is it levied under the [ACT]? The answer cannot be in doubt. The only provisions which authorise levy of this duty are those contained in the [ACT]. The duty must be said to be levied, therefore, there under. What is the effect of the provision of [SECTION] that the duty shall be levied "in the form of a surcharge on the duty imposed by the [ACT]"? The words "in the form of" are significant. They show that the reference to the [ACT] is only to borrow the form in which the stamp duty is imposed and collected. Just as the stamp duty is levied and collected by the sale and affixation of stamps to an instrument the duty on transfer of property is also to be levied by the sale and affixation of stamps on an instrument. Why is the transfer duty levied in the form of a "surcharge" on stamp duty? The answer simply is that the transfer duty is levied and collected over and above the stamp duty. This is why it is surcharge on the stamp duty. It is to be noted that the use of the word "surcharge" does not mean that the transfer duty is levied and recovered as a part of the stamp duty. Any such suggestion would be negatived by the following reasons: Firstly, the transfer duty is levied under the [ACT] while the stamp duty is levied under the [ACT]. Secondly, the transfer duty is payable to the Delhi Municipal Corporation and goes into the municipal funds while the stamp duty is payable to the government and goes into the Consolidated Fund of India or of the State concerned. Lastly, the transfer duty is not a percentage of the stamp duty. On the other hand, it is a percentage of the amount or value of the consideration for the sale as set forth in the instrument. The transfer duty is thus assessed independently of the stamp duty on the amount of the consideration for the sale. It is not assessed on the amount of the stamp duty as a percentage thereof. It is thus an independent duty and is not a part of the stamp duty.
10. Section 2(6 of the [ACT] defines "chargeable" to mean "chargeable under this Act." [SECTION] of the [ACT] defines "duly stamped" to mean "that such stamp has been affixed or used in accordance with the law for the time being in force in India". Under [SECTION] it is only when an instrument is "chargeable" with duty" and is "not duly stamped" that it can be impounded. Can the sale deed in question be impounded under [SECTION] because the transfer duty is either not paid or is insufficiently paid? The answer must be "No". For, the meaning of the expression "any instrument chargeable" or the expression "instrument not duly stamped" used in [SECTION] of the [ACT] is to be understood in the light of the definitions in [SECTION] and [SECTION] "Chargeable" means chargeable under the [ACT] only and not under any other Act. The [ACT] authorised the levy of stamp duty only and not of the duty on transfer of property. The latter is authorised by the [ACT] alone. The sale deed in question is not, therefore, "chargeable" to transfer duty under the [ACT] at all. It is not, therefore, an instrument chargeable to duty within the meaning of [SECTION] of the [ACT].
11. It is true that the words "stamp has been affixed or used in accordance with the law for the time being in force in India" in [SECTION] of the [ACT] are capable of being misunderstood if not read in the context of the other provisions of the [ACT]. The words "the law for the time being in force in India" can mean only the law governing the imposition of stamp duty such as the various amendments to the [ACT] and the Schedule thereof made by the various State Legislatures inasmuch as the subject of stamps is covered by all the three Lists in the [SECTION] to the [ACT]. The reason is that the expression "duly stamped is dependent of the expression "chargeable". Unless an instrument is chargeable to duty, the question of it being duly stamped does not arise. It is only the stamps for the payment of stamp duty which are to be affixed under the [ACT] to an instrument. The [ACT] does not deal with the affixation of stamps to an instrument for any purpose other than the levy of stamp duty. It is not concerned, therefore, with the affixation of stamps on an instrument for the levy of transfer duty. It is only the [ACT] which is concerned with the levy and recovery of stamp duty. It is also concerned with the affixation of stamps for the payment of transfer duty. This is why it is [SECTION] and not any provision of the [ACT] which provides that the transfer duty is to be levied in the form of a surcharge on the stamp duty. It is clear, therefore, that a sale deed being neither chargeable nor being stamped for the purpose of transfer duty under the [ACT], it cannot be impounded under [SECTION] of the [ACT] if the transfer duty is either not paid or is deficient.
12. [SECTION] of the [ACT] applies only [SECTION] and [SECTION] of the [ACT] to the recovery of duty on transfer of property. It the duty on transfer of property were to be a part of the stamp duty then like the stamp duty the duty on transfer of property would also be governed by all the provisions of the [ACT]. It would have been needless, therefore, for the Legislature to apply one [SECTION] and [SECTION] of the [ACT] to the duty on transfer of property. The reason is that only [SECTION] and [SECTION] can be relevant to the transfer duty. Unless [SECTION] of the [ACT] it is necessary to state clearly all the facts and circumstances affecting the chargeability of any instrument with duty and the amount of the duty with which it is chargeable. It is because [SECTION] has been made applicable that it has become necessary for the executant of every transfer deed to state therein the facts relating to the payment of duty on transfer of property and the amount of such duty payable on the particular transfer. Had [SECTION] not been applied, there would have been no duty on the executant to state these facts. The provisions of [SECTION] of the [ACT] that the transfer duty shall be levied in the form of a surcharge on stamp duty would then have become unworkable. It would have been impossible to assess the transfer duty unless the necessary facts were stated. [SECTION] is a corollary to [SECTION]. It provides a penalty for non-compliance with [SECTION] with intent to defraud the Government. Thereby the provisions of [SECTION] have become enforceable.
13. [SECTION] and [SECTION] of the [ACT] in a sense incorporate only the manner of the levy and recovery of the stamp duty and [SECTION] and [SECTION] from the [ACT] into the [ACT]. This incorporation is effected by the reference to these provisions in [SECTION] and [SECTION]. Therefore, even if the [ACT] were to be repealed, the provisions of the [ACT] which have been so incorporated in the [ACT] would continue to be a part of the latter Act. It is the [ACT], therefore, which is a complete code in itself for the purpose of the levy and recovery of the duty on transfer of property.
14. [SECTION] of the [ACT] applied only when an instrument is impounded under [SECTION] or it is sent to the Collector under [SECTION] of the [ACT]. Neither [SECTION] applied to the duty on transfer of property. They apply only to stamp duty. It would follow, therefore, that [SECTION] also does not apply to the duty on transfer of property.
15. In answer to question No.2, therefore, we are of the view that an instrument cannot be either impounded under [SECTION] or can be subjected to the imposition of a penalty under [SECTION] of the [ACT] on the ground that the duty on transfer of property levied under the [ACT] is either not paid or is insufficiently paid.
16. The reference is answered accordingly without any order as to costs.
17. Answered accordingly.