Case: The Member, Board Of Revenue Vs. Arthur Paul Benthall

the authority conferred thereby.11. It may be mentioned that questions of this character cannot now arise in England in view of the special provision contained in the Finance Act, 1927 (17 and and 18, Geo.5.Ch.10), S. 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 First Schedule to the stamp Act, 1891, shall be charged with duty more than once by reason only that more persons then one are named in the instrument as donors or donees (whether jointly or severally or otherwise), of the powers thereby conferred or that those powers relate to more than one matter",There 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 fact that there are several donors or donees mentioned in it, or that it relates to more than one matter.12. Now, considering Ex. A in the light of the above discussion, the point for determination is whether 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 well- recognised principles applicable to the matter.13. It is, as has been stated above, settled law that when two persons join 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 separae 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 distinct matters.14. That will be in consonance with the generally accepted notion of what are distinct matters. And that certainly was the view which the respondent 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.15. But it is contended by Mr. Chaudhury that the fact that the respondent filled several capacities would not affect the character of the instrument as relating to a single matter, as the delegation thereunder extended to whatever the respondent could do, and that it would 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 .16. 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; but then he holds it for the benefit of the cestuique trust in whom the equitable estate vests. Under the 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 trustee as in the case of mutts and temples.17. VideVidya Varuthi v. Balusami", AIR 1922 PC 123 (L). In such cases, the legal title is vested in the institution, the Mahant orshebaitbeing the manager thereof, and any delegation of authority by him can only be on behalf of the institution which here presents.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 join in executing a power in respect of matters which are unrelated.18. There 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 S. 5 . 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.19. It was finally contended by Mr. Chaudhury that if every 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.20. 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. This, he contended would destroy the very basis of a general power-of attorney. The fallacy in this argument is in mixing up the capacity which a person possesses with acts exercisable by virtue of that capacity.21. When an executor, for example, sells one property for discharging the debts of the testator and 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 opinion, there is no substance in this contention.22.In the result, we are of the opinion, differing from the majority of the learned Judges of the court below, that the instrument, Ex. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]4. We are unable to accept the contention that the word "matter in S. 5 was in tended to convey the same meaning as the word" description " in S. 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.Ifthe intention of the legislature was that the expression " distinct matters in S. 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 S. 5 and "descriptions" in Section 6 have differentthe topics covered by Ss. 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 partnership carried on by members of a family is would up and the deep of dissolution effects also a partition of the family properties as in - Board of Revenue, Madras v. Alagappa Chettiar, AIR 1937 Mad 308   (SB) (A),the instrument can be viewed both as a deed of dissolution and a deed of partition, and under S. 6, the duty payable will be the higher duty as on a instrument ofbut for the saving clause, a contention might be advanced that Section 5 and 6 are mutually exclusive, and as the instrument falls within S. 6, the only duty payable thereon is as on an instrument of partition and no more. The purpose of the case in S. 6 is to repeal any sucherror in this argument lies in thinking that the object and scope of Ss. 4 to 6 are the same, which in fact they arehowever, 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 distinctthe view, then, that S. 5 would apply even when the instrument comprises matters of the same description, the point for decision is whether the instrument proposed to the executed by the respondent is a single power-of attorney or a combination of several ofare 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, which is the subject matter on which it operates and sois 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 fact that there are several donors or donees mentioned in it, or that it relates to more than oneis, as has been stated above, settled law that when two persons join 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 separae 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 distinctwill be in consonance with the generally accepted notion of what are distinct matters. And that certainly was the view which the respondent himself took of the matter when he expressly recited in the power that he executed it both in his individual capacity and in his othera person is appointed trustee, the legal title to the estate does, under the English law undoubtedly vest in him; but then he holds it for the benefit of the cestuique trust in whom the equitable estate vests. Under the 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 trustee as in the case of mutts andbeing 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 S. 5 . 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 offallacy in this argument is in mixing up the capacity which a person possesses with acts exercisable by virtue of thatthe result, we are of the opinion, differing from the majority of the learned Judges of the court below, that the instrument, Ex. 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.