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

The respondent was, at the material time the Managing Director of Messrs. Bird and Co. Ltd., and of Messrs. F. W. 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 the other Companies, and had on occasions acted as liquidator of some Companies, 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 S. 31 of the Stamp Act for adjudication of duty payable on a power-of attorney, market as Ex. 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 Several to act for him in his individual capacity and also as executor, administrator, trustee, managing agent, liquidator and all otherCollector referred the matter under S. 56(2) of the Act to the decision of the Chief Controlling Revenue Authority, who eventually referred it under S. 57 to the High Court of Calcutta stating his own opinion that the stamp duty was payable on the power for as may respective capacities as the principal executes the power". The reference was heard by a Bench consisting of the Chief Justice, Das J. and S. R. Das Gupta J., who differed in theirlearned Chief Justice which whom Das. J agreed, held that the different capacities of the executant did not constitute distinct matters for purposes of S. 5 of the Act and that the proper duty payable on the instrument was Rs.10 under Art. 48(d) of Sch. 1-A, Stamp Act as amended by S. 13 of Bengal Act 3 of 1922.R. Das Gupta J. was of the opinion that the different capacities of the executant were distinct matters for the purposes of S. 5 and that the instrument was chargeable with the aggregate amount of duty payable if separate instruments were executed in respect of each of thosethe 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,

Reasoning:
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.