Full Judgment
Nanabhai Haridas, J.
1. The answer to be returned by us to the question referred, must depend upon the view we take of the nature of the agreement sent up by the Commissioner. If it be regarded as one 'not otherwise provided for by this Act' (i.e., Act I of 1879), then it is undoubtedly chargeable with a duty of eight annas under Schedule I, Article 5(c).
2. We are thus led to consider two other provisions of the Act. Is it a lease within the meaning of it? If not, is it an agreement 'for or relating to the sale of goods' under Schedule II, Article v 2 (a)? It is an agreement for the consumption of 'grass' growing on a certain piece of land for a time and consideration stated therein. If such grass is 'immoveable property,' the agreement is a lease within the definition of that expression contained in Clause 12, Section 3 of the Act. The expression 'immoveable property' is nowhere defined in the Act itself. We must, therefore, take its definition from the General Clauses Act (I of 1868). That definition includes 'land, benefits to arise out of land, and things attached to the earth 'Section 2, Clause (5)--a definition large enough to include growing grass; and this would seem to be in accordance with English law--Crosby v. Wadsworth 6 East. 602; Carrington v. Roots 2 M. and W. 248. Wherever the above definition is intended to be departed from, the Legislature has taken good care so to express itself. See the Registration Act (No. III, 1877), Section 3, and the Transfer of Property Act (No. IV, 1882), Section 3. Such being the case, the agreement is a lease within the meaning of Act No. I of 1879, and as such sufficiently stamped as held by the Collector.
3. But if growing grass is not 'immoveable property,' the agreement is one for or relating to the sale of goods, the price being fixed with reference to the quantity to be consumed by the cattle, and as such it is exempt from all stamp duty under the Act-see Schedule II, Article 2(a). In either view of the matter, therefore, the opinion of the Inspector-General of Registration and Stamps is erroneous.
Birdwood, J.
4. I do not think that the instrument in question is a lease. The person in whose favour it was executed took the farm of certain pasture land at Poona. When he gave contracts for grazing cattle for certain periods on this land to different persons, he did not part with the possession of the land; nor did those persons undertake to cultivate, occupy or pay or deliver rent for the land or the grass. These contracts do not in my opinion, come within the definition of a lease contained in Section 3, Clause (12) of Act I of 1879. Nor would the acquisition of the right to graze be ordinarily regarded as a purchase of goods. I am, therefore, unable to concur in the opinion expressed by Mr. Justice Nanabhai.
5. I am of opinion that the instrument is an agreement, and that it is chargeable with a stamp duty of eight annas under Clause (c) of Article 5 of Schedule I of Act I of 1879.
Parsons, J.
6. In my opinion the instrument in question is not a lease within the definition of Section 3(12) of the Indian Stamp Act, 1879, but is an agreement, and, therefore, chargeable with a stamp duty of eight annas under Article 5(c) of Schedule I to the said Act.