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PETITIONER: THE MEMBER, BOARD OF REVENUE

       Vs.

RESPONDENT: ARTHUR PAUL BENTHALL.

DATE OF JUDGMENT: 04/10/1955

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA AIYAR, N. CHANDRASEKHARA DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER

CITATION:  1956 AIR   35            1955 SCR  (2) 842

ACT: The  Indian Stamp Act (II of 1899), ss. 5  and  6-Expression "distinct matters" in s. 5 and "description" in s. 6-Whether have  different connotations-Instrument in  question-Whether comprised distinct matters.

HEADNOTE: Held  per S. R. DAS, ACTING C. J., VENKATARAMA AYYAR,  JAFER IMAM  and CHANDRASEKHARA AIYAR JJ. (BHAGWATI J.  dissenting) the contention that the word "matter" in s. 5 of the  Indian Stamp  Act  was intended to convey the same meaning  as  the word "description" in s. 6 is without force.  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. When two words of different import are used in a statute  in two  consecutive  provisions, it cannot be  maintained  that they are used in the same sense and therefore the expression "distinct  matters" in s. 5 and "description" in s.  6  have different connotations. It is 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  separate  or  not. 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. Held, that the instrument in question, Exhibit A,-the  power of attorney-comprised distinct matters within the meaning of s.  5  of  the  Indian  Stamp  Act  in  respect  of  several capacities of the respondent mentioned therein. Per BHAGWATI J. (dissenting).-The fact that the donor of the power of attorney executes it in different capacities is not sufficient  to  constitute the  instrument,  one  comprising distinct  matters and thus requiring to be stamped with  the aggregate   amount  of  the  duties  with   which   separate instruments  each  comprising  or relating to  one  of  such

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matters would be chargeable under the Act, within the  mean- ing of s. 5 of the Indian Stamp Act. The  instrument  in question, Exhibit A, does  not  comprise distinct  matters  but comprises one matter  only  and  that matter  is the execution of a general power of  attorney  by the donor in favour of 843 the donees constituting the donees his attorneys to act  for him in all the capacities he enjoys. It  is  within  the  very nature of  the  general  power  of attorney  that  all  the distinct acts which  the  donor  is capable of performing are comprised in one instrument  which is executed by him and therefore whatever acts the donor  is capable of performing whether in his individual capacity  or in his representative capacity as trustee or as executor  or administrator  are also comprised within the instrument  and are  not distinct matters to be dealt with as such so as  to attract the operation of s. 5 of the Indian Stamp Act. Secretary,  Board  of Revenue, Madras v.  Alagappa  Chettiar I.L.R.   [1937]   Mad.  553,  Ansell   v.   Inland   Revenue Commissioners  [1929]  1  K.B.  608,  Reversionary  Interest Society v. Commissioners of Inland Revenue [1906] 22  T.L.R. 740, Davis v. Williams [1804] 104 E.R. 358, Bowen v.  Ashley [1805] 127 E.R. 467, Good son v. Forbes [1815] 128 E.R. 999, Freeman v. Commissioners of Inland Revenue [1870-71] L.R.  6 Exch. 101, Allen v. Morrison [1828] 108 E.R. 1152, Reference under Stamp Act, s. 46, [1886] I.L.R. 9 Mad. 358,  Reference under Stamp Act, s. 46, [1891] I.L.R. 15 Mad. 386, Reference under  Stamp  Act,  s. 46, [1892] 2 M.L.J.  178,  and  Vidya Varuthi v. Balusami, 48 I.A. 302, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 159 of 1954. Appeal  by Special Leave from the Judgment and  Order  dated the  27th  day of June 1952 of the Calcutta  High  Court  in Matter No. 214 of 1951-A reference under s. 57 of the Indian Stamp Act. M.   C. Setalvad, Attorney-General of India (B.  Sen and  P. K. Bose, with him) for the appellant. S.   Chaudhury,  (S.   N. Mukherjee, B. N. Ghosh and  A.  K. Basu, with him) for the respondent. 1955.  October 4. VENKATARAMA  AYYAR  J.-This appeal raises a  question  under section  5  of  the  Indian  Stamp  Act  II  of  1899.   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 other Companies,  and had on occasions acted as liquidator of some Com 107 844 panies, 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 section 31 of the Stamp  Act for adjudication of duty payable on a  power  of- attorney,  marked as Exhibit 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  severally  to act for him  in  his  individual capacity  and  also  as  executor,  administrator,  trustee, managing  agent, liquidator and all other  capacities.   The Collector referred the matter under section 56(2) of the Act

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to the decision of the Chief Controlling Revenue  Authority, who  eventually  referred it under section 57  to  the  High Court  of  Calcutta stating his own opinion that  the  stamp duty  was  payable  on the power  "for  as  many  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 their opinion.  The learned Chief Justice with whom Das,  J. agreed, held that the different capacities of the  executant did not constitute distinct matters for purposes of  section 5  of  the  Act, and that the proper  duty  payable  on  the instrument was Rs. 10 under article 48(d) of Schedule 1-A of the Stamp Act as amended by section 13 of Bengal Act III  of 1922.   S.  R.  Das Gupta, J. was of the  opinion  that  the different capacities of the executant were distinct  matters for  the purposes of section 5, and that the instrument  was chargeable  with  the aggregate amount of  duty  payable  if separate  instruments  were executed in respect of  each  of those capacities.  In the 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,   and  contends  that  the  instrument  in   question comprises   distinct  matters,  and  must  be   stamped   in accordance with section 5. The  statutory  provisions  bearing  on  the  question   are sections 3 to 6 of the Act.  Section 3 is the charg- 845 ing   section,  and  it  enacts  that  subject  to   certain exemptions,  every instrument mentioned in the  Schedule  to the  Act  shall be chargeable with the duty  of  the  amount indicated  therein as the proper duty therefor.   Section  4 lays  down  that when in the case of any sale,  mortgage  or settlement  several instruments are employed for  completing the  transaction,  only  one of them  called  the  principal instrument is chargeable with the duty mentioned in Schedule 1, and that the other instruments are chargeable each with a duty  of  one rupee.  Section 5 enacts that  any  instrument comprising or relating to several distinct matters shall  be chargeable  with  the aggregate amount of  the  duties  with which  separate instruments, each comprising or relating  to one  of  such matters, would be chargeable  under  the  Act. Section 6, so far as is material, runs as follows: "Subject to the provisions of the last preceding section, an instrument  so framed as to come within two or more  of  the descriptions   in  Schedule  I,  shall,  where  the   duties chargeable thereunder are different, be chargeable only with the highest of such duties". The  point for decision in this appeal is as to the  meaning to  be given to the words "distinct matters" in  section  5. The contention of the respondent which found favour with the majority  of the learned Judges in the court below  is  that the word "matters" in section 5 is synonymous with the  word "description"  occurring  in section 6, and that  they  both refer to the several categories of instruments which are set out  in the Schedule.  The argument in support of this  con- tention  is this: Section 5 lays down that the duty  payable when the instrument comprises or relates to distinct matters is  the  aggregate  of what would  be  payable  on  separate instruments   relating  to  each  of  these   matters.    An instrument  would be chargeable under section 3 only  if  it fell within one of the categories mentioned in the Schedule. Therefore,   what  is  contemplated  by  section  5   is   a combination  in  one  document of  different  categories  of instruments  such  as sale and mortgage, sale and  lease  or

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mortgage  and lease and the like, But when the  category  is one 846 and the same, then section 5 has no application, and as,  in the present case, the instrument in question is a  power-of- attorney,  it  would fall under article 48 (a)  in  whatever capacity it was executed, and there being only one category, there are no distinct matters within section 5. We  are  unable  to  accept the  contention  that  the  word "matter"  in  section  5 was intended  to  convey  the  same meaning  as  the  word "description" in section  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.  If A sells Black-acre  to  X and  mortgages White-acre to Y, the transactions fall  under different  categories, and they are also  distinct  matters. But  if A mortgages Black-acre to X and mortgages  Whiteacre to Y, the two transactions fall under the same category, but they would certainly be distinct matters.  If the  intention of  the  legislature  was  that  the  expression   ’distinct matters’  in  section  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  mat- ters"  in  section 5 and "descriptions" in  section  6  have different connotations. It  is  urged  against  this conclusion  that  if  the  word "matters"  in  section 5 is construed  as  meaning  anything other than "categories" or in the phraseology of section  6, "descriptions"  mentioned in the Schedule, then there  could be  no conflict between the two sections, and the clause  in section  6 that it is "subject to the provision of the  last preceding section" would be meaningless and useless.  We see no  force in this contention.  Though the topics covered  by sections  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 part- 847 nership  carried on by members of a family is wound  up  and the  deed  of dissolution effects also a  partition  of  the family  properties  as  in Secretary, Board  of  Revenue  v. Alagappa Chettiar(1), the instrument can be viewed both as a deed  of  dissolution  and a deed of  partition,  and  under section 6, the duty payable will be the higher duty as on an instrument  of partition.  But supposing by that  very  deed one  of  the members creates a charge or mortgage  over  the properties allotted to his share in favour of another member for moneys borrowed by him for his own purposes, that  would be a distinct matter which would attract section 5. Now, but for  the saving clause, a contention might be advanced  that sections  5  and 6 are mutually exclusive, and  as  the  in- strument  falls  within  section 6, the  only  duty  payable thereon  is  as on an instrument of partition and  no  more. The purpose of the clause in section 6 is to repel any  such contention. Considerable stress was laid by Mr. Chaudhury on the  scheme of  the  Act  as embodied in sections 3  to  6  as  strongly supporting  the view that ’matters’ in section 5  meant  the same  thing  as ’description’ in section 6. He  argued  that under section 3 the duty was laid not on all instruments but on  those  which were of the descriptions mentioned  in  the

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Schedule,  that section 4 enacted a special  provision  with reference  to  three  of the  categories  mentioned  in  the Schedule,  sale (conveyance), mortgage and settlement,  that if they were completed in more than one instrument, not  all of them were liable for the duty specified in the  Schedule, but only one of them called the principal document, and that section  6 provided that when the instrument fell under  two or more of the categories in the Schedule, the duty  payable was  the highest payable on any one of them, that  thus  the categories  in  the  schedule were the pivot  on  which  the entire  scheme revolved, and that in construing 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 (1)  I.L.R. [1937] Mad. 553. 848 something different from "distinct categories" would be,  it was argued, to introduce a concept foreign to the scheme  of the enactment. The error in this argument lies in thinking that the  object and  scope  of sections 4 to 6 are the same, which  in  fact they  are  not.  Section 4 deals with a  single  transaction completed  in  several  instruments, and section  6  with  a single  transaction which might be viewed as  falling  under more than one category, whereas section 5 applies only  when the  instrument comprises more than one transaction, and  it is  immaterial for this purpose whether  those  transactions are  of the same category or of different  categories.   The topics   dealt  with  in  the  three  sections  being   thus different, no useful purpose will be served by referring  to section 4 or section 6 for determining the scope of  section 5   or  for  construing  its  terms.   It  is  not   without significance  that the legislature has used three  different words  in relation to the three sections,  ’transaction’  in section  4,  matter’  in section  5,  and  ’description’  in section 6. In  support  of his contention that  ’distinct  matters’  in section  5 meant only different categories, learned  counsel for the respondent relied on certain observations in  Ansell v.  Inland Revenue Commissioners(1).  There, the  instrument under consideration was a deed of settlement which comprised certain Government securities as also other investments, and under  the Stamp Act, 1891, it was chargeable with a  single duty ad valorem on the value of all the properties  settled. By  section  74, sub-section (1) of the Finance  Act,  1910, voluntary  dispositions were chargeable with a higher  stamp duty  as  on a conveyance; but Government  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 section  74,  sub-section (1) of the Finance  Act,  1910  on account   of  other  investments.   Answering  it   in   the affirmative, Rowlatt, J. observed: (1)  [1929] 1 K.B. 608, 849 "If two different classes of property are being  transferred by  the same words of assignment in the same  document,  and those two different classes of property in the same document are  different from the point of view of the Stamp  Act  and taxation,  it seems to me in common sense that they must  be distinct matters". The  respondent wants to read these observations as  meaning that  where  the matters are not dealt with  separately  for purposes of stamp duty, then they are not distinct  matters.

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This,  however, 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 distinct matters.  There is nothing either in the deci- sion  or  the  observations  quoted  above  to  support  the contention   of  the  respondent  that  if  the   instrument comprises matters falling within the same description, it is not   to  be  construed  as  comprising  distinct   matters. Reliance was also placed on the observations in Reversionary Interest  Society v. Commissioners of Inland Revenue(1),  in which  it  was  held that a statutory  declaration  for  the purpose  of carrying through a transaction was liable for  a single  stamp  duty.   There, the declaration  was  made  by husband  and wife, and in view of the purpose for  which  it had  to be used, it was construed as one declaration.   This is a decision on the facts, and is not of much assistance. In the view, then, that section 5 would apply even when  the instrument  comprises matters of the same  description,  the point for decision is whether the instrument proposed to  be executed by the respondent is a single power-of-attorney  or a  combination  of several of them.  The contention  of  Mr. Chaudhury  is  that  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 that therefore the  instrument must be construed as a single power-of attorney liable for a single duty under article 48(d) (1)  [1906] 22 T.L R. 740. 850 of  the Schedule.  The contention of the appellant,  on  the other hand, is that though the instrument is executed by one person,  if  he fills several capacities and  the  authority conferred is general, there would be distinct delegations in respect of each of those capacities, and that the instrument should  bear the aggregate of stamp duty payable in  respect of each of such capacities.  The question is which of  these two contentions is correct. We  are  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  so  forth.  Thus, if  A  executes  one  power authorising  X to manage one estate and Y to manage  another estate,  there would really be two distinct matters,  though there is only one instrument executed by one person.  But if both  X and Y are constituted attorneys to act  jointly  and severally in respect of both the estates, then there is only one  delegation  and one matter, and  that  is  specifically provided  for in article 48(d).  Conversely, if a number  of persons  join  in  executing one instrument,  and  there  is community  of  interest between them in  the  subject-matter comprised therein, it will be chargeable with a single duty. This  was held in Davis v. Williams(1), Bowen v.  Ashley(1), Good-son v. Forbes(1) and other cases.  But if the interests of  the  executants  are separate, the  instrument  must  be construed  as comprising distinct matters.  Vide Freeman  v. Commissioners  of  Inland  Revenue(1).   Applying  the  same principle  to  powers-of-attorney, it was held in  Allen  v. Morrison(1)  that  when members of a mutual  insurance  club executed  Single  power,  it related to one  matter  ,  Lord Tenterdon,  C.  J.  observing that "there  was  certainly  a

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community of (1)  [1804] 104 E.R. 358. (2)  [1805] 127 E.R. 467, 469. (3)  [1815] 128 E.R. 999, 1000-1001. (4)  [1870-71] L.R. 6 Exch. 101. (5) [1828] 108 E.R. 1152, 1153. purpose  actuating  all  the  members  of  this  club".   In Reference  under  Stamp Act, s. 46(1), a  power-of  attorney executed  by  thirty-six persons in relation to  a  fund  in which  they were jointly interested was held to  comprise  a single  matter.  A similar decision was given  in  Reference under  Stamp  Act, s. 46(2) where  a  power-of-attorney  was executed  by  ten  mirasdars empowering  the  collection  of communal income appurtenant to their mirasi rights.  On  the other  hand, where several donors having separate  interests execute  a single power-of-attorney with reference to  their respective properties as, for example, when A constitutes  X as  attorney for management of his 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  matters.   It  was  so  decided   in Reference  under  Stamp Act, 8. 46(3).  Thus,  the  question whether  a power-of attorney relates to distinct matters  is one  that will have to be decided on a consideration of  the terms of the instrument and the nature and the extent of the authority conferred thereby. 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 & 18, Geo.  5,  Ch. 10), section 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  the First Schedule to the Stamp Act, 1891, shall be charged with duty  more than once by reason only that more  persons  than 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 the fact that there are (1)  [1886]  I.L.R. 9 Mad. 358. (2) [1891] I.L.R. 15 Mad.  386. (3) [1892] 2 M.L.J. 178. 108 852 several donors or donees mentioned in it, or that it relates to more than one matter. Now,  considering  Exhibit  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.   It is, as has been stated above, settled law  that when two persons join in executing a power-of-attorney, whe- ther  it  comprises distinct matters or not will  depend  on whether  the  interests of the executants  in  the  subject- matter  of the power are separate 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.  That will be in consonance  with

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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.  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 be 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. 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 cestui que trust in whom the equitable estate vests.  Under the 853 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.  Vide Vidya  Varuthi  v. Balusami(1).   In such cases, the legal title is  vested  in the  institution,  the mahant or shebait being  the  manager thereof, and any delegation 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- tive  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. 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  section  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. 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.  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. When  an  executor,  for example,  sells  one  property  for discharging the debts of the testator and (1)  [1921] 48 I.A. 302. 854 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

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capacity as executor.  In our opinion, there is no substance in this contention. In  the  result, we are of the opinion, differing  from  the majority of the learned Judges of the court below, that  the instrument, Exhibit 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.   This appeal will accordingly be allowed.  The respondent will pay the costs of the appellant here and in the court below. BHAGWATI  J.-I  regret  I  am  unable  to  agree  with   the conclusion reached in the Judgment just delivered. While  agreeing in the main with the construction  put  upon sections  4, 5 and 6 of the Act and the connotation  of  the words "distinct matters" used in section 5, 1 am of the view that  the question still survives whether the instrument  in question  is a single power of attorney or a combination  of several  of them.  The argument which has impressed my  Bro- ther Judges forming the majority of the Bench is that though the  instrument is executed by one individual, if  he  fills several  capacities and the authority conferred is  general, there  would be distinct delegations in respect of  each  of those   capacities  and  the  instrument  should  bear   the aggregate  of stamp duty payable in respect of each of  such capacities.  With the greatest respect I am unable to accede to that argument.  I agree that the question whether a power of  attorney  relates to distinct matters is one  that  will have to be decided on the consideration of the terms of ’the instrument  and the nature and the extent of the  authority, conferred thereby.  The fact, however, that the donor of the power of attorney executes it in different capacities is not sufficient  in my opinion to constitute the  instrument  one comprising distinct matters and thus requiring to be 855 stamped  with the aggregate amount of the duties with  which separate  instruments each comprising or 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 the donees jointly and  severally his attorneys for him and in his name and  on his  behalf  to act for him in his individual  capacity  and also  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, thereafter be in- terested  in  any  such capacity as aforesaid  and  also  as executor,   administrator,  trustee  or  in   any   capacity whatsoever  as occasion shall require.  No doubt,  different capacities enjoyed by the donor are combined herein but that does not constitute him different individuals thus  bringing this  instrument  within  the mischief  of  section  5.  The executants of the instrument are not several individuals but is only one individual, the donor himself, 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 could exercise all the powers as the full owner qua whatever right, title and interest be enjoys in the property, whether it  be an absolute interest or a limited one. he may be  the absolute  owner of the property or may have a life  interest therein,  he  may have a mortgagee’s interest or  a  lessees interest  therein, he may be a dominant owner of a  tenement or  may be a mere licensee; but whatever interest be  enjoys in  that  property will be the subject-matter of  the  power which  he  executes in favour of the donee.  He  may,  apart from this individual interest which he enjoys therein, be  a

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trustee  of  certain  property and be  may  also  enjoy  the several  interests described above in his capacity  as  such trustee.  It may be that, in his turn he may be  accountable to  the  beneficiaries  for the due  administration  of  the affairs  of  the trust but that does not mean  that  he,  as trustee,  is not entitled to exercise all these powers,  the trust property having vested in him, and he being  therefore in a position to exercise 856 all these powers in relation thereto.  The same would be the position  if he were an executor or an administrator  of  an estate, in possession of the estate of the deceased as such. The  property of the deceased would vest in him  though  his powers  of  dealing  with the same  would  be  circumscribed either  by the provisions of the testamentary instrument  or the  limitations  imposed upon the same by law.   All  these circumstances  would  certainly impose  limitations  on  his powers  of  dealing with the properties but  that  does  not detract  from the position that he is entitled to deal  with those  properties  and exercise all the powers  in  relation thereto  though  with the limitations imposed upon  them  by reason  of  the  capacities which he  enjoys.   It  follows, therefore, that, though enjoying different capacities, he is the  same  individual  who  functions  though  in  different capacities   and  conducts  his  affairs  in   the   various capacities  which he enjoys but as a single individual.   He is  not  one  individual  when  be  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  he  is acting  as  an  executor  or administrator of a deceased person.  In whatever capacity he is  acting  he is the same individual dealing  with  various affairs  with which he is concerned though with the  limita- tions imposed upon his powers of dealing with the properties by  reason  of  the  properties  having  vested  in  him  in different capacities. I  am  therefore  of  the opinion  that  the  instrument  in question  does not comprise distinct matters  but  comprises one  matter  only  and that matter is  the  execution  of  a general  power  of attorney by the donor in  favour  of  the donees constituting the donees his attorneys to act for  him in  all the capacities which he enjoys.  The  instrument  in question  cannot be split up into separate instruments  each comprising or relating to a distinct matter in so far as the different capacities of the donor are concerned.  A  general power  of attorney comprises all acts which can be  done  by the  donor himself, whatever be the capacity  or  capacities which he enjoys and cannot be split up 857 into  individual  acts which the donor is  capable  of  per- forming and which he appoints his attorney to do 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 performing 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 performing whether in his individual  capacity or in his representative capacity as trustee or as  executor or  administrator are also comprised within  the  instrument and are not distinct matters to be dealt with as such so  as to attract the operation of section 5. I am therefore of the opinion that the conclusion reached by the  majority  Judges  in the High Court  of  Judicature  at Calcutta  was  correct and would  accordingly  dismiss  this Appeal with costs.

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BY THE COURT.-In accordance with the opinion of the majority the  Appeal  is  allowed with costs here and  in  the  Court below.