Basil Scott, Kt., C.J.
1. This is a reference to the Court under Section 59 of the Indian Stamp Act in the matter of a lease executed in favour of Gangaram Narayandas Teli by Vithoba valad Onkari Patel Vani, and the question, as stated in the reference, is whether in the case of a lease containing a stipulation regarding the payment by the lessee to the lessor of Government assessment, etc., for its eventual payment by the lessor to the Government, stamp duty should be calculated on the total amount of rent and Government assessment, etc. The stipulations in the lease are as follows :-
The above described land has been taken from you for five years and has been given into my possession from the same date. I will take great pains for cultivating the land and one half portion of every kind of produce that may be raised will be given to you every year, and the remainder will be appropriated by me. I will pay you every year Rs. 16-8-0 on account of Government assessment which you may pay. I will repair and keep in order the earthen bandbas round the fields. I shall protect the trees and manage to pay other dues. If, in any one year, I make default in giving you moiety of the produce, I shall pay you Rs. 100 as damages in addition to the assessment of Rs, 16-8-0.
2. The Article of the Indian Stamp Act which applies to the case is Article 35. Assuming this to be a lease for a terra in excess of five years, it would fall under Clause (a), Sub-clause (3), and the duty prescribed would be ” the same duty as on a Conveyance (No. 23) for a consideration equal to the amount or value of the average annual rent reserved,” and the question is whether the rent is anything more than the moiety of the produce contracted to be given, or whether it includes Rs. 16-8-0 which is payable to Government as assessment by whoever may hold the land under the Government. The term “rent” is explained in Woodfall on Landlord and Tenant as “a retribution or compensation for the lands demised.” “Rent must always be a profit;…. This profit must also be certain, or capable of being reduced to a certainty by either party, and must issue out of the thing granted, and not be part of the land, or thing itself.” Now applying that description to the present case, it appears to us that the only profit for the lands demised which the landlord would realise is the half of the produce, and that Rs. 16-8-0 is not part of the profit. It is a liability attaching to the thing itself in the hands of the lessor. The lessor under this covenant is really in no better position than if he had a covenant by a tenant to pay the assessment direct to Government, and if it were paid direct to Government, it could not be contended, as is admitted by the Government Pleader, that Rs. 16-8-0 should be deemed to be part of the rent. We answer the question referred in the negative. A question arising upon this lease appears not to have occurred to the referring authority, viz. whether the lease does not fall under the exemption from Article 35, being a lease executed in the case of a cultivator for the purposes of cultivation, the average annual rent reserved not exceeding Rs. 100.