Kailasam, Offg.CJ.- This is a reference under section 57 of the Indian Stamp Act by the Board of Revenue (Land Revenue), Madras. The facts of the case, briefly stated, are as follows: Respondents 1 to 8 mortgaged the premises bearing Nos. 165 to 168, Devaraja Mudali Street, Madras, with the Trustees of Veera Sriramulu Chetti Charities, Madras and borrowed a sum of Rs. 30,000 Subsequently on 9th November, 1964 they raised a loan of Rs. 50,000 from the Nedungadi Bank Ltd., to discharge the earlier loan and for completing the construction. On the same day, they executed a lease deed in favour of the said Bank in respect of the first floor on a monthly rent of Rs. 500 for a period of ten years to be adjusted against the mortgage amount due to the Bank. The 9th respondent is the guarantor of the mortgage debt. When the mortgage document was presented for registration, the Sub-Registrar levied a deficit stamp duty of Rs. 3,625 and a penalty of Rs. 10 on 5th January, 1965. Aggrieved by this,the respondent took up the matter on appeal to the Board of Revenue. The Board of Revenue dismissed the appeal holding that the mortgage in question was covered by Article 40 (a) of Schedule I to the Indian Stamp Act, 1899. Aggrieved by this order the respondents preferred W.P. No. 1027 of 1966 to this Court praying for the issue of a writ of mandamus directing the Board of Revenue to refer the case to this Court under section 57 of the Indian Stamp Act. While disposing of the writ petition, this Court directed the Board of Revenue to decide whether the mortgage in question, apart from falling under Article 40 of the Indian Stamp Act, is liable to surcharge under section 135 of the City Municipal Corporation Act, 1919 or rot. While disposing of the writ petition, this Court directed the Board of Revenue to decide whether the mortgage in question, apart from falling under Article 40 of the Indian Stamp Act, is liable to surcharge under section 135 of the City Municipal Corporation Act, 1919 or rot. The Board of Revenue expressed its view that the mortgage in question is also liable to surcharge under section 135 of the Madras City Municipal Corporation Act, and submitted this case under section 57 of the Indian Stamp Act raising the question as follows: “ Whether the deed of mortgage dated 9th November, 1964, executed by the respondents 1 to 8 and guaranteed by the 9th respondent is liable to surcharge under section 135 of the City Municipal Corporation Act of 1919 or not.” The mortgage deed recites that the mortgagors had approached the mortgagee for a loan of Rs. 50,000 repayable with interest at 6 per cent. per annum with quarterly rests on the specific undertaking to let out the entire first floor of the mortgaged property to the mortgagee Bank on a monthly rent of Rs. 500 for a period of ten years so that the mortgage amount may be discharged by the appropriation of the rents payable by the mortgagee. The document further recited that the mortgagors thereby created and secured a simple mortgage in favour of the mortgagee for due payment of Rs. 50,000 and interest thereon at six per cent. per annum with quarterly rests. A lease deed was also executed on the same day when the above mortgage deed was executed agreeing to let out the entire first floor of the mortgaged property to the mortgagee Bank on a monthly rent of Rs. 500 for ten years to be adjusted against the above mentioned mortgage amount due by the mortgagors to the mortgagee. 2. Now, the question for consideration is whether the mortgage deed, dated 9th November, 1964 is liable to surcharge under section 135 of the City Municipal Corporation Act, 1919. Section 98 (b) of the City Municipal Corporation Act enables the Council to levy a duty on certain transfers of property in the shape of an additional stamp duty. Section 135 is important for the purpose of this case and we will extract it in full: “135. Section 98 (b) of the City Municipal Corporation Act enables the Council to levy a duty on certain transfers of property in the shape of an additional stamp duty. Section 135 is important for the purpose of this case and we will extract it in full: “135. The duty on Transfers of Property shall be levied- (a) in the form of a surcharge on the duty imposed by the Indian Stamp Act, 1899, as in force for the time being in the State of Madras, on every instrument of the description specified below, which relates to immovable property situated within the limits of the City ; and (b) at such rate as may be fixed by the State Government not exceeding five per centum on the amount specified below against such instrument: Description of instrument Amount on which duly should be levied (i) Sale of immovable property The amount or value of the consideration for the sale, as set forth in the instrument. (ii) Exchange of immovable property. The value of the properly or the greater value, as set forth in the instrument. (iii) Gift of immovable property. The value of the property as set forth in the instrument. (iv) Mortgage with possession of immovable property. The amount secured by the mortgage, as set forth in the instrument." The section enables a duty on transfers of property to be levied. The duty is to be in the form of a surcharge on. the duty imposed by the Indian Stamp Act. The surcharge is leviable on. every instrument of the description specified in the section, which relates to immovable property situated within the limits of the city. The instruments that are liable to surcharge are mentioned as sale of immovable property, exchange of immovable property, gift of immovable property and mortgage with possession of immovable property. Section 135 (b) specifies the rates, with which we are not concerned. On a reading of section 135 (a), it appears that a surcharge is leviable on. the duty imposed by the Indian Stamp Act. But, the latter part of the section provides that every instrument described in the section, which relates to immovable property, is liable to surcharge. Thus, it is apparent from the section that a duty is leviable on transfers of property at the rates specified in section 135 (b). the duty imposed by the Indian Stamp Act. But, the latter part of the section provides that every instrument described in the section, which relates to immovable property, is liable to surcharge. Thus, it is apparent from the section that a duty is leviable on transfers of property at the rates specified in section 135 (b). This duty shall be in form of surcharge on the duty imposed by the Indian Stamp Act. In other words, this duty will be in addition to the duty imposed by the Indian. Stamp Act. 3. In this case, on a reading of the mortgage document, we are unable to hold that it is a mortgage with possession of immovable property. Section 58 (d) of the Transfer of Property Act defines ‘usufructuary mortgage’. The conditions necessary for creating a usufructuary mortgage are that (1) the mortgagor should either deliver possession or expressly or by implication bind himself to deliver possession of the mortgaged property to the mortgagee and (2) the mortgagor must authorise the mortgagee to retain such possession until payment of the mortgage money and to receive the rents and profits accruing from the property in lieu of interest or in payment of the mortgage money. In this case, by the document, the mortgagors have not delivered possession. But, on the other hand, they undertook to Jet out the entire first floor on a monthly rent of Rs. 500 for a period of ten years, though the rent, that is payable, is to be adjusted towards the interest and the mortgage money. The mortgagors did not authorise the mortgagee to retain such possession in payment of the mortgage money, for the lease is limited only to ten years. According to the document, the mortgagees may terminate the lease even before ten years, for, the mortgagee bank is not in the position of the usufructuary mortgagee. In the circumstances, therefore, we are satisfied that the document in question cannot be termed as a mortgage with possession of immovable property, which is one of the instruments on which duty can he levied under section 135 of the City Municipal Corporation Act. 4. In the circumstances, therefore, we are satisfied that the document in question cannot be termed as a mortgage with possession of immovable property, which is one of the instruments on which duty can he levied under section 135 of the City Municipal Corporation Act. 4. Under Article 40 (a) of Schedule 1 to the Indian Stamp Act, when possession of the property or any part of the property comprised in such deed is given by the mortgagor or agreed to be given, the proper stamp duty will be the same duty as a conveyance for a market value equal to the amount secured by such deed. The mortgage document in this case is very clear that the mortgagors had agreed to give possession under a lease deed and this agreement to give possession would satisfy the requirements of Article 40 (a) and as such the document is liable to stamp duty under that Article. The matter is put beyond doubt by the Expla- nation, for, it provides that when a mortgagor gives or has given to the mortgagee a power of attorney to collect rents or gives or has given to the mortgagee a lease of the property mortgaged or part thereof he is deemed to give possession thereof within the meaning of this Article. Reference by the Board of Revenue to Article 40(b) in its order is obviously a mistake. The proper Article, as conceded by the learned Additional Government Pleader, is Article 40 (a). Hence, the document in this case is liable to duty under Article 40 (a) of Schedule I. 5. The next question that arises for consideration is whether surcharge under section 135 of the City Municipal Corporation Act can be imposed on this document. While we have found that the document is one which will fall under Article 40 (a) of Schedule I to the Indian Stamp Act, it will have to be considered whether it will fall under section 135 (3) (iv) of the City Municipal Corporation Act, that is, whether it is a mortgage with possession of immovable property, as referred to. It has to be seen whether the requirements of section 58 (d) of the Transfer of Property Act have been satisfied. It has to be seen whether the requirements of section 58 (d) of the Transfer of Property Act have been satisfied. By the mortgage deed, possession of immovable property was not given to the mortgagee by the mortgagors, but it was only by an undertaking in the mortgage deed, possession was given to the mortgagee by a subsequent lease deed In our view, therefore, while this document would satisfy the requirement of Article 40 (a) of Schedule 1 to the Indian Stamp Act, it would not come under the provisions of section 58 (d) of the Transfer of Property Act or under section 135 (a) of the City Municipal Corporation Act. The duty in the form of surcharge is leviable under section 135 (a) on every instrument of the description specified in the four sub-clauses of sub-section (b) of the section. As the document does not fall within the fourth clause, namely, mortgage with possession of immovable property, the instrument in question is not liable to duty on the rate that is provided for in section 135 (b). But, the contention on behalf of the Revenue is that surcharge is leviable on the stamp duty imposed as such, whether the instrument is of the description specified in section 135 (6) clauses (i) to (iv) or not and that if a stamp duty is leviable, surcharge is automatically leviable under section 135 of the City Municipal Corporation Act. Equally, it was contended that if a stamp duty cannot be levied on the instrument, no surcharge can be levied. In support of this contention, a decision of the Full Bench of this Court reported in State (Chief Controlling Revenue Authority, Board of Revenue) v. Simpson and Co. 1was cited. In that case, the instrument in question was not liable to duty under the Stamp Act. In the circumstances, it was held that surcharge under section 135 of the Madras City Municipal Corporation Act could not be levied. The document in question in that case was an instrument by which Messrs. Simpson and Co., and General Finance Co., Ltd. transferred certain properties in favour of Messrs. Simpson and Co. which is a subsidiary company of the transferor company. This instrument was exempted by the Government in the notification, dated 17th December, 1938. It was agreed that the instrument was not liable to stamp duty under the Stamp Act. Simpson and Co., and General Finance Co., Ltd. transferred certain properties in favour of Messrs. Simpson and Co. which is a subsidiary company of the transferor company. This instrument was exempted by the Government in the notification, dated 17th December, 1938. It was agreed that the instrument was not liable to stamp duty under the Stamp Act. Then the question arose whether surcharge could be levied under section 135 of the City Municipal Corporation Act. After discussing sections 98 and 135 of the said Act, the Court expressed its opinion that the words ‘a duty on certain transfers of property in the shape of an additional stamp duty ‘rendered it clear beyond doubt that the tax was an additional tax or burden upon a preexisting tax under the Stamp Act, and could be appropriately levied only where the instrument was liable to duty under the Stamp Act and not otherwise. The Court then observed- “These words, considered together, clearly imply that where there is an instrument, which is not at all liable to stamp duty under the Indian Stamp Act, 1899, as in force for the time being, no surcharge could be levied, because in law, this duty under section 98 has to be ‘in the form of a surcharge on the duty imposed by the Indian Stamp Act’. Undoubtedly under section 135(b), the rates make it clear that this surcharge is not to be a proportion of the stamp duty itself ,but will be a rate on the amount of the consideration or the value, of the concerned property not exceeding five per cent.” Having found that the rates depended on the amount of consideration or value of the concerned property the Court rejected the contention put forward by the Government Pleader and held that the instrument should be liable to duty under the Stamp Act, before the power under section 98 could be invoked to lay an additional burden or before any surcharge itself could be formulated and enforced. The Full Bench also relied on the Madras Local Revenue (Surcharge) Act, XIX of 1954, and found that the word ‘surcharge’ is en ployed in the very same sense, and under that provision surcharge was to be a proportion of the charge or land revenue at a specified rate. The Full Bench also relied on the Madras Local Revenue (Surcharge) Act, XIX of 1954, and found that the word ‘surcharge’ is en ployed in the very same sense, and under that provision surcharge was to be a proportion of the charge or land revenue at a specified rate. We find ourselves unable to agree with the reasoning of the Full Bench, for, section 98 of the City Municipal Corporation Act enables the Council to levy a duty on certain transfers of property in the shape of additional stamp duty. The Full Bench quotes section 98 as saying “ in the form of a surcharge on the duty imposed by the Indian Stamp Act.” We do not find the words ‘in the form of ‘in section 98, but the words used are “ a duty on certain transfers of property in the shape of an additional stamp duty.” All that is required is that the duty imposed is to be in the shape of an additional stamp duty. The words ‘in the form of are not found in section 98, but are found only in section 135 (a). We have already referred to section 135 of the City Municipal Corporation Act, and though it is stated to be a surcharge on the duty imposed by the Indian Stamp Act under section 135 (a), the basis for the levy of this surcharge is on certain documents listed in the section at the rates specified in section 135 (b). We are, therefore, of the view that the levy of surcharge is independent of the levy imposed under the Indian Stamp Act and could be sustained under section 135 (6) (iv) if the requirements of that section are satisfied, namely, if they are instruments specified in the section. Normally if it becomes necessary we should have referred the matter to a Fuller Beach, but a recent decision of the Supreme Court reported in Madurai District Central Co-operative Bank Ltd. v. Income-tax Officer 1 , puts the matter beyond controversy. In the case before the Supreme Court, the Finance Act of 1963, came to be considered and that Act provided for a levy of additional surcharge under clause (a) of paragraph A of Part I of the First Schedule. In the case before the Supreme Court, the Finance Act of 1963, came to be considered and that Act provided for a levy of additional surcharge under clause (a) of paragraph A of Part I of the First Schedule. The Co-operative Society, which was the assessee in that case, was not liable to pay income-tax or super-tax on its business income under the Income-tax Act. The main contention that was put forward before the Supreme Court was that as income-tax or super-tax was not leviable on the co-operative society, additional surcharge could not be levied. Section 81 of the Income-tax Act provided that income-tax shall not be payable by a co-operative society in respect of profits and gains of business carried on by it. Part I, paragraph A under the heading ‘Surcharge on Income-tax’ provided - The amount of income-tax computed at the rates herein before specified shall be increased by the aggregate of the surcharge calculated as under Clause (e), with which the Supreme Court was concerned, provided for the levy of ‘an additional surcharge for the purposes of the Union calculated on the amount of the residual income’ at the rates mentioned therein. The question for consideration before the Supreme Court was whether clause (c) of the portion ‘surcharge on income-tax’ occurring in paragraph A of Part I introduced a new charge in the shape of additional surcharge so that the said charge could be levied even on a part of the assessee’s income which was exempt from income-tax and super-tax under sections 81 (i) (a) and 99 (1) (v) of the Act of 1961. Rejecting the contention that the heading Surcharge of Income-tax " under which provision was made in the Finance Act for the calculation of a surcharge, a special surcharge and an additional surcharge showed that the levy of additional surcharge on the residual income could not be dissociated from the main charge of income-tax, the Court held that the additional surcharge is a distinct charge not dependent for its leviability on the assessee’s liability to pay income-tax or super-tax. The Supreme Court further observed that the section used the words ‘income-tax ...... shall further be increased by an additional surcharge. The Supreme Court further observed that the section used the words ‘income-tax ...... shall further be increased by an additional surcharge. ‘These words are much stronger than the words ‘in the shape of an additional stamp duty’ found in section 98 of the City Municipal Corporation Act and the words ‘in the form of a surcharge on the duty imposed by the Indian Stamp Act ‘found in section 135 (a) of the City Municipal Corporation Act. The Court concluded by observing thus: " The interpretation put by us on the Finance Act, 1963, does no violence to section 4 of the Income-tax Act, 1961, under which income-tax at the rates prescribed by the Finance Act is to be charged ‘in accordance with and subject to the provisions of the Income-tax Act. The Income-tax Act exempts the assessees business income from income-tax and super-tax. The Finance Act brings to tax its residual income." The Court finally held that the additiona surcharge, though levied by the Finance Act, 1963, Independently of the Income-tax Act, is but a mode of levying tax on a portion of the assessee’s income computed in accordance with the definition in section 2 (8) of the Act of 1963. 6. The decision of the Supreme Court is clear authority for coming to the conclusion that it is not necessary that a levy under the Stamp Act should be levied before the surcharge is levied. We have already pointed out that the words in sections 98 and 135 of the City Municipal Corporation Act are very clear that the surcharge is leviable on the instrument specified and not based on the levy under the Stamp Act. In view of the recent pronouncement of the Supreme Court in Madurai District Central Co-operative Bank Ltd. v. Income-tax Officer 2the Full Bench decision of this Court reported in State v. Simpson & Go 1 . is no longer good law. 7. In the result, we hold that the document is not liable to surcharge under section 135 of the City Municipal Corporation Act of 1919.