Judgment :- 1. A question of stamp duty arises for consideration in these Civil Revisions by the plaintiff, foreman of a kuri (chit funds). The bid amounts were paid to the subscribers of the kuri on their executing agreements undertaking to pay the future instalments. Over and above the subscriber, two sureties also joined in the agreements which were not attested by any witness. The plaintiff filed suits against those who committed default in the payment of future instalments. Along with the plaint, the agreements taken from the subscribers were also produced in Court. The trial court took the view that the agreements are bonds as defined in S.2 (a) of the Kerala Stamp Act, 1959, for short the Act, and should be stamped with ad valorem stamp applicable to 'bond' under Art.13 of the Schedule to the Act. Only a fixed stamp duty as per Art.5 (b) of the Schedule was paid. In two cases, the trial court directed the petitioner to pay deficit stamp duty and penalty. In two other cases the trial court impounded the instruments under S.33. The challenge in these Civil Revisions is against the above four orders of the trial court. The question is whether the agreements in question are instruments which attract a fixed stamp duty of rupees three under Art.5 (c) of the Schedule to the Act or they are really bonds as defined in S.2 (a) of the Act attracting ad valorem duty under Art.13 of the Schedule. 2. S.2 (a) of the Act which defines bond reads: "(a) 'bond' includes (i) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed as the case may be; (ii) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and (iii) any instrument so attested; whereby a person obliges himself to deliver grain or other agricultural produce to another." Article 5 of the Schedule to the Act reads: "5. Agreement or memorandum of an agreement Table:1 Art.13 of the Schedule reads: Table:2 Exemptions (a) (b) " (omitted as not necessary) Websters' Third New International Dictionary gives the following meaning for ' the word agreement: "the written instrument that is the evidence of an agreement," Osborn's Concise Law Dictionary says: "The requisites of an agreement are: two or more persons, a distinct intention common to both, known to both, referring to legal relations and affecting the parties." Stroud's Judicial Dictionary has quoted the following words from Re Symon, Public Trustee v. Symon (1944) S.A.S.R.102): "'Agreement' signifies primarily a contract, that is, a legally binding arrangement between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others'. 3. At the outset it is to be noted that under the Stamp Act, duty is imposed upon the instruments and not upon transactions. If a transaction can be legally entered into by different kinds of instruments chargeable to stamp duty at different rates under the Act the parties to the transaction will have the option to choose the instrument they want to draw up. Agreements can be oral or written. We are concerned here only with written agreements which will only be instruments. Stamp duty can also be levied only on instruments. S.2(a) of the Act which defines bond includes three kinds of instruments. But we are concerned with only S.2(a)(ii) which is in pari materia with S.2(5)(b) of the Indian Stamp Act, 1899. It is clear from the Dictionary meanings of the word 'agreement' extracted above that a bond defined in S.2(a)(ii) of the Act is also an agreement to pay money. A legally binding arrangement between two or more persons creating rights and liabilities is the essence of both. A bond can be a written agreement but all written agreements will not be bonds. This is because of a positive test that an agreement reduced to writing should satisfy, namely, that it should be attested by a witness, to make it a bond. The same rights and liabilities can be created by an agreement and a bond under S.2(a)(ii) of the Act. But, as long as an agreement is not attested by a witness, it will not become a bond. The same rights and liabilities can be created by an agreement and a bond under S.2(a)(ii) of the Act. But, as long as an agreement is not attested by a witness, it will not become a bond. In this case, the petitioner-foreman was at liberty to take bonds in the place of agreements he had taken. But he has chosen to take only agreements. He has also taken the care not to get them attested by a witness. So, the instruments in question are only agreements attracting the three rupees stamp duty under Art.S(c) of the Schedule to the Act and they are not bonds liable to advalorem duty under Art.13 of the Schedule. They are hence properly stamped. The trial court has erred in the exercise of its jurisdiction in impounding the instruments and in directing the petitioner to pay deficit stamp duty and penalty. 4. In coming to the above conclusions I find support from the following decisions relied on by Shri T. C. George, the learned counsel for the petitioner. In The Commissioner of Inland Revenue v. Angus (XXII) L .R. (Q.B.D.) 579) the Court of Appeal said: "Suppose a man to have an estate which is mortgaged, and to sell that estate subject to the mortgage, is there no difference in conveyancing language between the agreement for the purchase and the ultimate conveyance of the enquiry of redemption to the purchaser? Of course there is. It is true that by the contract itself the purchaser acquires a right to redeem the mortgage, and, if he chooses to redeem it, he will obtain the legal estate discharged from the mortgage. Moreover, in the interval he has all those "rights which a formal conveyance would give him, except the vendor's covenants for title, which are usually inserted in a conveyance but not in an agreement. But, notwithstanding this, can it be said that there is no difference between an agreement and a conveyance? Did anyone ever hear of an ad valorem stamp being placed upon an agreement to buy an enquiry of redemption, or of an ad valorem stamp being omitted from a conveyance of an equity of redemption? The two things are plainly distinguishable." In Bhaurao Antuji Bhoyar v. Keshaorao Rajaram Dangore (AIR. 1976 Bom. Did anyone ever hear of an ad valorem stamp being placed upon an agreement to buy an enquiry of redemption, or of an ad valorem stamp being omitted from a conveyance of an equity of redemption? The two things are plainly distinguishable." In Bhaurao Antuji Bhoyar v. Keshaorao Rajaram Dangore (AIR. 1976 Bom. 302) it is said: "To be a bond within the meaning of S.2 (c) (ii) the document primarily and dominantly must be one by which a person has obliged himself to pay money to another and by that instrument undertakes to pay in the presence of the witnesses only to the promisee and not to his order or bearer." In Bahadurrinisa Begum v. Vasudev Naick (AIR. 1967 A.P. 123) it is said: "It is Cl. (b) which is relevant. According to that clause any instrument attested by a witness and not payable to order or bearer whereby a person obliges himself to pay money to another, would be a bond. Both the the things therefore, are necessary to bring the document within Cl; (b) of S.2 (5) of the Indian Stamp Act. First the instrument must have been attested by a witness, and secondly, the amount must not be made payable to order or bearer. If any one of the said two things is absent from an instrument, then S.2 (5) of the Indian Stamp Act would not be attracted. Obviously, the conjunction 'and' makes that position abundantly clear. It is not 'or' but 'and', and when Cl. (b) itself is relevant, any document falling outside these clauses need not be considered merely on the ground that the definition of bond is inclusive Even in such cases on the principle or ejusdem generis these clauses will have to be kept in view." In Santsingh v. Madandas Panika (AIR. 1976 M. P. 144) it is said: "A bond has two distinguishing features: (i) Positive it must be attested by a witness. (ii) Negative it must not be payable to order or bearer." In Tulsa Singh v. The Board of Revenue (AIR. 1971 All. 430) it is said: "The two documents, in question, contained an undertaking to pay money, not to order or bearer. They are attested by witnesses. They are not mere agreements relating to the sale of goods. (ii) Negative it must not be payable to order or bearer." In Tulsa Singh v. The Board of Revenue (AIR. 1971 All. 430) it is said: "The two documents, in question, contained an undertaking to pay money, not to order or bearer. They are attested by witnesses. They are not mere agreements relating to the sale of goods. By the fact of attestation they have become bonds." In the above decision it is also said: "Under clause (c) an agreement is liable to duty if it is not otherwise provided for. In other words, if the document is covered by some other Article, clause (c) of Art.5 will not be attracted." In Har Narain Lal v. Udan Singh (AIR. 1940 Oudh 83) it is said: "The word "attestation' is not defined in the Stamp Act, but the word 'attested' as inserted in S.3, T.P. Act by the Amending Act (17 of 1926), in relation to an instrument, means attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. There can be no doubt that a scribe can become an attesting witness, but what is said to be an attestation in the present case is merely at a statement in writing by the scribe that the money was paid in his presence. The mere fact that a person says that the money was paid in his presence does not mean that he becomes an attesting witness, and this cannot per se amount to 'attestation'." 5. In the result, the orders impugned are set aside and the Civil Revision Petitions are allowed. There will be no order as to costs.