JUDGMENT : ( 1. ) THIS order shall also dispose of Misc. Petition Nos. 1418/81, 2076/83, 2077/83, 2078/83 and 2949/84. ( 2. ) THE short question for decision relates to the mode of computation of stamp duty on the instruments of mining lease in Form K prescribed in accordance with Rule 31 of the Mineral Concession Rules, 1960. Article 35 in Schedule 1-A of the Indian stamp Act, 1899, as amended in its application to the State of Madhya Pradesh, prescribes the stamp duty payable on a lease and clause (a) therein provides for the lease deeds "whereby such leasee the rent is. fixed and no premium is paid or delivered," section 26 of the Stamp Act applies where value of the subject-matter is inderminate. The question really is whether section 26 applies and has to be read along with Article 35 in these cases relating to payment of stamp duty on instruments renewing mining leases or not. The petitioners contention is that section 26 has no application whereas the respondents contend that it applies. Applicability of section 26 is, therefore, the real controversy between the parties. ( 3. ) ALL these cases relate to renewal of mining leases and the question is of the stamp duty payable on the instruments renewing the mining leases. For the purpose of computation of stamp duty on these instruments, the respondents have demanded duty on the amount of royalty paid during the last three years under the mining lease which is to be renewed in accordance with section 26 of the Stamp Act. The petitioners contend that section 26 has no application and by virtue of Article 35 alone stamp duty is payable only on the amount of annual dead rent fixed by the lease and the royalty required to be paid thereunder cannot be taken into account for the purpose of payment of stamp duty. The petitioners contention is that the annual dead rent fixed under the lease deed indicates that "rent is fixed" by the lease and therefore clause (a) of article 35 alone applies, whereas section 26 applies only to a case where the value of subject-matter is indeterminate. The question is whether this contention is correct. ( 4. ) SECTION 26 and the relevant part of Article 35 in Schedule-1 of the Stamp Act are as under :-"s. 26. Stamp where value of subject-matter is indeterminate. The question is whether this contention is correct. ( 4. ) SECTION 26 and the relevant part of Article 35 in Schedule-1 of the Stamp Act are as under :-"s. 26. Stamp where value of subject-matter is indeterminate. Where the amount or value of the subject-matter of any instrument chargeable with ad valorem duty cannot be, or (in the case of an instrumenl executed before the commencement of this Act) could not have been ascertained at the date of its execution, or first execution, nothing shall be claimable under such instrument more than the highest amount or value for which, if slated in an instrument of the same description, the stamp actually used would, at (he date of such execution, have been sufficient: provided that, in the case of the lease of a mine in which royally or a share of the produce is received as the rent or part of the rent, it shall be sufficient to have estimated such royalty or the value of such share, for the purpose of stamp-duty,- (a) when the lease has been granted by/or on behalf of the (Government at such amount or value as the Collector may, having regard to all the circumstances of the case, have estimated as likely to be payable by way of royalty or share to the Government under the lease, or, (b) when the lease has been granted by any other person, at twenty thousand rupees a year; and the whole amount of such royalty or share, whatever i ( may be, shall be claimable under such lease: provided also that, where proceedings have been taken in respect of an instrument under section 31 or 41, the amount certified by the Collector shall be deemed to be the stamp actually used at the date of execution. Art. 35. Lease, including an under-lease or sub-lease and any agreement to let or sub-let ;- (a) where by such lease the rent is fixed and no premium is paid or delivered". The actual controversy between the parties is really to the applicability of (he proviso in section 26 relating to mining leases. Art. 35. Lease, including an under-lease or sub-lease and any agreement to let or sub-let ;- (a) where by such lease the rent is fixed and no premium is paid or delivered". The actual controversy between the parties is really to the applicability of (he proviso in section 26 relating to mining leases. Admittedly, royalty is payable under the mining lease and effect of the relevant statutory provisions read along with Part V of the instrument of lease in Form K is that the lessee is "liable to pay either such royalty or the dead rent in respect of that area, whichever is higher. " This obviously is the consideration for the lease or, in other words, "rent" due thereunder from (he fessee to the lessor. Dead rent is to be paid in respect of the area within the mining lease and royalty is paid on the quantity of mineral extracted and removed according to the prescribed rates. Where no excavation and removal of the mineral is done, dead rent alone is payable; but in case of excavation and removal of the mineral royally is to be paid. It is clear that the higher of the two amounts is to be paid as consideration or, in other words, "rent" under the lease. The meaning of "royalty" is well settled. "royalty" in the present context means the payment made "to the owner of minerals for the right of working the same on every ton or other weight raised. " Royalty is a payment to the lessor proportionate to the amount of the mineral worked; it is paid in addition to dead rent and surface rent and is a normal feature of mining leases. This is the meaning of "royalty" stated in Surajdin Laxman v. State of M. P. ( 1960 MPLJ 39 ) and B. B. Saha v. State Govt. of M. P. , Bhopal (1969 M. P. L. J. 128) on the basis of references mentioned therein. ( 5. ) IT would be useful to refer to the definition of "lease" in section 2 (16) of the stamp Act wherein an inclusive definition is given stating that it means a lease of immovable property. The expression "lease" used in the Stamp Act has, therefore, to be understood as defined in section 105 of the Transfer of Property Act in Chapter V relating to leases of immovable property. The expression "lease" used in the Stamp Act has, therefore, to be understood as defined in section 105 of the Transfer of Property Act in Chapter V relating to leases of immovable property. The definition of "lease" in section 105 of the transfer of Property Act shows that it is a transfer of a right to enjoy such property in consideration of a price paid and that the consideration given by the lessee to the lessor under the lease, called by whatever name, is the "rent". It is, therefore, obvious that the royalty payable under the mining lease by the lessee to the lessor is the "rent" or at least a part of the rent payable under the mining lease. The primary contention on behalf of the petitioners that royalty is not "rent" or a part thereof is clearly untenable. This view is fully supported by the decisions in Low cv- to. v. Jyoti Prasad : (A. I. R. 1931 PC 299) and Tarkeshwar Sio Thakur Jiu v. B. D. Dey and Co. (A. I. R. 1979 S. C. 1669 ). ( 6. ) SECTION 26 of the Stamp Act applies when the value of the subject-matter is indeterminate and ad valorem duty is chargeable on the instrument. The amount of royalty payable under a mining lease cannot, therefore, be ascertained at the date of its execution. Royalty is payable where it is higher than the dead rent according to the terms of the lease itself and, as already indicated, royalty being consideration for the lease, it is rent or at least a part of the rent payable under the lease. These characteristics of an instrument of mining lease being beyond controversy and royalty being the "rent" or part of the rent in the case of a mining lease, section 26 of the stamp Act including the proviso therein is clearly attracted and it cannot be said that the rent is fixed by such lease so as to apply Article 35 (a) alone and exclude the applicability of section 26. The proviso in section 26 is enacted specifically for mining leases under which royalty is to be paid and if the petitioners contention is accepted, it would not only be contrary to the settled meaning and concept of royalty payable under a mining lease but it would also render this part of section 26 as a legislative exercise in futility. The proviso in section 26 is enacted specifically for mining leases under which royalty is to be paid and if the petitioners contention is accepted, it would not only be contrary to the settled meaning and concept of royalty payable under a mining lease but it would also render this part of section 26 as a legislative exercise in futility. Clause (a) of the Proviso also provides for calculating the amount or value of the subject-matter on the basis of estimated royalty likely to be payable under the lease. The mode of determining the value of subject-matter in such cases where the same cannot be ascertained with precision at the date of the execution of the instrument has also been provided in section 26. It cannot, therefore, be doubted that section 26 of the Stamp Act clearly applies. ( 7. ) AS a result of the aforesaid discussion, the petitioners, contention must be rejected. Consequently, all these petitions are dismissed with costs. Counsels fee Rs. 200/- in each case, if certified. The balance, if any, of the security deposit be refunded to the petitioners. Petition dismissed.