Mosst. Mango Devi and Others vs Muneshwar Prasad and Others

Birendra Prasad Sinha, J.—The question is whether a simple memorandum of partition is chargeable with the stamp duty and should therefore be impounded in accordance with Section 33 of the Indian Stamp Act. 1899.

The plaintiff-petitioners filed the memorandum of partition dt. 8-11-1936 before the court below in the present suit. The same has been impounded and sent to the Collector for action u/s 40 of the Indian Stamp Act, 1899 (hereinafter referred to as the Act).

This memorandum of partition according to the evidence of P. W. 9. Ved Narain who was one of the witnesses was prepared four days after the partition between the parties. It is contended that this memorandum contained only a list of properties allotted to each of the parties and is not an instrument of partition. It is further stated by the learned counsel for the petitioners that the document was filed in the suit not for proving partition but for comparing the signature of one Sheo Narain Mahto on this memorandum of partition with his signature on a Iadavi deed.

An instrument of partition as defined in Section 2(15) of the Act means any instrument whereby co-owners of any property divide or agree to divide such property in severally and includes also a final order for effecting a partition passed by Revenue authority or any Civil Court and an award by an arbitrator directing a partition. Such an instrument of partition is only chargeable to stamp duty u/s 33 of the Act. Article 45 of the Stamp Act also mentions that an instrument of partition as defined u/s 2(15) of the Act is chargeable to stamp duty. But where the document is not of the nature of an instrument of partition by which partition is sought to be effected the same cannot be chargeable to stamp duty. In the instant case, upon the evidence on record it appears that the mamorandum of partion (Dajbandi) only records the properties which were allotted to each of the parties after the partition had already been made. I am supported in my view by a Bench decision of the Calcutta High Court in the case of Bhudeb Chatterjee and Others Vs. Asutosh Gangopadhya and Others, . In that case it was held that when a document was neither a deed of partition nor a deed of gift, but was merely a memorandum in which one of the sharers purported to acknowledge the fact that he was taking away his share of the property while the remaining shares belonged to others and the arrangement recorded therein was also given effect to for a period over 60 years, such document was only a record of the family arrangement and did not require to be either stamped or registered.

For the reasons stated above, I hold that the memorandum of partition recording the shares of each party is not an instrument of partition and does not require to he stamped. The impugned order passed by the court below impounding the memorandum of partition (Dajbandi) is accordingly set aside and this revision application is allowed. There shall however be no order as to costs.