Omprakash Kushwah and Others vs Shanti Devi and Others

S.K. Gangele, J.—The petitioners have filed this petition against the order dated 30-11-2012 (Annexure P-1) passed by the trial Court. The plaintiffs produced a document Ex. P-10, a decree of Civil Court effecting partition between the parties. The petitioners-defendants raised objection about admissibility of the document on the ground that it was not properly stamped. The objection of the petitioners has been culled down by the trial Court vide impugned order. Admittedly, the document Ex. P-10 is a decree passed by the Civil Judge, Class-I, Gwalior.

Section 2(15) of the Indian Stamp Act, 1899 [hereinafter referred to as "the Act"] defines "instrument of partition". It is as under:-

2(15) "Instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severalty and includes also a final order for effecting a partition passed by any revenue-authority or any Civil Court and an award by an arbitrator directing a partition.

From the aforesaid Section, it is clear that the final order effecting a partition passed by Civil Court, is an instrument of partition.

Clause 45 of Schedule I prescribes stamp duty on the instrument. It is in regard to "partition instrument" as defined in Section 2(15) of the Act. It is mentioned that the same duty as a Bond for the amount of the value of the separated share or shares of the property, has to be paid. Clause 45(c) of Schedule I is as under:-

(c) where a final order for effecting a partition passed by any Revenue authority or any Civil Court, or an award by an arbitrator directing a partition, is stamped with the stamp required for an instrument of partition and an instrument of partition in pursuance of such order or award it subsequently executed, the duty on such instrument shall not exceed eight annas.

Looking to the aforesaid provision, the stamp duty is to be payable on the document Ex. P-10 in accordance with the aforesaid Clause.

In this view of the matter, the writ petition is disposed of with a direction that the trial Court shall fix the amount of duty payable by the plaintiffs on the instrument and the plaintiffs shall pay the same. If the plaintiffs fail to pay the duty, then the document could not be admissible.

Petition is disposed of accordingly. No order as to costs.