M K MANJAPPA Vs. KALYANI PUJARTHY

JUDGEMENT

(1.) This appeal arises out of an order passed by the Civil Judge, Udipi on I.A. No. 1 in O.S. No. 2 of 1966. The plaintiffs had obtained a preliminary decree for partition and possession of their share in the suit schedule properties. They filed an application (I.A. No. I) for passing a final decree and determination of the income of the suit properties etc. as per the terms of the preliminary decree passed on 31-1-68. Pursuant to this application, a Commissioner was appointed by the Court below to divide the inimoveable properties by metes and bounds with reference to the respective shares of the parties. Accordingly, the Commissioner prepared 7 lists and submitted the lists along with his report to the Court. Some of the parties including the appellants, filed objections to the Commissioner's report and to the division of properties as contained in the said lists. The Court below without going into the merits of the case and without applying its mind to the question whether the properties had been divided in proportion to the shares of the parties with reference to their value, passed an order on 20-1-1969 as follows: "Lots are cast in open court in the presence of the counsel for the parties, by Sri Y. C. S. Hegde, Advocate and the lots allotted or indicated to each of the party are as per list shown against each below: <FRM>JUDGEMENT_367_MYSLJ1_1971Html1.htm</FRM> In pursuance of this order, a decree was drawn up, which reads as follows: -

(2.) At the hearing of the above appeal, Mr. Holla, the learned Counsel appearing for the plaintiffs, raised a preliminary objection and that objection is that no appeal lies in this case. It is urged by him that no appeal could lie against an order passed by the lower Court accepting the report of the Commissioner and allotting shares on the basis of that report by drawing lots, as had been done in this case. According to him the decree in question was not a decree in the first instance and even If we construe it to be a decree, as it had not been engrossed on non-judicial stamp paper, no decree in law exists and hence the appeal is not maintainable. In support of his contention, he relied upon number of decisions The first case is in Pandivi Satyanandam v. Paramakusam Nammayyd, AIR. 1938 Mad. 307. In that case the question was whether a final decree, which had not been engrossed on non-judicial stamp paper could be executed. Dealing with that question this is what the Court observed: "It is well settled that a final decree for partition has no existence as a decree until is engrossed on the proper non-judicial stamp paper; till that is done the suit is pending." The Court further observed that where a decree in a suit for partition is not engrossed on proper non-judicial stamp paper, there is no valid decree in existence. It therefore held that it could not be given effect to and everything done pursuant to the same was invalid. That was not a case in which the question was whether an appeal could be filed against a decree, which is not engrossed on non-judicial stamp paper.

(3.) The next case relied upon by Mr. Holla is the decision in Board of Revenue of Madras v. Moideen Rowther, (1955) 2 Mad .L.J. 635. That was a case which arose on a reference by the Board of Revenue under S.57 of the Stamp Act and the questions that were referred to were: "1. Whether the learned Subordinate Judge of South Malabar, on the failure of the parties in this case to furnish the requisite stamps, had the power to draw up the decree for partition ? 2. Whether the learned Subordinate Judge can impound the decree for partition drawn up by him under S.33 of the Stamp Act?" Dealing with these two questions, the Court held that the Subordinate Judge was precluded from drawing up a final decree for partition on unstamped paper and if it was so drawn up the Court was obviouslv doing a wrong thing and having committed that mistake the Court was wrong in saying that the document should be impounded. This decision is of no assistance as it is beside the point.