RAJINDER KUMAR Vs. IQBAL SINGH

JUDGEMENT

(1.) A Suit for declaration, partition, rendition of accounts and injunction was filed by Sh. Rajinder Kumar, plaintiff against his six brothers, a sister and mother (since deceased) which was disposed of in terms of a compromise between the parties by an order dated 18th of August, 2000, operative part of which reads as under :

(2.) It is pleaded that late Sh. Ganga Bishan, the father of the plaintiff and defendants No. 1 to 7 and husband of defendant No. 8 (since deceased) had executed a registered Will dated 25th February, 1989 bequeathing his immovable and movable properties to the plaintiff and the defendants specifying their respective shares therein. The defendants No. 1, 2,4,6,7 and 8 clearly made mention of the said Will in their common written statement. The same was, of course, disputed by the plaintiff and defendant No. 3 and 5. During the pendency of the suit, it is stated, the parties arrived at an oral family settlement on 1.4.2000, determining and specifying the shares of the respective parties in the properties, movable and immovable, left by their father late Sh. Ganga Bishan. A document evidencing such family settlement ws executed in writing on 4th April, 2000 which was later followed by execution of a registered Disclaimer Agreement dated 16th May, 2000. Shares in the immovable properties of late Sh. Ganga Bishan, forming subject-matter of the suit, were allotted to respective parties to the suit in terms of the Will dated 25th of February, 1989. The parties to the suit accordingly retained possession of properties which fell to their respective shares. An application under Order 23 Rule 3, CPC was filed before this Court in pursuance of compromise so arrived at between the parties attaching therewith all the relevant papers including registered Disclaimer Agreement dated 16th of May, 2000 and family settlement dated 4th of April, 2000 with annexures thereto. In view of aforesaid, the learned counsel for the applicant contended that since the compromise/settlement in question did not create or declare on its own force any interest in the properties but only accepted the dictates of the Will left by their father, the decree passed in terms of such a compromise is not required to be engrossed on a non-judicial stamp paper and no stamp duty is chargeable thereon as the same did not amount to an 'instrument of partition' as contemplated under Section 2(15) of the Indian Stamp Act {for short 'the Act'}. Reference was made to a decision of this Court in "Sheikh Mukarramuddin v. Sheikh Rahimuddin & Ors.", AIR 1989 Delhi 268 : 1990(18) DRJ 11 to support the aforesaid argument. It was further contended that a decree passed on the basis of a compromise relating to partition of immovable properties which formed subject-matter of the suit does not require registration. A decision of this Court in "P.K. Nangia v. Land & Development Officer, New Delhi & Anr.", AIR 1988 Delhi 260 {DB} : 1988 (14) DRJ 112 and a decision of Supreme Court in "Bachan Singh v. Kartar Singh & Ors", JT 2001 {10} SC 64 were relied upon in this context. It was accordingly sought to be maintained that no stamp duty is chargeable in the present case for drawing up the decree. Alternatively, it was argued that the oral family settlement took place on 1st April, 2000 which was reduced into writing on 4th of April, 2000 simply as memorandum of such oral family settlement and as the settlement dated 4th of April, 2000 in substance records what had already been decided by the parties the same did not compulsorily require registration as the family settlement is based on an assumption that there is an antecedent title of some sort between the parties and the settlement/agreement simply acknowledges and defines what that title is. The learned counsel for the applicant-defendant No. 1 went on to add that the parties relinquished all claims to the properties other than those falling to their respective shares and recognized the right of the other allottees, as they had previously asserted it, to the portions allotted to them respectively and that explains why no conveyance was required in these cases to pass the title from the one in whom it resided to the persons receiving it under the family settlement. To enforce the argument in this regard a decision of the Supreme Court in "Tek Bahadur Bhujil v. Debi Singh Bhujil & Ors.", AIR 1966 SC 292 was referred to.

(3.) Stamp duty chargeable on an 'instrument of partition', as defined under Section 2 {15} of the Act, in terms of Item 45 of the Schedule I to the Act is the same duty as in respect of a Bond {No. 15} for the amount of the value of the separated share or shares of the property. An 'instrument of partition' is defined under Section 2(15} of the Act and it reads thus :