MARY SIMON Vs. TRESSA XAVIER

JUDGEMENT

(1.) The second defendant in O.S. No. 112 of 1984 on the file of the Sub Court, Ernakulam is the revision petitioner. The revision is directed against the order of the Trial Court in I.A. 4747 of 1996 in the aforesaid suit recording that deficit amount for engrossing final decree has been deposited by the plaintiff and directing engrossment of the decree on the stamp paper to be purchased from the amount deposited and allowing the respondent - plaintiff to realize the amount from the revision petitioner.

(2.) The brief facts necessary for disposal of the case are as follows: -

(3.) The question to be considered is whether under Art.42 of the Kerala Stamp Act (for short 'the Act') a party need pay the amount for the value of the separated share, excluding 'largest' share or not. In this case, admittedly one - third is the separated share and the larger share is two - third. Therefore, for engrossing final decree, stamp paper for the value of one - third share alone is necessary. The plaintiff has already deposited the amount necessary for purchase of stamp paper for two - third share which amounts to Rs. 98,222/-. Going by the provisions of Art.42 of the Act where the partition is among all or some of the family members, the duty payable is the same as a Bottomry Bond (No. 14) for the amount of the value of the separated share or shares of the property. The note to the said Article provides for the largest share remaining after the property is partitioned shall be deemed to be that from which the other shares are separated. On a plain reading of Art.42 of the Act, it becomes clear that duty payable on the instrument of partition is for the amount of the value of the separated share or shares of the property. Smaller shares which have been separated off from the larger share should be the criterion for fixing the stamp duty payable on the instrument. See in this connection the decision reported in Venkatappa v. Musal ( AIR 1934 Mad. 204 - D.B.). In like vein is the decision of the Division Bench of the Andhra Pradesh High Court reported in Pothula v. Pothula (AIR 1976 AP 45) wherein it has been held as follows: