GOVINDBHAI JIVABHAI PATEL Vs. CHIEF CONTROLLING REVENUE AUTHORITY

JUDGEMENT

(1.) This is a reference made under sec. 54 (1) of the Bombay Stamp Act 1958 (Bombay Act No. LX of 1958) by the Chief Controlling Revenue Authority Gujarat State Ahmedabad who dismissed an appeal against the order passed by the Collector and Assistant Superintendent of Stamps Gujarat State Ahmedabad imposing a duty of Rs. 5 100 together with a penalty of Rs. 20.00 on a memorandum of partition which came to the notice of the Collector and Assistant Superintendent of Stamps.

(2.) One Govindbhai Jivabhai Patel a `Karta of a joint family consisting of himself his wife and three sons orally partitioned the joint family properties and the five members of the family took separate items of properties. Thereafter five memoranda of partition were prepared each one of the memoranda of partition scheduling the properties which fell to the individual share of one of the five members of the family. This was on 15/01/1973. It appears that either one or all of them were produced before the Talati-cum-Mantri of the village Navrangpura so as to enable necessary entries to be made relating to the individual ownership of these items in the revenue records of the village. Thereupon action was taken to impose necessary duty and penalty treating the memorandum of partition as an Instrument of partition as defined in sec. 2 (m) of the Bombay Stamp Act 1958 (Bombay Act No. LX of 1958). The Schedule has undergone amendments in 1977 and in 1982 and we are concerned here with the Schedule as it stood at the time of execution of the memorandum. It is agreed that it is Article 46 in Schedule I that would apply to an Instrument of partition as defined in sec. 2 (m). That definition reads:

(3.) It is admitted that the partition had taken effect long before the execution of the memoranda of partition. It had so taken effect on 1/04/1972 and the individual shares had come into possession of the respective shares. Nevertheless the parties thought it fit to prepare five documents more or less in the same terms excepting for the fact the Schedule in each of the five was different indicating the items allotted to each one of the five members. Evidently the instrument will not fall within the main part of the definition as it is not an instrument by co-owners of the property to divide or agree to divide the property in severalty. That had been done earlier. But the definition was inclusive and besides the instruments which divide properties belonging to co-owners takes in three classes; the first of them being a final order for effecting a partition passed by any revenue authority or any Civil Court; and second an award directing the partition; and third any document which records the terms of such partition. It is not anybodys case that the inclusive clauses (i) and (ii) do apply. It is the case that clause (iii) of sec. 2 (m) applies to the facts here. In order that it should apply the partition should have been effected without executing any instrument and there should be an instrument or instruments signed by the co-owners the purport of which would be the recording of the terms of partition whether such recording be by way of declaration of partition or otherwise. While the main part of the definition would take in documents normally executed as deeds of partition of properties between co-owners or agreement to partition properties other cases where there may not be such partition deeds are sought to be covered by the inclusive clauses (i) to (iii).