KERSAJI DHANJIBHAI Vs. BARJORJI BHIKHAJI VANDRIWALA

JUDGEMENT

(1.) THIS is an appeal from an order of the First Class Subordinate Judge of Surat transferring a certain decree for execution to the District Judge of Navsari in the Baroda State.

(2.) THE facts, so far as it is necessary to mention them, are these. One Dhanjibhai a Parsi died on November 12, 1901, leaving behind him property both moveable and immoveable. THE appellant was the son of his brother and had been taken in adoption by him. On September 4, 1911, one Beramji Mancherji son of Dhanjibhai's sister filed a suit for administration of his estate. An issue was raised in that suit as to the validity of the adoption of the appellant, who was defendant No.1 in the suit, and it was held that though the adoption had taken place, it was not legally valid. For various reasons with which we are not now concerned the suit was not disposed of until December 23, 1935. THEre were appeals from the decree to this Court which were decided on August 2, 1940. THE trial Court's decree was confirmed with variations not of material importance.

(3.) THE principal point argued before us, as in the Court below, is that the decree cannot be transmitted to Baroda for execution because it is not capable of execution, and it is said to be not capable of execution because it is not engrossed on a stamp paper. Whether it requires to be so engrossed depends on whether it is a final order for effecting partition within the meaning of Section 2(15) of the Indian Stamp Act, which says : 'Instrument of partition' means any instrument whereby co-owners of any property divide or agree to divide such property in severally, 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.