CHIEF CONTROLLING REVENUE AUTHORITY Vs. RASIKCHANDRA TULSIDAS PATEL

JUDGEMENT

(1.) THIS is a reference under Section 57 of the Indian Stamp Act, and the document that we have to consider is a document which purports to acknowledge a certain partition which was effected earlier. The transaction evidenced by the document is this. There was a joint family consisting of Rasikchandra Tulsidas Patel, his widow mother Narmadabai, his wife Savitaben, his minor son Chandrakant, minor unmarried daughters Indira and Anila, and two major sons Harilal and Shashikant, and from the document it appears that there was an oral partition on March 29, 1956, and the partition took this form. A sum of a lakh of rupees each was given to the two major sons Harilal and Shashikant, and the mode of transferring this sum of Rs. 1 lakh to the two major sons was that the father had an amount standing to his credit in the firm of Shah Construction Co. Ltd. and the necessary entries were made crediting the two sons with Rs. 1 lakh each. The rest of the joint family property consisting of land, pots and pans, etc. went to the smaller joint family as it is described which was left after excluding the two major sons.

(2.) NOW , the two rival views which are before us are the view of the Revenue Authority who suggests that although in form the document is merely an admission and an acknowledgment of a partition which had already been effected, in substance this is an instrument of partition, and it should be stamped under Section 2(15) of the Stamp Act. The other view is that this document merely recites a statement of fact, and it has not by itself created any interest and, therefore, it is not liable to be stamped under the Stamp Act at all. Section 2(15) is in the following terms: 'instrument of partition' means any instrument whereby co -owners of any property divide or agree to divide such property in severalty, 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. Before we look at the document itself and before we look at the authorities which were cited at the Bar, perhaps it is just as well to look at the principle underlying this section. When you have a joint Hindu family, you may have a partition effected, which partition may only result in a division of interest. Members of the joint family may not specifically divide the joint family property. The result of this would be that the members of the joint family would cease to be coparceners and would become tenants -in -common and would hold the property as tenants -in -common. At a subsequent stage by a document the tenants -in -common may specifically divide the property. In such a case, although in one sense the partition has already taken place, still the fact that the tenants -in -common are specifically dividing the property would attract the application of Section 2(15). You may have another case where a partition may take place not only in interest but also a specific partition of property. The coparceners may by this partition divide the property which belongs to the joint family and. then you may have a subsequent document which may recite the fact not only of partition in interest but the actual partition specifically of the property of the joint family. In such a case it is difficult to understand how the document which merely admits and acknowledges a past event, which recites a partition which has already taken place, and which does not in any sense of the term bring about a partition, can be considered to be an instrument of partition under Section 2(15). The third case may be where the document itself may bring about both a division in interest and a partition with regard to specific property. That would be a clear case of an instrument of partition partitioning the joint family property. If these principles are understood and appreciated, then there is not much difficulty in deciding in which category the document we are considering falls.

(3.) TURNING to the authorities, we might first look at a decision of our own Court which is reported in Sakharam Krishnaji v. Madan Krishnaji ILR (1881) Bom. 232. It is an old decision which was not dealing with a case under the Stamp Act, and what Mr. Justice West was concerned to decide was whether a certain document was admissible in evidence, the contention being that as it required registration and it not being registered it was not admissible in evidence. In his judgment Mr. Justice West was considering the expression 'declare' as used in Section 17 of the Registration Act, and what the learned Judge says is that 'declare' as used in Section 17 must create, assign etc. and must be understood in the language used in the same section as implying a definite change of legal relation to the property by an expression of will embodied in the document referred to, and that it should imply a declaration of will, not a mere statement of a fact. Therefore, the document itself must constitute an act or a declaration of will on the part of the executant; it must not be a mere statement of fact.