VISHUN SHANKAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is a reference under Section 57 Sub-section (1) of the Indian Stamp Act. The deed in question purports to be a deed of partition. The question which has been referred is whether it is a deed of gift as well and whether in consequence additional stamp duty under Article 33 of Schedule 1 to the Indian Stamp Act is payable.

(2.) The property covered by the deed formerly belonged to one Durga Prasad who died about 43 years ago leaving him surviving a widow Janak Dulari and a daughter Bachan Dcvi. The deed is a deed of partition executed by the five sons of Bachan Devi. The reason for making the reference is that Janak Dulari and Bachan Devi are attesting witnesses to the deed which contains the following passage among the recitations:

(3.) It appears to us clear that this reference must be answered, in the negative. The deed as it stands is a pure and simple partition deed. In the passage on which reliance has been placed on behalf of the State there is merely a statement in the past tense that the ladies "surrendered" their interest, that is to say, the deed does not purport to operate to terminate their interest. It may be that the intention is to bind these ladies and to prevent them in future from asserting an interest in the property. If the question should arise in future, it will be for the Courts to consider whether the document has that effect but the question is not relevant at this stage. The executant of this document have executed the deed as a deed of partition and want to get it registered as such. If by reason of any omission it appears later that their title in the property is incomplete, that is their concern and they run the risk with open eyes. We do not see any reason why the registration authorities should compel them to treat this deed as a deed of gift and to stamp it and register it accordingly.