RAJA ISHWARI SINGH Vs. RAJA HARI SINGH

JUDGEMENT

(1.) THIS revision application, which is directed against an interim order dated 5.7.63 passed by the Senior Civil Judge, Jaipur, City No. 1, in a partition suit, raises the question about the admissibility of two documents evidencing a partition dated 19.2.1932 and 21.2.1932, respectively, on the ground that they were unstamped.

(2.) PLAINTIFF Raja Hari Singh and the defendant Raja Ishwari Singh were the sons of one Raja Bishan Singh. One Raja Udai Singh had died issueless and his widow Maji Panwarji adopted two persons Raja Kishan Singh and Raja Bishan Singh to her husband under some special orders of then Maharaja of Jaipur. We are not concerned with the validity of the adoption of two persons simultaneously as, it is common ground between the parties that it was in pursuance of the Ruler's order. The estate of Raja Udai Singh was partitioned between these two brothers under an arrangement sponsored by Maji Panwarji the widow of Raja Udai Singh. Raja Kishan Singh had no issue of his own, whereas Raja Bishan Singh had three sons, namely, Raja Ishwari Singh the defendant, Raja Hari Singh the plaintiff and Raja Dharam Singh. Raja Dharam Singh went in adoption to Raja Kishan Singh. The present partition suit relates to the estate of Raja Bishan Singh. In this suit the plaintiff Raja Hari Singh placed reliance on the two documents of partition between Raja Bishansingh and Raja Kishansingh executed in the year 1932. An objection was raised by the defendant to the admissibility of these two documents on the ground that they were not properly stamped in accordance with the Jaipur Stamp Act of Samvat 1983, which came into force from 1.3.1927. The learned Senior Civil Judge, placing reliance on Miran Baksh and others vs. Emperor (1), came to the conclusion that, as the value of the property to be partitioned was not mentioned in these deeds, no stamp duty could be levied on them with the result that they were not rendered inadmissible. Aggrieved of this order the defendant came up in revision to this Court and the revision was heard, in the first instance, by a learned Single Judge of this Court. As the learned Judge felt that the question raised in the revision was of some importance the case was referred to a larger Bench. This is how the matter is before us.

(3.) LEARNED counsel for the respondent submits that inasmuch as the so-called partition deeds do not contain the valuation about the property partitioned, the executants might have been liable to prosecution, but for want to valuation of the property in the instruments were not liable to stamp duty. This position is controverted by the learned counsel for the petitioner defendant. According to the charging section, namely, sec. 3 in the Indian Act and sec. 4 of the Jaipur Act, the duty is chargeable on instruments as distinguished from the transaction that they incorporate. The scheme of the Stamp Act accords with the scheme of taxation of instruments in England as will appear from the following passage from Lord Esher's judgment in Commissioners of Inland Revenue vs. Angus (2), on which reliance was placed by learned counsel for the respondent also. "The first thing to be noticed is that the thing which is made liable to the duty is an 'instrument'. If a contract of purchase and sale or a conveyance by way of purchase and sale, can be, or is, carried out without an instrument, the case is not within the section, and no tax is imposed. It is not the transaction of purchase and sale which is struck at; it is the instrument where by the purchase and sale are effected which is struck at. And if anyone can carry through a purchase and sale without an instrument, then the legislature have not reached that transaction."