SURAT BAI Vs. RADHA KISHAN

JUDGEMENT

(1.) HEARD learned counsel.

(2.) THE short question involved in the appeal is whether when the court passes an order under Order XX rule 18 of the Code of Civil Procedure for the drawing up of a final decree in a suit for partition, the final decree so drawn for purposes of appeal must be engrossed of non judicial stamp inasmuch as it amounts to an "instrument of partition" within the meaning of section 2 (15) of the Rajasthan Stamp Act, 1952, as amended by Rajasthan Act No. XVI of 1966. Sec. 2 (15) of the aforesaid Act, as amended, reads as follows, - " (15) 'instrument of partition' means any instrument whereby co-owners of any property divide or agree to divide such property in severality, and includes (i) a final order for effecting a partition passed by any revenue authority or any Civil Court: (ii) an award by an arbitrator directing a partition; and (iii) When any partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of partition amongst the co-owners. " From the above definition, there can be no doubt that the final decree in partition suit must be engrossed on non-Judicial stamp being an instrument of partition THE expression "final order" referred to in the definition is final order of the court of original jurisdiction empowered to give order for effecting partition and is not an order passed by highest court of appeal. It, therefore, means the final decree passed in pursuance thereof under Order XX rule 18. of the Code of Civil Procedure.

(3.) THE next and the last submission that if that were the view then any one of the parties, by not supplying the requisite stamp, proportionate to his share, may withhold the drawing up of the final decree for partition indefinitely, cannot also be accepted. Under section 29 of the Stamp Act, all co-sharers are required to contribute stamp duty rateably according to their shares Even the contesting respondent i. e. respondent No. 1, will have to contribute near about Rs 6,000/- first towards the stamp duty. THE stamp duty may be heavy looking to the value of the property to be partitioned, but for that reason, the parties cannot escape their liability to pay it. On the contrary, the courts will have to be very strict in enforcing the provisions of the Stamp Act.