LAWS(PVC)-1911-10-49

THIRUVENGADATHAMIAH Vs. MUNGIAH

Decided On October 04, 1911
THIRUVENGADATHAMIAH Appellant
V/S
MUNGIAH Respondents

JUDGEMENT

(1.) It has been the practice in the Registrar s office to require the parties to pay the stamp duty leviable upon a partition under the Stamp Act. 1899, schedule I, Article 45 before the issue of the final decree in a partition suit, on the ground that the decree is a final order for effecting a partition passed by a Civil Court within the meaning of Section 2 (15) of the Act, which defines an "instrument of partition."

(2.) The learned vakil for the plaintiff has argued that the duty is not chargeable upon the decree in this case, since it is not a final order within this definition, and that final order means an order made in execution delivering to the parties the shares which have been determined by the decree of the Court.

(3.) To make an order chirgeabla under the section it must effect an actual division of the property and therefore an order declaring the rights of the parties and directing further proceedings for the ascertainment of the specific portion to be taken by each party, or for the demarcation of a share of immoveabla property by metes and bounds, will not fall within the section. The Courts have sometimes passed such interim orders and directed further proceeding to be in execution, but this procedure is irregular, and the Court should, after the specific share of each co-sharer has been determined, pass the final order or decree allotting a particular and ascertained property to each co-sharer and vesting it in him [See Jotindra Mohan Tagore v. Bejoy Chand Mahalap (1905) I.L.R. 32 Calc. 483]. Further proceedings on such a final order will be for delivery of possession merely and in execution, and will not be for effecting a partition. A final order of this kind will be analagous to a final order of the Collector, under Section 263 of the Code of Civil Procedure, 1882, effecting a partition of an undivided estate paying revenue to Government.