SYED MOHAMMAD HAMEED Vs. SYED MANZUR HUSAIN

JUDGEMENT

(1.) The lower Appellate Court has based its judgment largely on a deed of the 19 of February 1871. If this dead be excluded from evidence the finding that the shop belongs to the plaintiff is nor a good finding of fact and the case will have to be remitted to the lower Appellate Court for a fresh finding excluding the evidence afforded by the dead in question. The deed is admissible in evidence if properly stamped. but it is clearly not properly stamped. It was stamped with a stamp of Rs, 1-12 0 as an award. It is a decision by arbitrators bat it in a decision which the parties have also signed and it effects the partition of the parties property. The law governing the case is contained in Act XVIII of 1869, Section 3, Sub-section (22), of that Act defines "partition-deed" as an instrument whereby persons interested in immoveable property jointly or in common or as so parceners or as members of an undivided Hindu family, divide or agrees to divide such property in severally, and included a batwara. A partition deed under that Act ought to bear a stamp of at least Rs. 16. An award was to hear a stamp at the most of Rs. 1. Hence it soon became a popular practice, when a matter of partition was referred to arbitration, to make an award effecting the partition and stop there, and so long as such an award bore the signatures of the arbitrators only, it was sufficiently stamped an award. When Act II of 1899 was under preparation, the framers observed this practice and succeeded in stopping it by including in " instruments of partition" an award by an arbitrator directing a partition; bat it had previously been held that an award directing partition of property, if signed by the parties interested by way of assent to the award, became thereby an instrument of partition and should be stamped accordingly. This was decided by a Full Bench in the case of Amarsi v. Dayal 9 B. 50 : 5 Ind. Dec (N.S.) 33 I accept the view taken by the Bombay High Court. As a result, the deed in question is inadmissible in evidence as not being properly stamped, I allow the plaintiff-respondent a month within which to make up the penalty if he so desires. The case will be put up again in due course.

(2.) The penalty has not been made up. The deed is, therefore, excluded from evidence. I remit the case to the lower Appellate Court for a fresh finding us to whether the shop in question does or does not belong to the plaintiff. In arriving at the finding (the deed in question will be excluded from consideration. Arguments will be re-heard by the lower Appellate Court, The order on the remanded finding most be sent back to this Court within two months of the date of receipt of this order. Ten days will be allowed for objection.

(3.) The finding on remand has now been received. Excluding the evidence afforded by the partition-deed, it has been found that the disputed shop fell into the plaintiff's father's share, on partition. This is a finding of fast which must be conclusive unless it is vitiated in some way. Objection is taken to it on She ground that the appellant had never admitted that the parties had got the shops by partition and that the Court had missed strued the rubkar of the 23 of April 1919, but I find from the judgment that the lower Appellate Court never found that there was any admission by the appellant in that rubkar. The lower Appellate Court only found that the fact of partition of the shops was not seriously contested by Muhammad Hamid or that he explicitly denied the fact of-partition. This correctly represents what happened. Another objection was taken that other documents relied upon by the lower Appellate Court were inadmissible in evidence. The learned Counsel for the appellant informs ma that the documents to which he refers are registered deeds of gift made by Aijaz Husain and his son. These documents were certainly admissible in evidence and the evidence afforded by them was relevant. I, therefore, decide that the finding on remand is not vitiated. On it the appeal fails. The appeal is dismissed with costs including fees on the higher scale.