TADEPALLI PEDA NAGABHUSHANAM; TADEPALLI SUBBAROW; TADEPALLI KRISHNAYYA Vs. TADEPALLI PITCHAYYA; TADEPALLI PITCHAYYA; TADEPALLI PITCHAYYA

JUDGEMENT

(1.) SECTION 2, Clause 15 of the Stamp Act, 1899, lays down that an award or decree directing a partition is to be treated for the purpose of the Stamp Act as an instrument of partition. That being so, there can be no doubt that the parties must pay a fee on the value of the properties as required by the Stamp Act. Further, there is a provision in the decree that each of the defendants is to get his share on paying the necessary Court-fee. The contention is that there is no provision in law for the defendants to pay any Court-fee. But if a defendant under a decree or award for partition, such as we are concerned with in this case, gets a share allotted to him of the property and if he wishes to execute the decree, it seems to be reasonable that he Should pay his share of the Court-fee leviable on the entire decree. The decision in Fulchand v. Bai Ichha 12 B. 98: 6 Ind. Dec. (N. S.) 551. which has been referred to, does not relate to a case of partition. That was in a suit for possession of property and recovery of mesne profits. We hold that each of the defendants who wants to execute the decree must pay the Court-fee not merely on the item of which he seeks possession, but on the entire share allotted to him. The learned Pleader for the respondents concedes that the decree is executable and there is no objection on that score. We set aside the order and direct that execution do issue on payment by each defendant of the Court-fee on the entire share allotted to him. The appeal and the revision petitions are allowed. Each party will bear his own costs.