Overruling the objection of the petitioner that the compromise decree does not amount to an instrument of partition, the court below has held that it is an instrument of partition within the meaning of Article 45 of the Indian Stamp Act ( hereafter called as ‘ the Act ‘ ), on the ground that the plaintiff would get particular items of property under the final decree. Hence this revision.
whether on the facts and in the circumstances, the compromise decree is or is not an instrument of partition within the meaning of Section 2(15) of the Stamp Act.
it is not the form but the substance of the compromise decree that really matters to decide whether it amounts to a final order of the court effecting partition of the properties by the co-owners. On a careful consideration of the entire clauses of the compromise decree, I am of the firm view that it does not amount to a final order effecting partition of the suit properties by the parties as co-owners. Where the defendants agree to give some property to the plaintiff on grounds other than the claim of the plaintiff as co-owner to divide the suit properties, a compromise decree passed under those circumstances does not amount to an instrument of partition within the meaning of Section 2(15) of the Act. The genesis or the claim to partition the properties owned jointly must be co-ownership. Where the claim for partition on the basis of co-ownership is not accepted under the compromise decree and some property has been given to the plaintiff out of love or affection or due to some other cause or consideration, the compromise decree cannot be termed to be an instrument of partition within the meaning of Section 2(15) of the Act.[PARA 8]
HELD: 9. For all the reasons stated I have no hesitation to hold that the order of the court below is vitiated by material irregularity in the exercise of its jurisdiction and the same is liable to be set aside. In the result, the civil revision petition is allowed holding that the compromise decree is not an instrument of partition within the meaning of of the Section 2(15) Act. There will be no order as to costs.