1. This is an appeal from an order of the First Class Subordinate Judge of Surat transferring a certain decree for execution to the District Judge of Navsari in the Baroda State.
2. The facts, so far as it is necessary to mention them, are these. One Dhanjibhai a Parsi died on November 12, 1901, leaving behind him property both moveable and immoveable. The appellant was the son of his brother and had been taken in adoption by him. On September 4, 1911, one Beramji Mancherji son of Dhanjibhai's sister filed a suit for administration of his estate. An issue was raised in that suit as to the validity of the adoption of the appellant, who was defendant No. 1 in the suit, and it was held that though the adoption had taken place, it was not legally valid. For various reasons with which we are not now concerned the suit was not disposed of until December 23, 1935. There were appeals from the decree to this Court which were decided on August 2, 1940. The trial Court's decree was confirmed with variations not of material importance.
3. The decree is a short one and may be set out in full :
It is hereby decreed that :-
1. The heirs of deceased Dhanjibhai are entitled to share in his property, as mentioned in the schedule attached herewith.
2. These sharers are entitled to take possession according to their shares of the following immoveable properties. (Then certain lands are described.)
3. These sharers are further entitled to receive from defendant No. 1 the amount in proportion to their share declared out of Rs. 35,605 found due from defendant No. 1 together with interest at six per cent. per annum on the amount due from the date of suit till realisation.
These sharers are to] pay the requisite Court fees in respect of the immoveable properties and amounts they are entitled to before they seek to recover the same in execution. Parties to bear their respective costs of the suit.
4. It may be mentioned that this sum of Rs. 35,000 and odd represents the proceeds of properties of Dhanjibhai sold by defendant No. 1 who according to the findings in the suit had wrongly intermeddled with the estate. The respondents who were defendants Nos. 32 and 42 in the suit are two of the sharers and they are seeking to execute Clause (3) of the decree in respect of their shares. For this purpose they made an application to the Surat Court to transfer the decree to Navsari in the Baroda State and obtained an ex parte order. The appellant-defendant No. 1 then applied to the Surat Court to have the decree re-called. This application was rejected and the appellant accordingly comes to this Court.
5. The principal point argued before us, as in the Court below, is that the decree cannot be transmitted to Baroda for execution because it is not capable of execution, and it is said to be not capable of execution because it is not engrossed on a stamp paper. Whether it requires to be so engrossed depends on whether it is a final order for effecting partition within the meaning of Section 2(15) of the Indian Stamp Act, which says :
'Instrument of partition' means any instrument whereby co-owners of any property divide or agree to divide such property in severally, and includes also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an arbitrator directing a partition.
6. Prima facie and apart from authority, Clause (3) of the decree in question, which is the only part with which we are concerned, does not appear to us to be an order for effecting partition. Learned counsel for the respondents said it could not be such an order because it was made in an administration suit and not in a partition' suit. That, however, is not conclusive. The definition in the Indian Stamp Act does not say 'an order in a partition suit.' An order for effecting a partition might be made in an administration suit, and if so, in our opinion it would come within the definition. At the same time it is true that orders for effecting partition are generally made by civil Courts in partition suits and the procedure in such suits may give an indication of what the legislature meant. In an ordinary partition suit the Court may have to deal with revenue paying lands, houses, and moveables like ornaments, utensils and money. In the case of the first two, the Court's decree merely determines the shares and the papers are then sent to the Collector who makes the partition. The Court itself makes no order about partition, and, as we understand the matter, the Collector does not draw up any document which is an instrument of partition until after the partition has actually been made. In the case of moveables the Court makes a decree determining the shares. This is a preliminary decree and not a final decree, as expressly stated in Order XX, Rule 18. Then the partition is actually carried out, usually through a Commissioner, and after this has been done, the Court makes a final decree which is no doubt an instrument of partition. In that connection reference may be made to Order XXVI, Rules 13 and 14.
7. In the ordinary, way therefore there is no instrument of partition until the property, immoveable or moveable as the case may be, has been actually divided by metes and bounds, or in specie. In these ordinary cases 'final order for effecting a partition' means, in practice at any rate, an order which makes an effectual partition and vests specific properties in the sharers. However, it frequently happens, in partition suits that one party, usually the manager, is held accountable for past income or funds misappropriated. The Court then determines what is due from him and directs that it should be paid to or recovered by the persons entitled according to their shares. The question may then arise whether such an order amounts to an order effecting the partition of any property and is not simply a decree for money.
8. On the analogy of the two cases already mentioned, that is to say, the partition of revenue paying lands by the Collector and the partition of houses and moveables by a Commissioner, it might be argued that the sort of order we are now considering is not a final order for effecting a partition, because no partition has taken place. But the actual words of the definition are 'order for effecting a partition,' The kind of order we are discussing does vest a certain sum of money in the sharers according to their specific shares. It gives them the right of recovering those shares without any further order. It seems therefore that if the money in question can be regarded as the property of the persons jointly entitled, and it is partible property, the order would come within the definition as being one for effecting a partition of that property.
9. A much better argument put forward by learned counsel for the respondents, is that there must at any rate be property in existence before there is any question of partitioning it. Mr. Mistry was prepared to concede that if this sum of Rs. 35,000 and odd was actually, in the hands of defendant No. I, or had been produced and paid into Court, the Court's order enabling the respondents to recover their specific shares of it might be regarded as an instrument of partition. But he says there is no evidence that it does exist and the order does not necessarily entitle the respondents to anything at all. Outstandings are property no doubt, but not property capable of being partitioned within the meaning of the definition in the Indian Stamp Act until realised.
10. It is curious that the point does not appear to be covered by any decision in the authorised reports. Mr. Thakor for the appellant relies on Satyanandam v. Nammayya A.I.R.  Mad. 307. The Court was there concerned with a very elaborate decree in a partition suit containing inter, alia a number of clauses like the following :-
13. That the plaintiff and defendant 1 do each get from defendants 40-43 half of Rs. 1,30,496, being the sum shown as balance in the three names katha, and interest thereon from 14th February 1926, and that the plaintiff and defendant 1 do each get from defendants 40-43 half of Rs. 31,895-11-7, being the balance under No. 2 Venkayya katha and interest thereon from 6th October 1925.
14. That plaintiff, defendant 1 and defendant 5 do each get from defendants. 40-43 one-third of Rs. 43,145-4-9, being the sum shown as balance in Sesha Rao's katha and interest thereon from 31st March 1925.
20. That defendants 40-43 do recover from defendant 1 personally and from the family properties of defendants 2 to 4, the sum of Rs. 98,777-2-10, being the balance of debts still payable under No. 1 Venkayya katha, after deduction of the sum payable by plaintiff as para 19 supra, and interest on the said sum of Rs. 98,777-2-10 from 14th March 1926.
11. It was held that by reason of these clauses the decree must be stamped as an instrument of partition. We think the case is distinguishable on the facts in at least two respects. In the first place some of the moneys referred to were evidently existing assets of the family, money in the bank so to speak. It was not merely a case of dividing outstandings. In the second place it was clearly a case of division of property among the co-owners inter se. It was not a case of recovering moneys due to the family by a stranger. The Court laid stress on that point. It was pointed out in the judgment that the directions in question were not directions for payments to be made by strangers to the joint family as a whole, they were directions for the payment of specific sums to individual members of the joint family. In that connection it is interesting to refer to the terms of Article 45 of the Stamp Act, which determines the duty to be paid on an instrument of partition. It is the same duty as for a bond for the amount of the value of the separated share or shares of the property, and there is this note :
The largest share remaining after the property is partitioned (or if there are two or more shares of equal value and not smaller than any of the other shares, then one of such equal shares) shall be deemed to be that from which the other shares are separated.
It might sometimes be rather difficult to say what the meaning of this provision is. But at any rate it is clear that what is contemplated is the partition of property in the hands of the persons jointly entitled to it.
12. Apart from these points, however, we are not, with respect, altogether convinced by the reasoning in Satyanandam v. Nammayya. It is stated there (p. 311) :.there is no gainsaying the statements of defendants 40-43 that these payments are to be made out of moneys that were before the suit joint family property, or out of the proceeds of the sale of joint family property. The effect of these provisions in the decree therefore is that properties which were joint properties are divided amongst the members of the family who were the co-owners.
13. If the sums ordered to be paid were to be paid only out of family properties, there would be little difficulty. But the decree created debts which would have to be satisfied whether there were any family properties out of which to satisfy them or not. The same of course is true in the case before us. In spite of the authority in Satyanandam v. Namtnayya, therefore, we are not satisfied that the decree in this case comes within the definition of an instrument of partition and requires to be stamped.
14. That being our view on the main point, it is unnecessary to consider what, if anything, could be done to put the matter right on the footing that a stamp was required. It may be mentioned, however, that learned counsel for the appellant agreed that the defect could have been remedied as laid down in Shaikh Rafiuddin v. Latif Ahmad 14 C.W.N. 1101 and Jogesh Chandra Bandopadhya v. Mohini Mohan Ghose 38 C.W.N. 1118. We have expressed our opinion on the question of the necessity for a stamp, because we were asked to do so. But as the only order made by the Court from which the appeal is brought is one transferring the decree to the Baroda Court for execution, which is not an order in execution proceedings, we think it is doubtful whether we are really concerned with the matter at all.
15. The only other point argued is merely technical. There are reciprocal arrangements by treaty between British India and Baroda by virtue of which the British Courts execute decrees of the Baroda Courts and vice versa. It is conceded that if the first contention of the appellant fails, the Sub-Judge may send the decree and other documents to Baroda for execution there. What the appellant objects to is simply that in his order sending the papers the Subordinate Judge has used the word 'transferred,' as if he had been acting under the Civil Procedure Code, which does not apply. It is not clear to us that the use of this word 'transferred' can make any material difference. But the respondents attach no importance to it, and in order to comply strictly with the High Court Civil Circular No. 44 we direct that the word 'sent' be substituted for the word 'transferred' in the two orders of the First Class Subordinate Judge, Surat, made on April 22, 1941,
16. The appeal must be dismissed with costs.