C.S.P. Singh, J.
1. The Chief Controlling Revenue Authority has under Section 57(1) of the Stamp Act referred the following questions to us for answer.
'1. 'Whether the document (Annexure 1) is an 'instrument of partition' as defined in Section 2(15) of the Indian Stamp Act and is chargeable with duty under Article 45 of Schedule 1-B thereof?
2. Whether the document under reference is already properly stamped with a duty of Rs. 2.25?'
The facts necessary for an answer to these questions may be shortly stated. Siya Ram, Kailash Nath and Smt. Kunnan Devi executed a document on the 4th of September, 1969, in which there was a recital that the parties belonged to the same family and were owners of certain properties mentioned in the deed. It was further averred that the parties had partitioned the properties and had entered into separate possession of their shares on the 27th. of March, 1969 and that subsequently a map showing the shares of the parties in the properties had also been prepared. The document thereafter went on to recite that a part of the house which contained a passage, an Angan and a well had not been partitioned and had been left joint. The occasion for executing the document was stated to be for avoiding future disputes between the descendants of the parties and also for the purpose that the document may serve as evidence of the partition that had been effected earlier. A stamp duty of Rs. 2.25 was paid in respect of this document, and thereafter was presented before the Collector, Varanasi for determination of the stamp duty thereon. The Collector was not able to come to a definite conclusion regarding the nature of the document. He accordingly referred the matter to the Board under Section 56(2) of the Stamp Act.
2. Before the Board it was contended on behalf of the executants that the document in question was not an instrument of partition as defined under Section 2(15) of the Act, and support for this was sought from the two decisions of this Court in Bhagwana v. Gulab Kuer AIR 1942 All 220 (FB) and Smt. Thekura v. Sukhraj Singh : AIR1953All350 . The Board, however, was of the view that the document was an instrument of partition as defined in Section 2(15) of the Stamp Act, and was chargeable to stamp duty under Article 45, Schedule ]-B thereof. The Board arrived at this view, in spite of coming to the conclusion that it was possible that the partition might have taken place earlier i.e. on the 27th of March, 1969. It sought support for its conclusion by referring to the definition of the word 'instrument' in Section 2(14) of the Act. In its view, even if a document recording the fact of partition is executed after the date of actual partition, it would still be an instrument of partition and liable to duty as such.
3. We are of the view that theBoard of Revenue was in error in holdingthat the document in question was an instrument of partition. The first questionthat arises in this reference is covered by aFull Bench decision of this Court in AIR1942 All 220 (FB) which has been referred to by the Board in its decision. TheBoard has not followed the decision, inspite of the fact that the decision was fullyapplicable to the facts of the present controversy. It was bound by the view expressed by the Full Bench and was inerror in not deciding the matter in accordance with the decision of this Court. Thisapart, the reasons given by the Board forholding that the document in question wasan instrument of partition, are not sound.An instrument of partition has been defined in Section 2(15) of the Act. Beforeaid of this sub-section can be taken, theinstrument must be one which is executedby co-owners, and the partition must beeffected by that instrument. Inthe present case as the partitionhad already taken place earlier, andthe parties had entered into separate possession of their shares, they ceased to beco-owners of the properties over whichthey had taken over separate possession.Moreover, inasmuch as the present document only referred to the fact of partitionhaving taken place earlier, it did not comewithin the purview of this sub-section.The reliance placed upon Section 2(14) ofthe Act is also erroneous. Before recourseto Sub-section (14) of Section 2 could betaken for the purpose of interpreting Section 2(15). it had to be seen as to whether the adoption of the meaning of theword 'instrument' given in Section 2(14)of the Act was consistent with the provisions of Section 2(15) of the Act. If thedefinition of the word 'instrument' as givenin Section 2(14) is substituted in Section 2(15), an inconsistency would arise. It hasbeen seen that Section 2(15) of the Actexcludes documents other than those executed by co-owners, while the substitution of the meaning of the word 'instrument' as given in Section 2(14) would bring such documents within the purview of Section 2(15). Thus in view of the opening part of Section 2 of the Act, it is not possible to engraft the meaning of the word 'instrument' as given in Section 2(14) in Section 2(15) of the Act. Our conclusion, therefore, is that the document in question was not an instrument of partition as defined in Section 2(15) of the Act, and was not chargeable to duty under Article 45 Schedule 1-B thereof.
4. So far as the second question is concerned, inasmuch as we have held that the document in question is not an instrument of partition, the stamp duty paid on it, was proper.
5. Our answer to the first question is in the negative. As regards the second question the document is properly stamped with duty of Rs. 2.25. We answer the reference accordingly.