Bishambhar Dayal, C.J.
1. This is a reference under the Indian Stamp Act, 1899. The questions have been referred to this Court on account of a requisition made by this Court in Miscellaneous Petition No. 331 of 1964. The questions referred are:
'(1) Whether the Batwaranama dated 3rd September 1959 is a document on which a stamp duty is leviable under the provisions of the Indian Stamp Act, 1899?
(2) If so, whether the document is an instrument of partition within the meaning of Section 2(15) of the Act, or an instrument of non-testamentary settlement within the meaning of Section 2(24)(b) of the Act?'
2. The facts which have been stated in the reference giving rise to the dispute are that one Dwarka Prasad executed the document in question, by which he distributed the property between himself and his sons. The sons were minor and were represented by their mother as guardian. No share was given to the mother. In the document, Dwarka Prasad stated that he had the right to partition the property, and because there was no certainty of life he had decided to make the partition. The document is described as a deed of partition. It is in Hindi, and the relevant portion of the document has been quoted in the reference as follows:
^^ckcr ,slh tks fd }kjdk izlkn vkRet Jh egktunsorky tks fuoklh flagiqj rglhy o ftYgk ujflagiqj ftys esa xzke pyesVk ukao' ds dk'rdkj gS o dfFkr xzke esa gekjh tehu ds HkwfeLokeh o Hkwfe/kkjh fLFkrgS pwafd vktdy ftUnxh dk dksbZ Hkjkslk ugha gSA blfy;s ge viuh tehusa fLFkr xzkepyesVk dk uhps vuqlkj vius o vius yM+dksa vfuydqekj o vf[kydqekj o;Ld ikyd ekrkJherh ehjkckbZ ds chp cVokjk dj nsrs gSa o ftlds djus dk dkuwuu gesa vf/kdkj gSA**
3. When the document was presented for registration the Registrar impounded the same and sent it for the opinion of the Collector. The Collector considered it to be a non-testamentary settlement as defined by Section 2(24)(b) of the Act. On a revision before the Board of Revenue the same was upheld and the Board refused to make a reference; but when a writ petition was allowed, the reference has now been made. During this reference, it appears to have been taken for granted that this was a joint Hindu family consisting of Dwarka Prasad, his two minor sons Anilkumar and Akhilkumar, and the wife of Dwarka Prasad and mother of the two sons. The Revenue authorities were of opinion that this partition deed had been executed by Dwarka Prasad alone and this was not the result of a multilateral agreement between the members of the family and therefore it could not be described as a partition, but it must be held to be a disposition of property by Dwarka Prasad and also because mother had not been Riven a share.
4. Having heard learned counsel for both the parties, we are of opinion that the Revenue authorities were not right in taking that view of the case. Under the definition of 'instrument of partition' under Section 2(15) of the Stamp Act,what is necessary is that either the property should actually be divided or there should be an agreement to divide the property. In the present case, the property has actually been divided. Whether all the co-owners have got a share is not relevant. A deed of partition necessarily presupposes that more than one person have a joint share in the property and that joint share is divided between the parties. In the present case, there is no dispute that the property was divided by Dwarka Prasad, as he states in the document, in the exercise of his right to divide the property. This indicates that this was joint family property and Dwarka Prasad being the Karta of the family exercised that right to divide it. When the Karta who is the father exercises the power to divide the property, such a division is binding upon the sons. We are therefore satisfied that this document is clearly an instrument of partition within the meaning given to it by the Stamp Act.
5. The document could be a 'settlement' within the meaning of Section 2(24)(b) if the property had belonged to the settler. The relevant sub-section is as follows:
'Settlement' means any non-testamentary disposition, in writing, of movable or immovable property made- (b) for the purpose of distributing property of the settler among his family......The property therefore must be 'of the settler'. If the property is of the joint family and not of the settler alone, the document by which such property is divided cannot be described as a 'settlement'.
6. There is no allegation before us that this document is not chargeable to any duty. Our answer to the questions referred to us therefore is:
'(1) The document is liable to stamp duty under the Indian Stamp Act, 1899.
(2) The document is an instrument of partition within the meaning of Section 2(15) of the said Act.'
7. These answers shall be sent to the Board of Revenue.