P.S. Poti, C.J.
1. This is a reference made under Section 54(1) of the Bombay Stamp Act, 1958 (Bombay Act No. LX of 1958) by the Chief Controlling Revenue Authority, Gujarat State, Ahmedabad, who dismissed an appeal against the order passed by the Collector and Assistant Superintendent of Stamps, Gujarat State, Ahmedabad, imposing a duty of Rs. 5,100/- together with a penalty of Rs. 20/ - on a memorandum of partition which came to the notice of the Collector and Assistant Superintendent of Stamps.
2. One Govindbhai Jivabhai Patel, a 'Karta' of a joint family consisting of himself, his wife and three sons, orally partitioned the joint family properties and the five members of the family took separate items of properties. Thereafter five memoranda of partition were prepared, each one of the memoranda of partition scheduling the properties which fell to the individual share of one of the five members of the family. This was on 15th January 1973. It appears that either one or all of them were produced before the Talati-cum-Mantri of the village Navrangpura so as to enable necessary entries to be made relating to the individual ownership of these items in the revenue records of the village. Thereupon action was taken to impose necessary duty and penalty treating the memorandum of partition as an 'Instrument of partition' as defined in Section 2(m) of the Bombay Stamp Act, 1958 (Bombay Act No. LX of 1958). The Schedule has undergone amendments in 1977 and in 1982 and we are concerned here with the Schedule as it stood at the time of execution of the memorandum. It is agreed that it is Article 46 in Schedule I that would apply to an 'Instrument of partition' as defined in Section 2(m). That definition reads:
2. In this Act, unless there is anything repugnant in the subject or context,-
(m) 'instrument of partition' means any instrument whereby co-owners of any property divide or agree to divide such property in severalty and includes-
(i) a final order for effecting a partition passed by any revenue authority or any Civil Court,
(ii) an award by an arbitrator directing a partition, and
(iii) when any partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether, by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners.
3. It is admitted that the partition had taken effect long before the execution of the memoranda of partition. It had so taken effect on 1st of April 1972 and the individual shares had come into possession of the respective shares Nevertheless the parties thought it fit to prepare five documents more or less in the same terms excepting for the fact that the Schedule in each of the five was different, indicating the items allotted to each one of the five members. Evidently, the instrument will not fall within the main part of the definition as it is not an 'instrument' by co-owners of the property to divide or agree to divide the property in severalty. That had been done earlier. But, the definition was inclusive and, besides the instruments which divide properties belonging to co-owners, takes in three classes; the first of them being a final order for effecting a partition passed by any revenue authority or any Civil Court; and second, an award directing the partition; and third, any document which records the terms of such partition. It is no anybody's case that the inclusive Clauses (i) and (ii) do apply. It is the case that Clause (iii) of Section 2(m) applies to the facts here. In order that it should apply, the partition should have been effected without executing any instrument, and there should be an instrument or instruments signed by the co-owners, the purport of which would be the recording of the terms of partition, whether such recording be by way of declaration of partition or otherwise. While the main part of the definition would take in documents normally executed as deeds of partition of properties between co-owners or agreement to partition properties, other cases where there may not be such partition deeds are sought to be covered by the inclusive Clauses (i) to (iii).
4. It is open to co-owners to effect oral partition of their properties and to enjoy such properties severally on partition. But they may sometimes feel not fully secure in the absence of a record which may evidence the partition in the event of a later dispute. So they may later decide to record the terms of partition for future reference. When that is done, the instrument does serve the purposes of an 'instrument of partition'.
5. In the case before us, though the partition has been effected without any instrument of partition, the co-owners have subsequently chosen to execute instruments and the only question that calls for examination is whether such instruments record the terms of such partition.
5.1. We will now examine the relevant part of the memoranda of partition. As we said earlier, the main part of the five memoranda are identical in nature. The difference is only in the Schedules. After recording the fact that Govindbhai Jivabhai Patel, in the exercise of his right as 'Karta' of the Hindu undivided family and also by and with the consent of the other members of the joint family, orally partitioned all the properties of the joint family between himself, his wife and his sons on 1st April, 1972, the memorandum proceeds to state 'and in the said partition, the properties shown in Schedule I hereto fall to the share of Govindbhai Jivabhai Patel himself. Then follows Schedule I. Mere recording of the fact of partition does not enable the 'instrument' to be read as an 'instrument of partition.' But, if, in addition, the terms of partition are recorded, the instrument will fall within the definition 'instrument of partition' as defined in Section 2(m). There need not be several terms in a partition agreement. The main term would naturally be what is the understanding reached between parties as to the nature of the division. It is in this context that the statement made in the memorandum of partition that in the said partition the properties shown in the Schedule fall to the share of one of the co-owners, becomes relevant as the recording of the term of partition.
6. In this view, the Court-fee payable on the document is as on a document falling within Section 2(m). Hence stamp duty as per Article 46 Schedule I as it stood at the relevant time is leviable. That is what has been decided by the Collector and affirmed by the Appellate Authority. In this reference, it is, therefore, found that the duty payable is as on an 'instrument of partition'. Question No. 1 is answered in the affirmative. In view of the answer to Question No. 1, there is no question of levying separate stamp duty of Rs. 3/- each for the agreements and, therefore, Question No. 2 is answered in the negative. No costs.