1. The short question involved in the appeal is whether when the court passes an order under Order XX Rule 18 the Code of civil Procedure for the drawing up of a final decree in a suit for partition the final decree so drawn for purposes of appeal must be engrossed of non-judicial stamp in as much as it amounts to an 'instrument of partition within the meaning of Section 2(15) of the Rajasthan Stamp Act 1952, within the Rajasthan Act. No. XVI of 1966. Section 2(15) of the aforesaid Act, as amended, reads as follows:
(15) 'instrument of partition' means any instrument where coowners of any property divide or agree to divide such property in severability, 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; &
(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 partition amongst the co-owners.
From the above definition, there can be no doubt that the final decree in partition suit must be engrossed on non judicial stamp being an instrument of partition. The expression 'final order' referred to in the definition is final order of the court of original jurisdiction empowered to give order for effecting partition and is not an order passed by highest court of appeal. It, therefore, means the final decree passed in pursuance there of under Order XX Rule 18 of Code of Civil Procedure.
2. It is, however, urged on behalf of the appellant that there is a distinction between a final decree for partition drawn under Order XX Rule 18 of the Code of Civil Procedure for purposes of appeal and a final decree for partition which is intended to be acted upon as an instrument of partition i.e. for taking possession of the specific shares all(sic)ed to the members of the erstwhile joint Hindu family We are afraid, the distinction is without any basis whatever.
3. While a preliminary decree for partition which merely declares the shares of the members of the family, is not a final order effecting partition amongst the members of' joint family, and therefore is not an instrument of partition, within the meaning of Section 2( 15), the final order is such an instrument for effecting partition and therefore the final decree in partition suit is required to be engrossed on non-judicial stamp paper of required value under Article 45 of the stamp Act. Jnanadasundari Shaha v. Madhab Chandra Mala (1) AIR 1932 Calcutta 282: Dilbagh Raj and Ors. v. Mt. Teka Devi (2)-AIR 1932 Lahore 249: Pandiui Satyanandam and Ors. v. Paramkusom Nammoyya and Anr. (3)-AIR 1938 Lahore 307: Gopi Mal v. Vidya Wanti etc. (4)-AIR 1942 Lahore 260 (FB); Board of Revenue Madras v Moideen Rowther and Ors. (5)-AIR 1956 Madras 207 (FB) Kapila Bai v. H.S. Modhava Rao and Ors. (6)-AIR 1957 Myosre 71; Farbhat Rumar Mukherjee v. Santi Ranjan Banerjee (7)- : AIR1957Cal375 ; Smt. Kotipalli Mahdakshamma v. Kotipali Ganeswara Rao and Ors. (8)- : AIR1960AP54 Mst. Shahabia Begum v. Mst. Pukhraj Begum and Ors. (9)- : AIR1973Delhi154 ; and Jainuddin v. Smt. Gulab (10)-1974 Rajasthan Law Weekly 260.
4. In Jnanadasundar. Shaha's case (1) (Supra), it was observed that final decree in partition suit is required to be engrossed on non-judicial stamp paper of required value under Article 45 of the Stamp Act, and that if such stamp paper is not supplied by the parties, no final decree can be drawn and the suit will remain pending. In Dilbagh Rai' case (2) (Supra), it is observed that a final decree drawn up under Order XX Rule 18 of the Code, without a proper stamp, has no existence as a decree and the proceedings taken in execution of such decree are invalid.
5. The High Courts, in all these cases, have unanimously taken the view that a final decree for partition should be engrossed on a non-judicial stamp under Article 45 of the Stamp Act, because it is an instrument of partition within the meaning of Section 2(15) of the Act. In some of these cases, the High Courts have even gone to the extent of laying down that unless final decree for partition is engrossed on a non-judicial stamp in accordance with the provisions of the Stamp Act (here is no decree in existence, at all Other High Courts have taken the view that such an unstamped decrees cannot be acted upon.
6. We are not impressed with the submission that if that were the view, a final decree for partition would have to be engrossed several time on a non-judicial stamp during the course of a litigation. It is said that when a final decree for partition is passed by the court of first instance, it would have to be engrossed on a non-judicial stamp and thereafter if the decree is modified in appeal by the High Court or the Supreme Court, there would be another final decree for partition, and therefore, it will again have to be engrossed on stamp. There is an obvious fallacy in the argument. There can be one and only one final decree in a suit for partition.
7. Where a final decree is passed by the court of a first instance, it must be engrossed on a non judicial stamp. From this decree, there may be an appeal to the High Court or even to the Supreme Court which may modify or set aside the final decree for partition But it cannot be said by an) stretch of imagination that the appellate decrees passed by the High Court or the Supreme Court are final decrees in a suit for partition and therefore, it is only once and never thereafter that a final decree in a suit for partition would have been engrossed on a non judicial stamp and that too in the court of first instance and no where else. Further, the words a 'final order' referred to in definition of an instrument of partition contained in Section 2(15) of the Rajasthan Stamp Act, which includes a 'final order for effecting a partition' passed by 'any Civil Court', means the final order of the lowest court of original jurisdiction, empowered to give an order for effecting partition, under Order XX Rule 18 of the Code of Civil Procedure, i.e. the court of first instance, and not orders passed by the highest court of appeal: Stamp Reference by the Board of Revenue (1914) 36 I.L.R Allahabad 137(11). The reason for this is that the duly once paid on the final decree for partition would enquire to the benefit of all the parties at the subsequent stages of the suit.
8. The decision in M.L. Manjappa and Ors. v. Kalyani Pujarthy and Ors. (12) A.I.R. 1971 Mysore 350/-, instead of supporting the appellant's contention, rather goes against it. It is not authority for the proposition that final decree for partition drawn under Order XX Rule 18 of the Code for purposes of appeal, need not be engrossed on the non judicial stamps as required under Section 2(15) read with Article 45 of the Stamp Act There, due to inadvertence such a decree was drawn on the printed form without the requisite stamp fees supplied. The court held that if the final decree for partition has not been engrossed on non-judicial stamp due to a mistake of the court, the party appealing from that decree should not be penalised for the mistake by holding the appeal to be incompetent. As a necessary corollary, it follows that the decision supports the contrary proposition that a final decree for partition under Order XX Rule 18 of the Code has to be engrossed on a non-judicial stamp. That apart, the decision is not an authority for the proposition relied upon. The provisions of Section 2(15) read with Article 45 of the Stamp Act, 1899, were not considered at all. In that case question at issue did not arise directly.
9. The further submission that if the final decree for partition was subsequently set aside by the High Court or the Supreme Court, then the non judicial stamps of the considerable value of Rs. 29,000/- would go waste and useless, cannot be accepted This argument ignores the provisions contained in Sections 49 to 55 of the Rajasthan Stamp Act read with Rule 51 of the Stamp Rules made thereunder, A provision has been made in Rule 51 that within two years from the date when the non-judicial stamps have been rendered useless, a refund thereof may be granted. Therefore, if a decree is set aside by the High Court or the Supreme Court, the party would be entitled to get the refund, and for purposes of getting the refund the law allows a reasonable period of 2 years.
10. The next and the last submission that if that were the view then any one of the parties, by not supplying the requisite stamp, proportionate to his share, may withhold the drawing up of the final decree for partition indefinitely, cannot also be accepted Under Section 29 of the Stamp Act all co-sharers are required to contribute stamp duty ratably according to their shares. Even the contesting respondent i.e. respondent No. 1, will have to contribute near about Rs. 6000/- first towards the stamp duty. The stamp duty may be heavy looking to the value of the property to be partitioned, but for that reason, the parties cannot escape their liability to pay it. On the contrary, the courts will have to be very strict in enforcing the provisions of the Stamp Act.
11. The submission that any one of the co-sharers may withhold indefinitely the drawing up of the final decree by non-payment of the stamp duty., over looks the fact that if any one of the parties to the suit fails to comply with the legal directions of the court, the suit for partition qua him will become liable to be dismissed under Order XVII Rule 3 of the Code. In a partition suit, the position of the defendants is also that of the plaintiffs, If a defendant or a plaintiff fails to pay the stamp duty, he will not be able to obtain final decree in regard to his share and the final decree will be drawn only in regard to the shares of the remaining parties to the suit. The defaulting party will acquire no title nor he will be entitled to enforce his rights through the courts.
12. It accordingly follows that a final decree for partition is to be drawn under Order XX Rule 18 of the Code of Civil Procedure even for purposes of appeal, and must also be engrossed on non-judicial Stamp.