1. In this Civil Revision Petition the question to be decided is whether the documents marked as Exs. A and B, and described in the order of the learned Subordinate Judge, come within the definition of an instrument of partition, and if so, what is the correct stamp duty payable on them? Both these documents are styled as partition lists, one of them relating to the properties allotted to the share of Gurram Musal Naidu (defendant 1) and the other relating to the properties allotted to the share of Gurram Pedda Venkat-appa Naidu (the plaintiff). In order to determine the nature of these two lists put together, we have to pay attention to certain significant recitals contained in them. Ex. A begins with a sort of preamble as follows:
List (of bonds, etc.) which fell to the share of Gurram Musal Naidu in the matter of the determination of the shares of Gurram Musal Naidu, his first wife's son Pedda Venkatappa Naidu and Vengamma, wife of Ghenganna Naidu, in the bonds, documents, hand loans, etc., on a partition effected on 30th December 1908.
2. After giving the details of the several items of properties which fell to the share of Musal Naidu, it is stated that he has retained those properties in his possession and in regard to the aforesaid properties there is no litigation between him and the other two. It is further stated that they have settled their shares in the presence of the mediators who have also signed the list. It is wound up by a statement:
We have partitioned all the properties in Ohit-toor taluk except those properties in Karvet-nagar.
3. Similarly, in respect of the partition list relating to the properties allotted to the share of the plaintiff, the same preamble is found at the beginning. Later on we find the recital to this effect, namely,
the bonds, documents, decrees, lands, and miscellaneous items coming up to the amount referred to above, have been delivered to me by my father Musal Naidu in the presenoe of the respectable panchayatdars who have signed below, and I have taken delivery of the same. Henceforward, there shall be mere kinship as between me and my elder sister and my father Gurram Musal Naidu. As regards the properties, there is no dispute to be enforced by litigation. Except the properties in Karvetnagar, we have settled in regard to the properties situate in Chittoor taluk.
4. There are also other covenants with regard to immovable properties, such as the enjoyment of eertain properties by the three persons in equal shares and the concurrence of all the three in the matter of effecting a sale of them. With respect to some other lands, the covenant is that they should be jointly enjoyed by all the three. Lastly, there is a clause to the effect, that except as regards the properties which fell to the share of the plaintiff, he has no claim to those which fell to the shares of his father and sister. Both these lists have been signed by all the three sharers. It is clear that the division of the properties, moveable and immoveable, has been effected in this manner, in determination of the shares of the three persons in those properties. The very fact of the reference to the properties as those in which the three persons have certain shares, indicates that they purport at last to deal with them as co-owners. It is also clear that, after the effecting of such a division, each of the sharers has no claim or right or dispute in respect of the properties allotted to the other two persons. If the parties to these lists do not even purport to deal with these properties as co-owners, it is difficult to understand the significance of the preamble and also the later clause adverted to above. According to the definition of an instrument of partition given in Section 2, Clause 15, Stamp Act, it must be an instrument whereby co-owners of any property divide or agree to divide such property in severalty. There is no difficulty in holding that under Exs. A and B the parties have divided the properties in severalty and have also agreed to divide some of the items in that manner.
5. The only question is whether we can deem such a division or an agreement to divide, as having been effected by co-owners. The documents do not in so many words describe the parties as co-ownera. It is argued by Mr. Section Varada-chariar for the petitioner, that unless the document can be construed to be one executed by co-owners of any property, it does not come strictly within the definition given in the Stamp Act. But the Pull Bench decision of our High Court reported in Reference under Stamp Act, Section 46(1) is an authority for the position, that even if the description as co-owners is not actually found in a document of this kind, it is still open to the Court to find on a proper construction of the terms thereof, whether the parties purport to be co-owners of the property or not. In the documents dealt with in that case, the partition was effected in respect of the properties which were stated to be jointly held by two siaters. The document was taken to be one executed by persona purporting to be co owners of the property, and in that capacity they have agreed to divide the property in severalty. In that case, the document was drawn up between one of the sister and the husband of the other sister (deceased) and. still the learned Judges have construed the document to be one executed by the parties purporting to be co-owners of the property. It is argued that in view of the contentions of the parties in this suit, the plaintiff and defendant 1 and also the plaintiff's sister could not be deemed to be co-owners at all.
6. The plaintiff claims all these properties as belonging to him exclusively, alleging that he has become solely entitled to them on the death of his maternal grandmother, whereas, defendant 1 appears to claim all these properties as his self acquisitions and is also setting up his right as the illatom son-in-law, For the purpose of construing the nature of the document in question, it is not necessary to consider the contentions raised by the parties in the present suit as regards their right to the properties. Even if they are not really co-owners in the eye of the law, still if they purport to be co-owners and if a document of this kind is executed in that capacity, it jwould come within the definition of an instrument of partition. That being so, we are only concerned with the construction of the terms of the document and not with the legality of the claim set up by one or the other in this suit. Taking all these facts into consideration we are of opinion that Exs. A and B put together come within the definition of an instrument of partition.
7. The next question is what is the proper stamp duty payable on such a document? Under Article 45, Stamp Act, the duty payable is the same duty payable on a Bottomry Bond (No. 16) for the amount of the value of the separated share or shares of the property. In this case the plaintiff undoubtedly got the largest share under the partition deed. The value of the share allotted to defendant 1 is much less and the value of the share allotted to the plaintiff's sister is said to be far below even the value of defendant 1's share. That being so, the two smaller shares which have been se-Ipsirated off from the largest share should be the criterion for fixing the stamp duty payable on the instrument. This is clear from the language of the clauses contained in Article 45. The same view has been taken by a Bench of this Court in the decision reported in Krishna Chandra v. President Agency District Board AIR 1928 Mad 1181. The learned Subordinate Judge is not correct in determining the stamp duty payable on this document on the basis of the value of the largest share allotted to the plaintiff. The-amount of stamp duty must be determined on ascertaining the value of the two smaller shares which have been separated off from the larger share. That must be determined upon the available materials. We therefore leave the ascertainment of the proper stamp duty leviable on Exs. A and B, according to the method indicated above, to the lower Court. On that basis, the penalty will be fixed at 10 times the stamp duty. Whichever party wants to have this document exhibited in the suit may have-to pay the stamp duty and penalty for that purpose. But this does not affect the question of the ultimate liability for the payment of the stamp duty and penalty levied on this document.
8. With this modification, the Civil Revision Petition is dismissed with costs, to the Government Pleader who has appeared to oppose this petition.