1. It has been the practice in the Registrar's office to require the parties to pay the stamp duty leviable upon a partition under the Stamp Act. 1899, schedule I, Article 45 before the issue of the final decree in a partition suit, on the ground that the decree is a final order for effecting a partition passed by a Civil Court within the meaning of Section 2 (15) of the Act, which defines an 'instrument of partition.'
2. The learned vakil for the plaintiff has argued that the duty is not chargeable upon the decree in this case, since it is not a final order within this definition, and that final order means an order made in execution delivering to the parties the shares which have been determined by the decree of the Court.
3. To make an order chirgeabla under the section it must effect an actual division of the property and therefore an order declaring the rights of the parties and directing further proceedings for the ascertainment of the specific portion to be taken by each party, or for the demarcation of a share of immoveabla property by metes and bounds, will not fall within the section. The Courts have sometimes passed such interim orders and directed further proceeding to be in execution, but this procedure is irregular, and the Court should, after the specific share of each co-sharer has been determined, pass the final order or decree allotting a particular and ascertained property to each co-sharer and vesting it in him [See Jotindra Mohan Tagore v. Bejoy Chand Mahalap I.L.R. (1905) Calc. 483. Further proceedings on such a final order will be for delivery of possession merely and in execution, and will not be for effecting a partition. A final order of this kind will be analagous to a final order of the Collector, under Section 263 of the Code of Civil Procedure, 1882, effecting a partition of an undivided estate paying revenue to Government.
4. The decree in the present case recites a razinamah executed by the parties and is made by consent of parties; and the decretal portion allots specific properties to the several parties and directs other parties to deliver up possession, and also provides for the execution of a sale deal and lease of certain immoveable property.
5. In my opinion the decree effects an actual partition of the property among the parties, i.e., it vests specific portions of the estate in particular parties, and is therefore the final order in the suit effecting a partition, and is accordingly chargeable with duty as an instrument of partition [see Balaram v. Chiloji I.L.R. (1905) Bom. 366
6. Any proceedings subsequent to this decree can only be for the purpose of obtaining actual possession of, or the execution of documents relating to, specific properties.
7. I have been Preferred to a judgment of Wallis, J., in Original Suit No. 70 of 1906 in which he expresses the opinion that 'final order' in Section 2(15) applies to some order of the Civil Court made in execution: but the above case which is a decision of a Pull Bench does not appear to have been brought to the notice of the learned Judge.
8. I am also of opinion that the decree in the present case, being a consent decree, is an instrument whereby the co owners have agreed to divide property in severalty since it is the formal record of an agreement entered into by the parties, and that it falls within the first part of Section 2 (15).
9. The stamp paper is directed to be brought in within seven days.