1. This is a reference under Section 57 of the Indian Stamp Act. The respondent Lakshmanasami Chettiar executed a document on 15-2-1970 distributing his properties among his daughters both married and unmarried stating that they are his hereditary properties as well as his self-acquired properties. The document was presented for registration. But as the Sub-Registrar felt a doubt about the nature and chargeability, he impounded it and referred it to the District Registrar for valuation and levy of stamp duty. The District Registrar treated the document as settlement deed and issued notice to the respondent through the Sub-Registrar, for evidence regarding the market value of the properties. The respondent filed an affidavit before the Sub-Registrar stating that the properties are undivided and enjoyed in common by him and his daughters as co-owners, that the division was made by him as determined by the Panchayatdars by him as the family head and that it was only a partition deed. The District Registrar feeling a doubt about the nature of the document referred it to the Board of Revenue. The Board of Revenue, after obtaining the opinion of the Government Pleader, came to the conclusion that the document was settlement deed. In pursuance of the opinion of the Board of Revenue, the District Registrar, construed the document as settlement and levied a deficit stamp duty of Rs. 2,520 and penalty of Rs. 5. Aggrieved by this, the respondent has preferred an appeal to the Board. The Board decided to refer the case to this Court under Section 57 of the Act with the following question:--
"Whether the document dated 15-2-1970 executed by the respondent purporting to be a partition deed is really a partition deed as defined under Section 2(15) of the Stamp Act, or a settlement deed under Section 2 of the Stamp Act." The document in question was executed by Lakshmanasami Chettiar in favour of his daughters. It states that he was partitioning his ancestral as well as his self-acquired properties between the daughters. After mentioning the properties in separate schedules the document recites that the daughters would be entitled, from the date of the execution of the partition deed, to enjoy the properties absolutely, paying kist etc., and that the parties had taken possession that date. It further recited that no share was given to the son, as sufficient properties have been given go him. It also mentioned that the other properties belonging to the family were not divided.
2. It may be noted that the document recites that that the properties belonged to Lakshmanaswami Chettiar ancestrally and by self-acquisition. Nowhere in the document any right to the daughters or their being co-owners is mentioned. On the other hand, the document specifically recites each sharer will become entitled to their share on the date of the execution and be in possession from that date. As the daughters having had no right to the properties, they cannot be called as co-owners on the date of the document, and, therefore, there could be no partition, but only a settlement. Section 2(15) of the Stamp Act defines 'instrument of partition' meaning any instrument whereby co-owners of any property divide or agree to divide such property in severalty. There is no whisper in the instrument in question hat the daughters are co-owners or have any interest in the property. On the other hand, the document fits in which the definition of 'settlement', contained in Section 2(24)(b), which runs as follows:
"(24). "Settlement' means any non-testamentary disposition in writing, of moveable or immovable property,
made--(a)...............(b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him." The document in question is clearly meant by Lakshmanaswami Chettiar for the purpose of providing for his daughters. The learned counsel for the respondent submitted that the document should not be construed as a settlement, should not be construed as a settlement, for, Lakshmianaswami Chettiar has explained the purport of the document by an affidavit which he has filed. We have been taken through the affidavit, and in our opinion, it does not improve the matter. The affidavit states in paragraph 1 that the properties mentioned in the partition deed were in common enjoyed by himself and his daughters. There is no mention in the document in question that the properties were in common enjoyment. Subparagraph (b) makes it very clear that the properties were either ancestral or the self-acquisitions of Lakshmanan Chettiar and, therefore, the daughters have no right and cannot claim as co-owners. There could, therefore, be difficulty in holding that the document is only a settlement and was rightly decided as such by the Board of Revenue.
3. The learned counsel relied on a decision reported in Venkatappa v. Musal, AIR 1934 Mad 204. Strong reliance was placed on the observation of the Bench at page 206, where it was stated--
"Even if they are not really co-owners in the eye of law, still if they purport to be co-owners and if a document of this kind is executed in that capacity, it would come within the definition of an instrument of partition."
That case related to a division between two persons. Gurram Musal Naidu and Gurram Pedda Venkatappa Naidu. The parties were related, Gurram Venkatappa Naidu being the first wife's son of Musal Naidu. The document recited that they have settled their shares in the presence of mediators and concluded that they have partitioned all the properties in Chittoor taluk, except those properties in Karvetnagar. The Court, on a consideration of the document, found--
'They very fact of the reference to the properties as those in which the three persons have certain shares indicates that they purport at least to deal with them as co-owner".
The facts stated would show that the document was undoubtedly executed by co-owners. But this decision will not apply to the facts of this case. An earlier case reported in Reference from the Board of Revenue under Section 46 of the Indian Stamp Act, 1879, (1889) ILR 12 Mad 198, was also relied on. In that case a mother died leaving property to two daughters who enjoyed it jointly; one daughter died and her husband quarrelled with the surviving daughter about the property; to stop such quarrelling, a division of the property was made between the surviving daughter and the deceased daughter's husband, which was evidenced by two documents. In the circumstances, the Court held that though the documents were styled as release deeds, they were really instruments of partition. This decision also is not applicable to the facts of this case for admittedly the division in that case was between two persons who were entitled to a share in the property which was inherited from a common person. We are satisfied that the Revenue was right in holding that the document in question is a settlement deed and not a partition deed. The reference is answered accordingly.
4. Reference answered accordingly.