Dipak Kumar Sen, J.
1. The property which is the subject-matter of this partition suit is premises No. 9, Gopi Mohon Dutta Lane, Calcutta (hereinafter referred to as the said premises). It is alleged in the plaint that one Rajendra Lal Banerjee, a Hindu governed by the Dayabhaga purchased the said premises in the benami of his wife Khanta Bala. Rajendra Lal died intestate on or about the 3rd November, 1936 leaving him surviving Khanta Bala his sole widow, his three sons Suresh Chandra, Ramesh Chandra and Satyesh Chandra and his daughter Nirmala Chakravarti.
2. Khanta Bala died on the 28th December, 1953 intestate and leaving her surviving her children the said Suresh, Ramesh and Satyesh and Nirmala,
3. Suresh died intestate in or about 20th October, 1959 leaving him surviving his sole widow and his eleven children as his heirs, heiresses and legal representatives.
4. Ramesh, died intestate and unmarried on or about the 28th January, 1972 leaving Satyesh and Nirmala as his heir and heiress.
5. Nirmala has executed a Deed of Release dated the 26th May, 1975 whereby she has relinquished all her right, title and interest in the said premises in favour of Satyesh,
6. In this background, Satyesh has filed this suit claiming declaration of shares of the parties and partition of the said premises Rani Banerjee, the defendant No. 1, is the widow of Suresh. Sunil, Sushil, Debdas, Tapan and Anup, the sons of Suresh have been impleaded as the defendants Nos. 2, 3, 4, 5 and 6. Mithu, Usha, Aparna and Mamata the unmarried daughters of Suresh, have been impleaded as the defendants Nos. 7, 8, 9 and 10. Mira Chatterjee and Juthika Chatterjee, the married daughters of Suresh, have been impleaded as the defendants Nos. 11 and 12. Nirmala has been impleaded as the defendant No. 13.
7. It is not disputed that the plaintiff has a half share in the said premises. On the basis of the Deed of Release executed by Nirmala the plaintiff is claiming another l/6th share which Nirmala inherited from Ramesh.
8. The plaintiff gave evidence In sups port of his claim. He tendered the Deed of Release dated the 26th May, 1975 executed by Nirmala which was marked as Ext. A, without any objection. The plaintiff proved the correctness of the genealogical table set out in the plaint and stated the relationship between the parties. Learned Advocate for Nirmala stated on instructions that Nirmala did acknowledge the said Deed of Release and intended that her share should go to the plaintiff.
9. The only contention on behalf of the defendants Nos. 1, 4, 5, 8 and 12 has been that the Court should not permit the plaintiff to claim the share of Nirmala in the said premises. By the Deed of Release it is contended there has not been a legal transfer or conveyance of the share of Nirmala in favour of the plaintiff. It was apparent from the said document that Nirmala had no knowledge as to her share in the said premises. In any event, as a deed of transfer the document was insufficiently stamped and could not be accepted in evidence.
10. Mr. Shyamal Sen, learned counsel for the plaintiff, cited a number of decisions and contended on the basis thereof that the deed (Ext. A) was valid deed of gift in favour of the plaintiff. The said decisions are considered in their chronological order as follows:--
The first decision is Hemendra Nath Mukerji v. Kumar Nath Roy, reported in (1908) 12 Cal WN 478. In this case a registered deed of disclaimer whereby the executants, inter alia, relinquished all their right, title and interest and claim in a property in favour of the releasee, was held to be transfer and that such transfer was complete as soon as the deed was registered.
The next decision, Subramanian Chetiar v. Revenue Divisional Officer, reported in AIR 1956 Mad 454 was cited for the proposition that an unstamped or defectively stamped document was not void but was effective from the date of its execution, though incapable of being made use of in evidence until stamped properly.
The next decision cited was Thayyil Mammo v. Kottiah Bamunni reported in : AIR1966SC337 . Here the Supreme Court considered a registered deed which recorded a surrender of proprietary rights under a prior deed in favour of some of the parties. The Supreme Court approved and applied the decision of Hemendra Nath Mukherji (supra) and held that a registered instrument, styled as release deed, releasing the right, title and interest of executant in any property in favour of the releasee for valuable consideration, might operate as a conveyance, if the document clearly disclosed and had an intention to effect a transfer. It was held further that nomenclature of the deed and the amount of stamp duty paid on it, though relevant, were not conclusive on the question of construction.
The next decision cited was Kuppu Swami v. A. S. P. A. Arumugan, reported in : 1SCR275 . In this case the Supreme Court extended the principle, laid down in Mamma's case (supra) and held that a registered instrument releasing the right, title and interest of the releasor without consideration might operate as transfer by way of a gift if the document clearly showed an intention to effect a transfer and was signed by or on behalf of the releasor and was attested by at least two witnesses. The deed which was being considered by the Supreme Court in that case showed an intention to transfer title and the operative words of the deed were held to be sufficient to convey title.
The last case cited was Guniram v. Kodai, reported in : AIR1971All434 . This decision is not of particular relevance in the instant case.
11. Learned Advocate for the defendants Nos. 1, 4, 5, 8 and 12 has contended that the recitals in the deed in the insfant case (Ext. A) shows that the executant, was only aware that she might have inherited a share in the said premises from her parents and not from her deceased brother. I am unable to accept such contention. In the recital the deaths of Rajendra, Ramesh and Suresh have been specifically recorded. The operative portion of the deed reads as follows:--
'In consideration of the said agreement and in consideration of the premises the releasor doth hereby release, surrender and, relinquish unto and in favour of the Releasee whatever right, title, interest, claim or demand the Releasor has in the said premises and This Indenture Further Witnesseth that in consideration hereinbefore stated the Releasor doth hereby disclaim, disown and relinquish and for ever discharge all and every such pretended right, title, interest, claim or demand which may now or hereafter be alleged or contended or construed.'
12. In my opinion the operative part of the deed is unambiguous and is intended to transfer whatever right, title and interest Nirmala had in the said premises in favour of the plaintiff. The document is attested by two witnesses and would operate as a deed of gift.
13. The objection as to stamp has to be considered next. In my opinion, the said document viz. Ext. 'A' having been exhibited without any objection, it is no longer open to the defendants Nos. 1, 4, 5, 8 and 12 to raise any objection as to its admissibility. Section 36 of the Indian Stamp Act, 1899 provides as follows:
'Where an instrument has been admitted in an evidence, such admission shall not accept as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.'
14. Section 61 of the Act provides for further agitation of the question of stamp by the appeal court either on its own motion or on the application of the Collector. In the instant case the document has been tendered and exhibited on the 15th June, 1977 without any objection from any of the parties and therefore Section 36 is attracted and the question cannot again be agitated in this suit.
15. However, the document ex facie has been stamped as a deed of release. Under Section 35 and other Sections of the Stamp Act the Court suo motu can take notice of the insufficiency of stamp. In that view, while permitting the deed to be tendered in evidence I direct the document to be impounded by the Registrar and to be forwarded to the Collector for adjudication of proper stamp duty.
16. There will be a decree in this suit as follows:
It is declared that the plaintiff is entitled to two-thirds share and the defendants Nos. 1 to 12 are each entitled to 1/36th share in the said premises. There will be a preliminary decree for partition. Mr. Shanti Bhusan Mukherjee, learned Advocate, is appointed the Commissioner of Partition. He will be at liberty to engage a Surveyor and Valuer for effecting the partition and will be entitled to the services of a clerk,
17. The Commissioner is directed to partition the said premises by metes and bounds in accordance with the shares declared as aforesaid and if the same is not so possible, to sell the property by public auction or private treaty as the Commissioner may decide.
18. The Commissioner will proceed expeditiously and file his return within four months from date.
19. The Commissioner and all parties to act on a signed copy of the minutes of the decree on the undertaking of the learned advocate on record to draw up, complete and file the same. Remuneration of the Commissioner will be fixed later.
20. Costs as in a partition suit.