Board of Revenue, Madras vs Moideen Rowther and others

Rajamannar, C.J.—This is a reference under S. 57, Stamp Act, by the Board of Revenue. One Moideen Rowther filed a suit for partition,

original suit No. 23 of 1951, in the Court of the Subordinate Judge of South Malabar, at Palghat, against his brothers. The parties entered into a

compromise and put into Court a memorandum of compromise and prayed that the Court may be pleased to pass a decree in terms thereof.

A decree was accordingly passed, but as it was a decree for partition, the parties were called upon to produce the stamps required for drawing up

the final decree. Though the stamp duty amounted to Rs. 1747-8-0, stamps only of the value of Rs. 90 were produced. The learned Subordinate

Judge drew up the final decree on the insufficient stamp papers produced by the parties and then purported to impound the same under S. 33 (1)

of the Stamp Act and forwarded it to the Sub-Collector, Palghat, under S. 38 of the Act.

In his letter forwarding the decree, the learned Judge stated that it was being forwarded it to the Sub-Collector for collecting the deficit, scamp

duty and penalty from the parties who had defaulted to produce the necessary stamp papers. The Sub-Collector, Palghat, levied a penalty of Rs.

5,000 in addition to the stamp duty of Rs. 1657-8-0, under S. 40 (1) (b) of the Act, On appeal, the Collector confirmed the order of the Sub-

Collector but reduced the penalty to twice the duty payable.

The parties filed a revision petition to the Board of Revenue against the order of the Collector. They contended on the merits that the amount of

stamp duty levied was incorrect. They also raised the question of jurisdiction. They contended that the Subordinate Judge had. no power to draft

the final decree in the circumstances and to impound it, and that the provisions of S. 33 of the Act were erroneously invoked.

The parties also prayed that a reference may be made to this Court if necessary. The Board of Revenue held that the stamp duty had been

correctly calculated. The Board was also of the opinion that the action of the Subordinate Judge in impounding the instrument of the ground that it

was not duly stamped was correct and legal since the instrument was produced or came before him in the performance of his functions.

They, however, considered that the question whether the learned Subordinate Judge, on the failure of the parties to furnish the requisite stamps,

would have the power to draw up a final decree for partition, was not free from difficulty and, it was necessary to obtain an. authoritative decision

on the point from this Court. The Board therefore have referred the following two questions to this Court for decision,

(1) Whether the learned Subordinate Judge of South Malabar, on the failure of the parties in this case to furnish the requisite stamps, had the

power to draw up the decree for partition?

(2) Whether the learned Subordinate Judge can impound the decree for partition drawn up by him under S. 33 of the Stamp Act?

There can be no doubt that a final decree for partition passed by a civil Court is an instrument of partition as defined in cl. (15) of S. 2, Stamp Act.

It follows that such a decree can only be engrossed on stamp papers of sufficient value. It was held in - ''Jotindra Mohan Tagore v. Bejoy Chand

Mahatap'', 32 Cal 483 (A), that a decree for partition to be operative must be engrossed on stamp paper, as required by the Stamp Act, and until

the Judge signs the decree so engrossed, it cannot be said that the suit has terminated.

In Pandivi Satyanandam and Others Vs. Paramkusam Nammayya and Another, , this decision was followed by a Division Bench of this Court.

The learned Judges in that case observed:

It is well settled that a final decree for partition has no existence as a decree until it is engrossed on the proper non-judicial stamp paper; till that"" is

done the suit is pending.

The question is if the parties do not furnish stamp papers of the requisite value on which the decree could be engrossed, whether the Court could

proceed to draw up the decree on unstamped paper or on stamp paper of insufficient value? It is only if the Court has power to follow this course

that the next question arises whether having thus drawn up the decree the Court could impound it under S. 33 of the Act and forward it to the

revenue authority for further action by way of collection of the proper stamp and such penalty as may be fixed.

The learned Government Pleader drew our attention to R. 12 of Chapter 3 of Part II of the Civil Rules of Practice. The chapter contains rules

relating to partition suits under the Code and the Partition Act of 1893. The rule runs thus:

Pinal decree: (1) the final decree shall in all cases specify the several portions of the joint property assigned to the several parties as their

respective shares.

(2) The decree in Partition suits shall be engrossed on non-judicial stamp paper as provided by Art. 45, Schedule I of Act II of 1899 as amended

by Art. 38 of Schedule I of Madras Act VI of 1922.

(3) On the failure of the party in whose favour the order is made to produce the necessary non-judicial stamp paper within the time fixed or

granted by the Court, the Court shall have the decree drawn up on unstamped paper and deal with it as an instrument within the operation of

Chapter IV, Stamp Act II of 1399 and send the unstamped decree to the Collector for realisation of the stamp duty under S. 48 of the Stamp Act

and return of the decree, duly stamped, to the Court passing the decree with a certificate, by endorsement thereon that the proper stamp duty has

been collected.

Undoubtedly, sub-rule (3) of the above rule enables the Court to draw up the decree on unstamped paper and then deal with it as an instrument

within the operation of Chapter IV of the Act and send it to the Collector for realisation of the stamp duty under S. 48 of the Act. The validity of

this sub-rule has, however, been impugned.

We have referred to the P. Dis. No. 237 of 1928 proceedings of the High Court in pursuance of which this sub-rule was added in 1928. This

Court purported to make that sub-rule under the provisions of S. 122, C. P. C. That section enables the Court from time to time, after previous

publication, to make rules regulating its own procedure and the procedure of the Civil Courts subject to its superintendence.

It appears to us to be very doubtful if the sub-rule in question can be said to relate to a procedure of the Court. In so far as sub-rule (2) directs the

decree in a partition suit to be engrossed on non-judicial stamp paper, no exception can be taken, not because it relates to procedure, but because

it states the effect of the provisions of the Stamp Act. If the parties do not furnish the Court with stamp papers of sufficient value, the Court can

certainly refuse to draw up the final decree and sign it.

The parties run the risk of the decree not being signed and issued. For instance, a party may not be able to enforce any of the terms of the decree

by execution because a valid decree is essential for execution. In - Inturi China Venkatappa Vs. Inturi Peda Venkatappa and Others, it was held

that before a decree for partition could be executed the holder must pay the stamp duty required by Art. 45 , Stamp Act, and have the decree

drawn up on non-judicial stamp paper.

But if the parties choose to take that risk & do not furnish the stamp papers, we do not think that the Court has power to draw up a decree on

unstamped paper and sign it. That will mean that the Court is doing an obviously wrong thing. A Court is precluded from drawing up a final decree

for partition on unstamped paper. Somayya J. in - Ittoli Moidin Koya''s son Koyatti and Others Vs. Imbichi Koya and Others, held that it may be

open to the parties to approach the Court which passed the decree and to request the Court to pass a final decree after supplying the necessary

stamp papers at any time, because as pointed out in 32 Cal 483 (A), the suit must be deemed to be pending.

Be that as it may, the ''question which falls for our decision on this reference is whether the Court itself can bring into existence an unstamped

decree and then proceed to impound it. In our opinion it is too much of a strain on the language of S. 33 (1) of the Act to say that the decree which

the Court draws up and signs is produced or comes before it in the performance of its functions. It is equally inappropriate to speak of such an

instrument as appearing to the Judge to be not duly stamped. The Judge knew even when he drew up the document that it was not duly stamped.

One can at least understand a Judge drawing up a decree on unstamped paper & signing it, and when such a decree is produced in some other

proceeding or even in the same proceeding in execution of the decree, the judicial officer before whom it is produced (it may be the same Judge

who passed the decree) can impound it as not duly stamped under S. 33 (1) of the Act. But we think that the Court cannot itself draw up an

invalid document and then take action consequent on its invalidity.

There is no provision in the Stamp Act which enables a Court to adopt the procedure indicated in R. 12 (3) above said. Section 122, Civil P.

C. will not cover such a rule. In the absence of an express statutory provision to that effect we hold that a Court cannot make a party liable to

stamp duty and penalty for omission to furnish stamp papers to enable the Court to draw up a valid decree for partition. Rule 12. sub-rule (3)

above mentioned is, in our opinion, ''ultra vires''.

Our answers to the two questions are as follows: (1) On the failure of the parties to furnish the requisite stamps the learned Subordinate Judge

had no power to draw up the decree for partition. (2) It follows from the above answer that the learned Subordinate Judge cannot impound under

S. 33, Stamp Act, the decree so drawn up.