AI Structured Summary
Not yet generated for this judgment
Judgment
Rajamannar, C.J.—This is a reference under S. 57 of the 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 Palehal, 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 at it was (sic) decree for partition, the parties were called upon to produce the at stamp required
for drawing up the (sic) decree. Though the stamp (sic) Amounted to Rs. 1747-8-0, stamps (sic) of the value of Rs. 90 were (sic) 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 for wording the decree, the
learned Judge stated that it was being forwarded to the Sub Collector for collecting the deficit stamp 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 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 on the ground that it was not
duty stamped was correct and legal,.since the instrument was produced or came before him in the performance of his functions. They how very,
considered that the question far heather the learned Subordinate (sic) on the failure of the parties to (sic) the requisite stamps, would (sic) the
power to draw up a final (sic) for partition, was not free from (sic) and, it was necessary to (sic) an authoritative decision on (sic) from this Court.
The Board (sic) have referred the following questions to this Court for decision
(1)(sic) the learned Subordinate (sic) 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. 88 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 of the
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 82 cal. 483 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 to engrossed, it cannot be said that the suit has terminated. In Satyanandan v. Nammayya AIR 1968 Mad. 857:47 L.
W. 51, 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 jailed 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 draw. 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 duty 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 the partition suits under the Code and the Partition Act of 1893. The rule runs thus
:
Final decree (1) The final decree shall in all cases (sic) the Several portions of the joint property (sic) to the several parties as their respectively
(sic).
(2) The decree in partition suits shall be engrossed on non-judicial stamp paper as provided by Art. 45, Schedule 1 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 favors 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 of
the Indian Stamp Act II of 1899 and send the unstamped decree to the Collector for realization of the stamp duty under S. 48 of the Stamp Act
and return the decree, duly stamped, to the Court passing the decree with a certificate, by endorsement there on that the proper stamp duty has
been collected.
Undoubtedly, Sub-R. (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 realization 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-R. (2) directs the decree in a partition suit to be engrossed on no 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
Venkatappa v. Venkatappa I. L. R. 1944 Mad. 266=(sic) it was held that before a decree for partition could be executed the holder must pay the
stamp duty required by Art. 45 of the Indian Stamp Act and have the decree drawn up on non-judicial stamp paper. But if the parties choose to
take that risk and 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. 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 Jotindra Mohan Tagore v. Bejoy Chand Mahatap 82 Cal. 483.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 a peak 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 any stamped paper and signing it, and when such a decree is produced (sic) some
other proceeding or even in (sic) same proceeding in execution of (sic) decree, the judicial officer (sic) whom it is produced (it may be (sic) same
Judge who passed the (sic) can impound it as not duly Stamp under S. 33 (1) of the Act. B think that the Court cannot (sic) draw up an invalid
document (sic) 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. S 122 of the CPC 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. R. 12. Sub-R. (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 of the Stamp Act, the decree so drawn up.