The Chief Controlling Revenue Authority, Board of Revenue vs Jagadambal and V. Chinmayananda Reddiar

P.S. Kailasam, Officiating C.J.

This case is referred u/s 57(1) of the Indian Stamp Act, by the Chief Controlling Revenue Authority, Board of Revenue, Madras. The first

respondent, Jagadambal is the first wife of Srinivasa Reddiar. Srinivasa Reddiar executed a Will on 2nd October, 1941 bequeathing the properties

mentioned in the Will to the first respondent-first wife and stating that she should administer them and pay the debts incurred by him by selling the

properties and that out of what remained after liquidating the debts, the properties should be enjoyed by the second respondent after the death of

the first respondent. Srinivasa, Reddiar died, and there were disputes as to their rights under the Will. There was a compromise, and the

respondents executed a document on 5th December, 1969, by which the properties described in Schedule A, were allotted to the share of the first

respondent and the properties described in Schedule B were allotted to the second respondent who would be entitled to absolute rights over the

properties so allotted to him and the first respondent would be entitled only to a life estate in the properties allotted to her. When, the document

was presented for registration before the Sub-Registrar, Mannargudi, as a partition deed chargeable to stamp duty under Article 45 of the I

Schedule to the Indian Stamp Act, he impounded it and referred the matter to the District Registrar. The District Registrar construed the document

as a settlement deed and not a partition deed and charged an additional stamp duty of Rs. 1,790 and a penalty of Rs. 5. The respondents filed an

appeal to the Board of Revenue and the Board of Revenue confirmed the view of the District Registrar holding that the document was a settlement

deed. Aggrieved by the order of the Board of Revenue, the respondents filed a writ petition before this Court, Writ Petition No. 3254 of 1971,

and this Court directed the Board on 1st August, 1973 to refer the matter to this Court u/s 57(1) of the Indian Stamp Act. Thus, the Board of

Revenue has referred the following point to this Court:

Whether the document No. 8 of 1970, of the Sub-Registrar''s Office Mannargudi, dated 5th December, 1969 executed by the first and the second

respondents by which the first and second respondents have agreed to take the properties cited in the said document, other-wise than with

reference to the mode of devolution contemplated under the will executed by Srinivasa Reddiar dated 2nd October, 1941, is a partition chargeable

under Article 45 of Schedule I of Indian Stamp Act, or a deed of settlement chargeable under Article 58-A of the Indian Stamp Act, or any other

Article under the Act.

The document in question, after reciting the terms of the Will, which provides that A and B schedule properties therein should be enjoyed by the

first respondent for her lifetime and would vest with the second respondent after her lifetime, recites that there were disputes between the two

respondents after the death of Srinivasa Reddiar and the matter was settled by the well-wishers and that the A Schedule properties were allotted

to the first respondent to be enjoyed for her lifetime and would vest in the second respondent after her lifetime find the B Schedule properties were

allotted absolutely to the second respondent.

It was contended, or behalf of the Revenue that by this document the second respondent became entitled to B schedule properties immediately

and thereby acquired more rights than otherwise given to him under the will. According to the Revenue, this amounted only to a settlement. That it

cannot be a settlement, is very clear. '' Settlement'' is defined u/s 2(24) of the Stamp-Act, as a non-testamentary disposition in writing of moveable

or immovable property made (a) in consideration. of marriage; (b) for the purpose of distributing property of the settlor among his family or those

for whom he desires to provide, or for the purpose of providing for some person dependent on him; or (c) for any religious or charitable purpose.

It is obvious that the document was not executed for any of the purposes mentioned in Section 2 (24) of the Act, and, therefore, cannot be a

settlement. The question is whether it is an instrument of partition as defined u/s 2(15) as meaning any instrument whereby co-owners of any

property divide or agree to divide such property in severalty. The argument advanced on behalf of the Revenue is that the second respondent was

not entitled to any immediate right in the properties at the time when the document was executed and, therefore, he cannot be classified as a co-

owner. We are unable to accept this contention, for, Section 5 of the Transfer of Property Act, states that ''transfer of property'' means an act by

which a living person conveys property, in present or in future, to one or more other living persons. ''Property'', therefore includes a property In

future, i.e., the person with a vested interest is also owner of the property along with the limited owner, who will also be an owner however limited

her rights may be as between these two persons. They need not be absolute owners of the entire property or any portion of it. Partition is possible

between two co-owners who may not have absolute or equal rights. Though Section 5 of the Transfer of Property Act, relates to transfer inter

vivos of property, including the future interest by a conveyance, it is equally applicable to wills also. In this case, it may be noted that the document

in question was executed in settlement of disputes between the two parties. We do not see any difficulty in holding that this document was

executed in settlement of the disputes between the two persons who are entitled to the same properties, who agreed to divide them amongst

themselves in a particular manner. We are satisfied that the document in question is only a partition and we answer the reference accordingly.