ORDER :- This is a revision under Section 115 C. P.C. by Seth Puran Chand defendant against the order dated 27-4-1963 of the Civil Judge of Saharanpur confirming the report of the Inspector of Stamps and thereby holding that for purposes of the Stamp Act the Arbitration agreement was an instrument of partition and it was insufficiently stamped to the extent of Rs. 2,666.56. The defendant was thereupon directed to pay the deficiency in stamp duty and also penalty to the extent of 10 times the deficiency, i.e. Rs. 29,332.16 in all. 2. "Instrument of partition" has been defined in Section 2(15) of the Stamp Act to mean "any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any Revenue authority or any Civil Court and an award by an arbitrator directing a partition." The words "divide or agree to divide" used in the above definition are of great significance and make it clear that for purposes of the Stamp Act an agreement to divide the property is also an instrument of partition Stamp duty as on an instrument of partition shall thus be payable not only on an instrument actually dividing the property among the co-owners of but also on an instrument containing an agreement among the co-owners to divide such property. 3. The term "instrument" has, however, been defined in Section 2(14) of the Stamp Act in a general manner. In fact, the definition contained therein is by way of illustration and it cannot be said to be exhaustive. The term "instrument" has been defined to include "every document by which any right or liability, is or purports to be created, transferred, limited, extended, extinguished or recorded." The use of the word "includes" makes it clear that this definition is illustrative and hence a document not strictly covered by the words reproduced above shall still be an instrument if it is of a similar nature. 4. After the execution of an arbitration agreement parties do not have the right to seek their remedy before the courts of law, nor can they have the matter amicably settled except by arbitration in accordance with the terms and conditions of the arbitration agreement. 4. After the execution of an arbitration agreement parties do not have the right to seek their remedy before the courts of law, nor can they have the matter amicably settled except by arbitration in accordance with the terms and conditions of the arbitration agreement. It is true that the parties have the right to waive the arbitration clause, by the defendant not raising any objection to the entertainment of the suit by the court of law. But in practice, I may say, invariably, the effect of an arbitration agreement is to restrict the right of the parties to enforce their legal rights. In other words, as a result of the arbitration agreement the right of the parties is limited though the right so limited is the right to seek remedy before the courts of law or to have the dispute emicably settled by other means. An arbitration agreement is, therefore, an instrument and if the instrument contains an agreement among the co-owners of the property to divide the property in severalty it would be an "instrument of partition'' for purposes of the Stamp Act. 5. Members of a co-parcenery stand in a category different from co-owners of the property; the co-parceners ceasing to be members of the Joint Hindu family, they become co-owners of the property which originally belonged to the co-parcenery. In case of a Joint Hindu family it is thus necessary that there should be disruption of the Joint family by members of the joint family becoming separate and ceasing to be members thereof. 6. There can be an agreement to divide a property only if there exists no dispute with regard to such property. In other words, the parties are in agreement as to the nature of the property and the share of the co-owners. If parties are in disagreement on any one of these points it cannot be said that there is an agreement to divide the property. For example, if it is later held that the property belonged to B and C and not to A, a mere agreement to divide the property according to the shares of the co-owners shall not be an agreement to divide that property. Agreement contemplates non-existence of disputes. 7. For example, if it is later held that the property belonged to B and C and not to A, a mere agreement to divide the property according to the shares of the co-owners shall not be an agreement to divide that property. Agreement contemplates non-existence of disputes. 7. Where there is no dispute with regard to one set of properties, an arbitration agreement containing an agreement to divide the properties shall amount to an "instrument of partition" in so far as the above properties are concerned. But in so far as the remaining properties are concerned, the document would be a mere arbitration agreement and not an "instrument of partition". 8. The arbitration agreement filed by the defendant-applicant runs as below : "Whereas Messrs. Seth Kundan Lal son of Seth Mool Raj, Seth Puran Chand and SethRajendra Lal sons of Seth Kundan Lal, caste Vaish Agarwal residents of Bijnor who constituted a Joint Hindu Family and also own agricultural land and landed property in district Ambala and whereas Seth Kundan Lal is also a partner to the extent of 1/6th of the share in the property and business known as Seth Shiv Prasad Banarsi Dass Sugar Mills Bijnor by virtue of the registered partnership deed dated 31st August, 1936. The other two members of the Joint Hindu Family viz. Seth Puran Chand and Seth Rajendra Lal claim their rights to all the above stated property as being all joint family property. And whereas Seth Rajendra Lal, a member of the joint Hindu Family desired for division of the property by serving the other two members with a notice in writing to that effect and whereas the aforesaid members of the Joint Hindu Family have found that due to family disputes they are unable to carry on their business as joint family and to continue to live as the members of the Joint Hindu family and whereas they have further agreed today to disrupt completely their joint family by partition of estate and residence (food and worship) and whereas the members mutually agree to make such division they hereby appoint Lala Bankey Lal Gupta, B.A. LL. B. of Amroha as their sole Arbitrator whose award when given will be final and binding on the members. B. of Amroha as their sole Arbitrator whose award when given will be final and binding on the members. The said arbitrator will decide the extent of the Joint family property and will assess the property personally or with the help of experts and the members and divide the joint property so decided by him in three equal parts and if desired in order to adjust the award of particular property to a particular person, lay down such conditions as he may think proper making such adjustments as necessary to equalise the share given to each member by money or property, and the said Arbitrator is hereby authorised to present and gel registered his award." 9. The first paragraph makes it clear that Seth Kundan Lal and his sons, Seth Puran Chand and Seth Rajendra Lal, had constituted a Joint Hindu family and as would appear from the succeeding words, the agricultural land and landed property in district Ambala belonged to the members of this Joint Hindu family. In other words, the agricultural land and landed property in district Ambala was Joint Hindu family property belonging to Seth Kundan Lal and his sons. The remaining part of the first paragraph of the arbitration agreement however, shows that there was a dispute with regard to the share in the partnership business known as Seth Shiv Prasad Banarsi Dass Sugar Mills. Bijnor. According to Seth Kundan Lal. he was a partner of this business in his personal capacity and the share in the Sugar Mills did not belong to the Joint Hindu family. The claim of the other members of the Joint Hindu family is to the contrary, namely, that this is also an asset belonging to the Joint Hindu Family consisting of Seth Kundan Lal and his sons The second paragraph of the arbitration agreement also shows that Seth Rajendra Lal, a member of the Joint family, had served a notice of severance from the joint status and ceased to be a member of the Joint family. The succeeding part of this paragraph further shows that there was an agreement among the father and the sons to completely disrupt their Joint family by partition of estate and residence. The succeeding part of this paragraph further shows that there was an agreement among the father and the sons to completely disrupt their Joint family by partition of estate and residence. This part of the agreement conclusively establishes that Seth Kundan Lal and his sons ceased to be members of the Joint Hindu family and thereafter they became co-owners of the properties which originally belonged to the Joint Hindu family. 10. It was thereafter mentioned in para 2 of the arbitration agreement that the members "mutually agree to make such division". The word "such" appears to be redundant, and what was meant was that the members of the Joint family agree to divide their properties. Agreement can be with regard to undisputed properties, and consequently, agreement to divide, for which stamp duty as on "instrument of partition" shall be payable, can pertain to properties which admittedly belonged to the Joint Hindu family. In case the share in the Sugar Mills belonged exclusively to Seth Kundan Lal, no question of division shall arise. But if this share is eventually held to belong to the Joint Hindu family, this shall be under the award or the decree of a court of law. For so long as there is no award or decision of a competent court or authority there is no valid and enforceable agreement to divide the property. 11. In this view of the matter the arbitration agreement was, for purposes of the Stamp Act an instrument of partition in respect of the agricultural land and landed property situate in district Ambala, and not the 1/6th share in Seth Shiv Prasad Banarsi Dass Sugar Mills, Bijnor. The share of Seth Kundan Lal and his two sons in the Joint Family Property was 1/3rd each and the stamp duty payable on the arbitration agreement would depend upon the value of the 1/3rd share in the agricultural land and landed property in district Ambala. 12. It appears that the learned Civil Judge has directed the defendant to pay deficit stamp duty and penalty also, as if the properties agreed to be divided included the share in the Sugar Mills also. The order under revision is without jurisdiction to this extent. 13. The revision is partly allowed and partly dismissed. 12. It appears that the learned Civil Judge has directed the defendant to pay deficit stamp duty and penalty also, as if the properties agreed to be divided included the share in the Sugar Mills also. The order under revision is without jurisdiction to this extent. 13. The revision is partly allowed and partly dismissed. It is hereby ordered that for purposes of the Stamp Act the arbitration agreement amounted to an instrument of partition in so far as the agricultural land and landed property in district Ambala were concerned. Stamp duty as on an instrument of partition was payable in respect of these properties, but not on the share in Seth Shiv Prasad Banarsi Dass Sugar Mills, Bijnor. The Civil Judge is directed to take further steps in accordance with the law. Costs easy. Stay order is vacated. Petition partly allowed.