JUDGMENT S. Shamsul Hasan, J : This is an appeal by the defendants first party in a suit for partition. 2. The case of the plaintiff-respondent no.1 is that she is entitled to a share in the estate of Motilal Choudhary, being his daughter entitled to inherit his estate along with his sons. The case of the defendants however is tha1 Motilal Choudhary had by an instrument partitioned the property between himself and his two sons in the year 1952 and consequently the extent of the claim of tile plaintiff would be greatly dismissed and she is not entitled to any share in the property already partitioned and handed over to the defendants. The sheet anchor of the claim of the defendants-appellants is a document described by the defendants as an unregistered memorandum of an earlier partition between the defendants and their father, but the same is described by the plaintiff as a partition deed, requiring registration. It is common ground that this deed was not registered nor was stamp duty paid as required by the Indian Stamp Act, 1899. 3. The trial court impounded this document under section 33 of the Indian Stamp Act, and directed the defendants to pay stamp duty. The defendants contended that since the document is only a memorandum of earlier partition and the partition itself was not effected by it, the document was not required to be registered or stamped. On an interpretation of the document the court found the document to be a deed of partition and, al stated above, impounded the same. 4. The appellate Court also upheld the finding of the trial Court on this question and negatived the interpretation of the document made by the defendant-appellants. It also afforded an opportunity to the appellants to pay stamp duty which opportunity was not availed of in view of the interpretation of the document made by the appellants. 5. Initially, the question involved in this appeal was the interpretation of the document described as memorandum by the defendant-appellants and deed of partition by the plaintiff-respondent and further that if it held to be a deed of partition requiring registration and payment of stamp duty, thus resulting, in absence of such registration and payment of stamp duty being impounded, the court could direct the appellants to pay stamp duty and thereby allow the document to be used at least for collateral purpose. It may be repeated that the appellants throughout insisted on contesting the lis on the basis of their interpretation of the document and asserting that registration and payment of stamp duty was not required. 6. In this court, however, during the hearing of the second appeal, after it was referred to larger Bench Mr. Rama Kant Verma appearing for the appellants did not press the interpretation pot on the document by the defendant-appellants and desired us to proceed on the footing that it was a deed requiring registration and payment of stamp duty. He, therefore, asserted that this court while hearing an appeal under section 100 of the Code of Civil Procedure (in short 'the Code’) can also allow the appellants to pay stamp duty etc. The list aspect of the matter on being constested by Mr. S.C. Ghose really became the contentious issue and we wore thus called upon to decide firstly whether payment of stamp duty etc, could be directed by this Court while hearing an appeal under section 100 of the Code and secondly on that being done the legal extent to which the document could be utilized. The requirement to pay stamp duty etc. emerges on the impounding of a document under section 33 of the Indian Stamp Act, 1899 (in short, 'the 1899 Act'). In other word, a court impounding a document is entitled to direct the payment of stamp duty etc. as required by the appropriate law. 7. It may be stated at the outset that there is no manner of doubt that the High Court under section 33(2) of the 1899 Act, has power to impound a document and thereafter under section 35 can direct payment of stamp duty etc. 8. The issue, however, is complicated by the fact that when no action under section 35 of the 1899 Act, is desired to be taken at the stage of an appeal from the appellate decree in the High Court when action under section 33 was taken by the trial court, In other words, the document being impounded by the trial court can the High Court direct payment of stamp duty etc. being ignored by tile appellants at tile trial stage in an appeal under section 100 of the Code, thereby permitting compliance of the order of the trial court. Mr. Ghose submitted that the High Court cannot do so. being ignored by tile appellants at tile trial stage in an appeal under section 100 of the Code, thereby permitting compliance of the order of the trial court. Mr. Ghose submitted that the High Court cannot do so. He fortified his submissions by two decisions i.e. Lakshmandas Raghunathdas v. Rambhau Mansaram and Champabaty v. Bibijan. The former decision related to the India Stamp Act, 1879, and the instant case is covered by the 1899 Act. Thus, this decision has no application to the instant case. This apart, in that decision the court refused to allow the appellant in second appeal to pay stamp duty and penalty on a document impounded in the trial court on the ground that there is nothing to indicate that no opportunity was given to the appellant to make such payment in the first appellate court based on the provisions of the 1879 Act, the contents where of are not before this court. In the present 1899 Act, power to impound a document is even available to the High Court without any fetters. In other words, this could be done even in an appeal under section 100 of the Code. In my view, therefore, the ratio of the case of Lakshmandas Raghunathdas (supra) can no longer be applicable to the instant case. The question whether the direction to pay stamp duty is a point of law or not, as envisaged by section 100 of the Code, is immaterial in view of the powers vested by section 33 of the 1899 Act. Similarly, baled on the Stamp Act, 1869, the Calcutta High Court has held in the case of Champabaty (Supra) that the appellate court has no power to issue direction to pay stamp duty and penalty when the party has not utilised this opportunity available in the trial court. This decision, like the earlier Bombay decision, debars any appellate court from accepting stamp duty and penalty. For the reasons already stated in regard to Bombay case this decision also, in my view can have no application, more so because a restriction is even placed on the first appellate court. This decision, like the earlier Bombay decision, debars any appellate court from accepting stamp duty and penalty. For the reasons already stated in regard to Bombay case this decision also, in my view can have no application, more so because a restriction is even placed on the first appellate court. Since the High Court has power under section 33 to impound a document and issue direction under section 35 I do not see any reason why it cannot direct compliance of the direction given by the trial court under section 35 after that court had taken steps under section 33 of the 1899 Act. I have, therefore, no hesitation in holding that if a document is impounded by the trial court and the party contests on the basis of the interpretation of the document that such action is not warranted and it fails in the ultimate stage, it can take advantage of the earlier direction of the trial court and pay stamp duty etc, as demanded by the trial court in the appellate court even at the stage of an appeal under section 100 the Code. 9. The question as to how the document will be utilised by the party can only be gone into after the stamp duty etc. required by law is paid by the party concerned. 10. I, therefore, in view of my finding that the defendant-appellants can pay stamp duty etc. as required by section 35 of the 1899 Act, direct them to pay the required stamp duty etc. as directed by the trial court. In this court within one month from today, failing which the second appeal will stand dismissed without further reference to the Bench If this order ill complied with, the second appeal will again be listed before an appropriate bench for disposal in accordance with law. I agree. Appeal dismissed.