G. Moulana Saheb and Another v. Sub-Registrar, Thirupathur
1995-07-11
RENGASAMY
body1995
DigiLaw.ai
Judgment : This revision is against the Checkslip issued by the learned Subordinate Judge, Thirupathur, North Arcot Ambedkar District for payment of the stamp duty for the award presented by the revision petitioner. The arbitrators were appointed at the request of the petitioners relating to their property dispute, and the arbitrators passed the award on 29. 1988 alloting properties to the parties to the award. This award was presented to the Sub-Registrar, Tirupathur for registration and the Sub-Registrar treating this document as a partition deed under Sec.2(15) of the Indian Stamp Act (hereinafter referred to as the Act), directed for payment of the necessary stamp duty on this document. Challenging this order of the Sub-Registrar, the Revision Petitioner herein filed the suit before the Subordinate Judge, Tirupathur, North Arcot Ambedkar District to set aside this order and the Subordinate Judge issued check slip for payment of the stamp duty on the document viz., the award. As against this check slip, the plaintiffs had come forward with this revision. 2. Learned counsel for the revision petitioner would contend that the award is only a direction as to the mode of revision and therefore, this document cannot be treated as a partition deed bringing it under Sec.2(15) of the Act and the lower court is not correct in issuing the check slip for the payment of stamp duty. On the other hand, learned Additional Government Pleader Mr.Swaminathan argued that in this award, the house properties have been allotted to the parties to the arbitration proceedings and when specific properties have been allotted to the sharers, it is partition deed and therefore, the order of the Subordinate Judge, Tirupathur for payment of the stamp duty is perfectly correct. Sec.2(15) of the Act reads “Instrument of Partition” means any instrument whereby coowners 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. But, the learned counsel for the revision petitioner referring to a decision of a Full Bench of this Court in Board of Revenue v. M. Swaminathan, A.I.R. 1980 Mad.
But, the learned counsel for the revision petitioner referring to a decision of a Full Bench of this Court in Board of Revenue v. M. Swaminathan, A.I.R. 1980 Mad. 97 would contend that when the award requires another document to be executed for the purpose of allotment of shares, the award cannot be an instrument of partition as defined under Sec.2(15) of the Act. In the award filed in this case clause (1) reads that D.No. 7 has to be sold by the parties Nos.2 and 3 and their sister Mohan Jabir and out of the sale consideration, Rs.One lakh has to be given to party No.3 and the balance to the father of the first party Haji Mohammed Qyasuddin Saheb and as this is only a direction, there is no allotment of D.No.7 to any if the parties to bring it as an instrument of partition, learned counsel for the revision petitioner would further argue that in clause (3), D.No.29 has been given to Mohan Jabir for which party No. 1 has to execute a document in her favour with restriction of alienation of the property and similarly in clause (5), there is a direction to execute a release deed in respect of D.No.5 by party No.2 in favour of party No.3 and as further documents have to be executed as directed in the award, the award cannot be treated as an instrument of partition. In the decision cited by the learned counsel for the revision petitioner, the question that was referred to before the Bench was whether the document in question was an agreement to partition the properties falling within the scope of Sec.2(15) of the Act. In that document which was the subject-matter of that decision, Panchayatdars had merely suggested a mode of division of the common properties and the parties themselves had voluntarily agreed to abide by the award of the Panchayatdars and had also made it clear in the document itself that suitable document would be executed in due course. Therefore, as the mode of division alone was suggested and the parties had agreed to-execute a separate document in respect of the shares allotted to them, it was considered in that case that the document in question was not an instrument of partition.
Therefore, as the mode of division alone was suggested and the parties had agreed to-execute a separate document in respect of the shares allotted to them, it was considered in that case that the document in question was not an instrument of partition. But, in this case, on a reading of the clauses in the award, we are able to see that specific items have been allotted to the sharers. The 3rd para in the award reads that the properties mentioned in the award are the family properties and the party No.l wanted to give the shares to the other parties and only for giving the shares to the other parties, the decision was made as mentioned thereunder. In clause 1 of the award there is a direction to sell D.No.7 by parties No.2 and 3 and their sister and allotment of the sale proceeds to some of the parties. Even though D.No.7 was not allotted to any of the parties, the parties have to sell this property and divide the sale proceeds between party No.3 and the father of party No.1, in the proportion given in the award. Therefore, the sale proceeds to be realised has been divided between the parties. Clause 2 reads that D.No.8 shall be allotted to party No.3. In Clause 3 D.No.29 has been allotted to Mohar Jabir. Though there is a direction that she should enjoy the property for her life time without the power of alienation. Under clause 4 D.No.30 has been allotted party No.3 and he is facilitated to renew this building with the funds allotted in clause No.l. This clause makes very clear that the owelty of Rs.one lakh has been allotted to party No.3 for the repairs of D.No.30 which has been allotted for his share. Under clause 5, D.No.5 which stands in the name of party Nos.2 and 3 is allotted to party No.3 and a release deed has been directed to be executed by party No.2 in favour of party No.3. Even though there is a direction for execution of a release deed by party No.2 in favour of party No.3, this item viz., D.No.5 is allotted to party No.3 in this award. Clause 6 relates to the direction for maintenance.
Even though there is a direction for execution of a release deed by party No.2 in favour of party No.3, this item viz., D.No.5 is allotted to party No.3 in this award. Clause 6 relates to the direction for maintenance. From the reading of the above clauses which I mentioned above, specific items have been allotted to each of the sharers and therefore, it cannot be stated that this is only a mode of division suggested to the sharers. On the other hand, specific shares have been allotted to each party including the owelty to party No.3 to compensate the share viz., D.No.30 allotted to him, as it is an old building. From the recitals, I am satisfied that this document which specifies the shares of the parties, falls within the definition of Sec.2(15) making it an instrument of partition and therefore, the lower court is perfectly right in issuing check-slip directing the revision petitioners to pay the stamp duty on the award. As I find no error in the order of the court below, the revision deserves to be dismissed and accordingly the same is dismissed. No costs. Consequently C.M.P. No.16247 of 1993 is dismissed.