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2024 DIGILAW 2365 (MAD)

S. Karthikeyini v. Selvaranga Mudaliar

2024-10-14

N.SESHASAYEE

body2024
JUDGMENT : N. SESHASAYEE, J. 1. On 21.09.2021, a final decree for partition came to be passed on the basis of memo of compromise filed by the parties. As is required, this final decree has to be engrossed in non-judicial stamp (henceforth would be referred to as NJS) paper. The plaintiffs have paid NJS for the proportionate value of the properties that came to be allotted to them under the final decree. The Registry however, required the plaintiffs to deposit the NJS for the entire value of all the properties in relation to which the final decree was passed. In other words, the sharers who have been allotted properties proportionate to the share as declared in the preliminary decree face an obligation to pay for the NJS for the value of the property allotted to other sharers as well. The plaintiffs resisted the objections of the Registry and required it to place the matter before this Court. That's how this matter came to be posted before this court. 2. On 21.02.2024, the case was posted before the court for hearing. Mr. Nagu Sah, the learned counsel for plaintiffs was heard briefly. It then came to light that there is a practice in vogue in the original side of this court where the final decree in a suit for partition will be drawn up only when NJS is deposited for the entire value of the properties pertaining to which final decree is passed. This would imply that if anyone is anxious to secure his property allotted to him in the final decree, then unless other parties share a similar anxiety and pay for the NJS for the respective properties allotted to them, the former will be denied the right to enjoy the benefit obtained under the final decree proceedings. The solution which the Registry has is plain and simple: “If you are anxious to get a final decree for you, pay for all.” 3. Since the issue is of seminal significance this court appointed Mr. M.S. Krishnan and Mr. V. Raghavachari, both senior counsel with substantial experience in civil law, as amicus curiae, to assist this court. 4. Heard Mr. Nagu Sah, learned counsel appearing for plaintiffs and, the two amicus curiae which this court had appointed. Since the issue is of seminal significance this court appointed Mr. M.S. Krishnan and Mr. V. Raghavachari, both senior counsel with substantial experience in civil law, as amicus curiae, to assist this court. 4. Heard Mr. Nagu Sah, learned counsel appearing for plaintiffs and, the two amicus curiae which this court had appointed. The issue revolves around an understanding of the true import of Rule 12 of Chapter III of Part II of Civil Rules of Practice (which this court had framed in exercise of its powers under section 122 CPC), Article 45 read with Section 29(g) of the Stamp Act alongside Order XXIV Rule 12 of the Original Side Rules alongside S.O. 604 of the High Court Standing Order which deals with drafting of decree in the Original Side of the Court. 5. It is settled that no final decree for partition will be effective till it is engrossed in the NJS. And, there is no statutory provision prescribing time limit for furnishing the NJS for engrossing the final decree. [See: Doctor Chiranjee Lal (Dead) by LRs. vs. Hari Dass (Dead) LRs. (2005) 10 SCC 746]. However, in terms of the dictum in Ram Bachan Roy and Others vs. Ram Udar Roy and Others, (2006) 9 SCC 446 . NJS might have to be deposited within 12 years from the passing of the final decree, since a final decree becomes executable from the date of the decree and not from the date on which it is engrossed in NJS, vide the dictum in Bimal Kumar and Another vs. Shakuntala Devi and Others, (2012) 3 SCC 548 since under Article 136 of the Limitation Act, 1963, the outer time limit for execution of any decree is 12 years from the date of the decree. 6. The issue here however, is not about how and when a final decree will become effective and executable, but about ascertaining if there is a statutory mandate authorising the Registry to demand a party to a final decree to deposit the NJS for all where he is only interested to make effective the final decree as concerning the properties allotted to him. 7.1 The need to engross the final decree in NJS for it to become effective is only intended to bring parity in payment of stamp duty with those who effect partition through a registered instrument consensually. 7.1 The need to engross the final decree in NJS for it to become effective is only intended to bring parity in payment of stamp duty with those who effect partition through a registered instrument consensually. Whether partition is effected through a contract between the parties or through a decree of the court, State should not lose its revenue. Therefore, need to pay NJS for engrossing the final decree is founded on public policy. While Order XX CPC and Order XXIV Rule 12 of the Original Side Rules of this Court read alongside S.O.604 of the High Court Standing Order provide for passing a final decree, it is silent about who has to pay the stamp duty for engrossing the final decree in NJS and also the extent to which one must pay. This is provided under Sec.29 of the Stamp Act. Contextually Sec.29(g) is relevant. It reads: Sec. 29: Duties by whom payable: In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne: (a) to (e)............ (g) in the case of an instrument of partition - by the parties thereto in proportion to their respective shares in the whole property partitioned, or when the partition is made in execution of an order passed by a revenue authority or civil Court or arbitrator, in such proportion as such authority, Court or arbitrator directs. This provision in essence requires a party to the partition deed to pay stamp duty proportionate to their respective shares in the whole property. The first part of Section 29(g) makes a positive statement that a party to the partition deed need to pay stamp duty only to the extent of the share allotted to him and not on the whole instrument. The second part of Sec. 29(g) however provides that where the properties are allotted inter alia under the decree of the court, then stamp duty ought to be paid in the manner the court directs. This is a substantive piece of legislation, and it nowhere feeds the theory of the Registry that one should pay NJS for all, if others are unwilling to pay NJS for the properties allotted to them. 7.2. The need to pay NJS finds a place in Part II Chapter III Rule 12 of Civil Rules of Practice. It reads: “12. This is a substantive piece of legislation, and it nowhere feeds the theory of the Registry that one should pay NJS for all, if others are unwilling to pay NJS for the properties allotted to them. 7.2. The need to pay NJS finds a place in Part II Chapter III Rule 12 of Civil Rules of Practice. It reads: “12. Final decree: (1) The final decree shall in cases specify the several portions of the joint property assigned to the several parties as their respective shares. (2) The decree in partition suits shall be engrossed on non-judicial stamp paper as provided by Article 45, Schedule I of Act II of 1899 as amended by Article 38 of Schedule I of Madras Act VI of 1922. (3) On the failure of the party in whose favour 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 section 48 of the Stamp Act and return of the decree, duly stamped, to the court passing the decree with a certificate, by endorsement thereon that the proper stamp duty has been collected.” While Rule 12(2) requires that stamp duty must be paid in accordance with Article 45 of the Stamp Act, Rule 12(3) enables the court to draw up a final decree even on a plain paper in cases where NJS is not paid and to impound it under Sec.33 of the Stamp Act. 8. The validity of an action done pursuant to Rule 12(3) came up for consideration before a Full bench of this Court in Board of Revenue of Madras, the Chief Controlling Revenue Authority by its Secretary vs. Moideen Rowther and Others, AIR 1956 Mad 207 . There the Court was confronted with a question, can a Subordinate Judge draft a final decree without payment of NJS and then impound it under Sec.33 of the Stamp Act? The Full Bench answered it in the negative, and indeed proceeded to hold Rule 12(3) ultra vires. There the Court was confronted with a question, can a Subordinate Judge draft a final decree without payment of NJS and then impound it under Sec.33 of the Stamp Act? The Full Bench answered it in the negative, and indeed proceeded to hold Rule 12(3) ultra vires. This decision, however, is not an authority for the point as to whether a party who wants to have a final decree drawn up as concerning the properties allotted to him in the final decree should pay NJS for all the allottees. This, as stated earlier falls within the realm of Sec.29(g) read with Article 45 of the Stamp Act and it is untouched. 9. Sec.29(g) of the Stamp Act is a substantive provision which lists the category of persons who are liable to pay stamp duty whereas Article 45 deals with mode of computing the stamp duty so payable. Inasmuch as Sec.29(g) does not enable payment of NJS by one for all for drawing up the final decree, the Registry is in palpable error in trying to protect the revenue of the state more than what the statute contemplates. 10. A final decree for partition drawn up in non-judicial stamp papers in essence is a title document that vests absolute and exclusive ownership in a party vis-a-vis the properties allotted to him. In a certain sense it could be equated to a sale certificate issued by an Execution Court. Therefore, what is the difficulty in conferring exclusive title on a party who pays the requisite NJS for the properties allotted to him by drawing up a final decree separately? Where in law it is mandated that a final decree must be engrossed for all the properties in one go? Like issuing a sale certificate for the property sold, is it difficult to conceive drawing up a final decree for each of the parties separately as and when NJS are paid by them? That a final decree must be drawn up in one go appears more as a procedural invention evolved perhaps for the convenience of the Registry, but it must be said that it is founded on a faulty conceptualisation as it runs counter to what Sec.29(g) stipulates. 11. That drawing up of multiple final decrees separately for different parties to it is recognised in Shankar Balwant Lokhande (Dead) by LRs. vs. Chandrakant Shankar Lokhande and Another, (1995) 3 SCC 413 . 11. That drawing up of multiple final decrees separately for different parties to it is recognised in Shankar Balwant Lokhande (Dead) by LRs. vs. Chandrakant Shankar Lokhande and Another, (1995) 3 SCC 413 . The issue involved in that case was slightly different, but what the Supreme Court has observed is of contextual relevance and significance. In that case final decree for partition was passed with 5/6th of the properties going to the share of one party, and remaining 1/6th of the properties going to the other party. The allottee of properties for 1/6th share paid NJS for his share but the allottees of 5/6th share of property did not pay it. And due to this reason no final decree was drawn up as regards 5/6th share. Later when it was sought to be paid, the same came to be dismissed by the court below as barred by the limitation. It is in this context the court observed: “7....................It is settled law that more than one final decree can be passed. With the passing of the final decree in respect of the share of the first respondent, the rights of the parties in respect of other properties have not been crystallized and no final decree dividing the properties by metes and bounds was passed nor any application was made to divide the properties in terms of the shares of the parties declared in the preliminary decree.” 12.1. How illogical it is to demand a party to pay for the NJS vis-a-vis the properties he is not interested in for securing his interest over the properties he has obtained under the final decree. When a co-sharer institutes a suit for partition claiming joint possession with other co-sharers, he is required to pay court fee under Sec.37(2) of the Tamil Nadu Court Fee and Suit Valuation Act, 1955, only for his share for obtaining a preliminary decree. And, if any other party is interested in having his share declared, he has to pay court fee under the same provision for his share. Therefore, when a suit for partition is instituted, law intends to facilitate the one who worries for his right and not for the rights of others. Law does not intend to fuse the rights of all the parties when they exhibit fissionary tendencies to divide the joint estate. It supports individual rights and aids individual action to secure it. Therefore, when a suit for partition is instituted, law intends to facilitate the one who worries for his right and not for the rights of others. Law does not intend to fuse the rights of all the parties when they exhibit fissionary tendencies to divide the joint estate. It supports individual rights and aids individual action to secure it. If the Registry's stands is taken to its logical end, then parties would be driven to their wits' end as they are anxious to get out of the discomfort which joint ownership has created for them. The Registry's objection creates an inter-dependency as between the parties when the Court has allowed them to enjoy what they are entitled to enjoy mutually exclusively. May not the Registry try to unite that which the Court has chosen to divide! 12.2. The unintended consequence of the objection of the Registry gets more pronounced when it is realised that it enables a party who is unwilling to grant a share to the plaintiff, to hold the interest of the latter to ransom with his unwillingness to pay for the NJS for his share. A shark rarely will glee over a fish asserting its right, and while the court rushes to protect both the fish and the shark, the Registry ensures that the shark eventually swallows the fish. In Smt. Surat Bai vs. Radha Kishan, MANU/RH/0537/1977, a Division Bench of Rajasthan High Court has held: “11. The next and the last submission that if that were the view then any one of the parties, by not supplying the requisite stamp, proportionate to his share, may withhold the drawing up of the final decree for partition indefinitely, cannot also be accepted. Under section 29 of the Stamp Act, all co-sharers are required to contribute stamp duty ratably according to their shares.” 12.3. This apart, every time, when one party pays NJS for all, it only will breed further feud between the them and breed further litigations too. That will be an anathema to the maxim interest reipublicae ut sit finis litium. A litigation involves a bit of gamble and bit of game plan, still it is a serious business both for the parties and the courts, and neither can afford another round of litigation. Life cannot become more problematic for a litigant than what he has undertaken to endure in the litigious journey. 13. A litigation involves a bit of gamble and bit of game plan, still it is a serious business both for the parties and the courts, and neither can afford another round of litigation. Life cannot become more problematic for a litigant than what he has undertaken to endure in the litigious journey. 13. The inevitable conclusion that flows as a natural inference from the above discussion is that in all cases where all the parties to a final decree do not offer to pay NJS for the respective properties allotted to them by the court in a final decree proceedings within the time stipulated, but some among those parties alone are ready to tender NJS for the properties that have been allotted to them, then the Registry is duty bound to receive NJS from those who pay it and draw a final decree only as regards the property allotted to them. It also follows that wherever larger property is divided into multiple plots in a final decree proceedings, and the court directs that such plan be made part of the final decree to be drawn up, then while drawing up the final decree for the party who pays the NJS, only the plot or plots allotted to him needs to be highlighted and must be made part of the final decree so drawn. 14. To conclude, this Court directs the plaintiffs to pay NJS for the properties allotted to them, and the Registry is directed to draw up a final decree only for the properties allotted to the plaintiffs. If there are any plan or plans attached to any such final decree, then such plan only needs to highlight the property or properties allotted to them without indicating to whom the other plots are allotted. No costs. Consequently, connected miscellaneous petitions are closed.