ORDER : Krishna Rao, J. 1. By an order dated 19th September, 2024, this Court disposed of the C.S. No. 65 of 2023 on the basis of the Terms of Settlement entered between the parties dated 17th September, 2024. At the time of disposal of the suit, this Court directed to draw up the decree by making the Terms of Settlement as part of the decree. In compliance of the order passed by this Court dated 19th September, 2024 when the department was processing for drawing up of final decree, the Learned Advocate for the plaintiff and defendants have submitted their request along with the copy of the judgment passed by the Hon’ble Supreme Court in the case of Mukesh Vs. The State of Madhya Pradesh and Another dated 20th December, 2024 in Civil Appeal No. 14808 of 2024 and informed that the compromise decree does not fall under the instruments mentioned in the Schedule and that it only asserts the pre-existing rights and hence, the consent decree will not operate as conveyance as no right is transferred and the same does not require any payment of stamp duty. 2. On receipt of the said letter along with the judgment passed by the Hon’ble Supreme Court above, the matter is placed before this Court for clarification. 3. The plaintiff had filed the suit for decree for partition of the suit properties as mentioned in Schedule - A, B, C, D, E, F and G. As per the case of the plaintiff in the plaint, the plaintiff and the defendants are brothers and sons of Late Umiyashanker Chhaganlal Dave. The father of the parties during his life time owned various movable and immovable properties. The properties mentioned in Schedule - A, B, C, D, E and F are the immovable properties and Schedule “G” are movable properties. 4. During pendency of suit, all parties to the suit entered into a Terms of Settlement on 17th September, 2024, which reads as follows : “TERMS OF SETTLEMENT 1. The plaintiff and the defendants are the full blooded brothers and the only heirs and/or legal representatives of Late Umiyashanker Chhaganlal Dave and Late Shanta Ben Dave. The said Umiyashanker Chhaganlal Dave expired on 17th October, 1999 and his widow, Shanta Ben passed away on 12th April, 2011. 2. The plaintiff and the defendants are the full blooded brothers and the only heirs and/or legal representatives of Late Umiyashanker Chhaganlal Dave and Late Shanta Ben Dave. The said Umiyashanker Chhaganlal Dave expired on 17th October, 1999 and his widow, Shanta Ben passed away on 12th April, 2011. 2. Subsequent to the death of Umiyashanker Chhaganlal Dave and Shanta Ben Dave, disputes and differences arose between the plaintiff and the defendants regarding the distribution of the estate left behind by Late Umiyashanker Chhaganlal Dave, since he died intestate. 3. At such juncture, the plaintiff filed the present suit for partition of the properties, both movables and immovable, left behind by Late Umiyashanker Chhaganlal Dave, in accordance with the shares of the respective parties. 4. During the pendency of the present suit, the parties herein have arrived at an amicable settlement amongst themselves with mutual consent and covenants. 5. In view of the mutual consent and covenants, the parties do hereby agree as hereunder: A) The parties herein have amicably settled the disputes between themselves out of court. B) The plaintiff, Dakshesh Umiyashanker Dave, would be entitled to get the entire Flat No. 18 on the Second Floor of Southern Building at premises No. 9, Dacres Lane, Kolkata, consisting of 3 (three) bed rooms, 1 (one) kitchen, 2 (two) bathrooms with total covered area of 1250 sq. ft. (more or less), being Schedule-A property to the suit forever, in exclusion of others. C) The plaintiff would also be entitled to get the entire self-contained Flat at the backside on the Ground Floor of the building named "SHANTUMESH", consisting of 2 (two) bed rooms, 1(one) Hall, 1 (one) kitchen and 1 (one) bathroom with total covered area of admeasuring 118.63 square meter (equivalent to 1276.93 square feet) approximately, lying situate at Survey No. 2337-4, F. P. No. 676, Opposite Shastri Bag, Bank of India, Anand, Taluka and District- Anand, Gujarat, Pin-388 001, being Schedule-E property to the suit forever, in exclusion of others. D) The plaintiff is further entitled to receive the Block/Survey No. 36 admeasuring an area of 1,189 sq. mtrs. at Village Morad, Taluka Pellad, District-Anand, Gujarat, Pin-788 130, within Morad Gram Panchayat, being part of Schedule-F property forever, in exclusion of others. E) The defendant no.1, Maneshkumar Umiyashanker Dave, would be entitled to get the landed property, being Block/Survey No. 379 admeasuring 15,816 sq. mtr. mtrs. at Village Morad, Taluka Pellad, District-Anand, Gujarat, Pin-788 130, within Morad Gram Panchayat, being part of Schedule-F property forever, in exclusion of others. E) The defendant no.1, Maneshkumar Umiyashanker Dave, would be entitled to get the landed property, being Block/Survey No. 379 admeasuring 15,816 sq. mtr. at Village Morad, Taluka Pellad, District-Anand, Gujarat, Pin-788 130, within Morad Gram Panchayat, being part of Schedule-F property forever, to the exclusion of others. F) Further, the defendant no. 2, Yogeshkumar Dave, would be entitled to get the piece and parcel of land admeasuring 127.16 square meter (equivalent to 1368.74 square feet) approximately, together with brick built two storied building standing thereon, being numbered as Property, no. 160 at Village Morad, near Chabutari, Opposite to Ramji Temple, Taluka Pellad, District Anand, Gujarat, Pin-388 130, being the Schedule-B property forever, to the exclusion of others. G) The defendant no. 2, Yogeshkumar Dave, would also be entitled to get the self- contained Flat at the front side on the Ground Floor of the building named "SHANTUMESH", consisting of 2 (two) bed rooms, 1(one) Hall, 1 (one) kitchen and 1 (one) bathroom with total covered area of admeasuring 118.63 square meter (equivalent to 1276.93 square feet) approximately together with basement area of 26.97 square meter (equivalent to 290.31 square feet) approximately, lying situate at Survey No. 2337-4, F. P. No. 676, Opposite Shastri Bag, Bank of India, Anand, Taluka and District-Anand, Gujarat, Pin-388 001, being the Schedule-D property forever, to the exclusion of others. H) The defendant no. 2 would further be entitled to get the landed property, being Block/Survey Nos. 44 and 53 aggregating to 4,756 sq. mtr. at Village Morad, Taluka Pellad, District-Anand, Gujarat, Pin-788 130, within Morad Gram Panchayat, being part of Schedule-F property forever, to the exclusion of others. I) Likewise, the defendant no. 3, Nishesh U. Dave, would be entitled to get the piece and parcel of land admeasuring 117.46 square meter (equivalent to 1264.33 square feet) approximately, together with brick built two storied building standing thereon, being numbered as Property no. 162 at Village Morad, near Chabutari, Opposite to Ramji Temple, Taluka Pellad, District Anand, Gujarat, Pin-388 130, being the Schedule-C property forever, to the exclusion of others. J) The defendant no. 3, Nishesh U. Dave would further be entitled to get the landed property, being Block/Survey Nos. 74, 120 and 831 aggregating to 10,346 sq. mtr. 162 at Village Morad, near Chabutari, Opposite to Ramji Temple, Taluka Pellad, District Anand, Gujarat, Pin-388 130, being the Schedule-C property forever, to the exclusion of others. J) The defendant no. 3, Nishesh U. Dave would further be entitled to get the landed property, being Block/Survey Nos. 74, 120 and 831 aggregating to 10,346 sq. mtr. at Village Morad, Taluka Pellad, District-Anand, Gujarat, Pin-788 130, within Morad Gram Panchayat, being the residue part of Schedule-F property forever, to the exclusion of others. K) It has been further agreed by and between the parties herein that the moneys lying in different fixed deposit bank accounts of Bank of India, both at Burrabazar, Kolkata and Anand, Gujarat branch, morefully and particularly described in Schedule-G to the plaint, the plaintiff and the defendant no. 1 would jointly be entitled to withdraw the said sum together with accrued interest thereon on the basis of the decree that would be passed by the Hon'ble High Court at Calcutta in C. S. No. 65 of 2023 and they would disbursed and/or distributed amongst the parties herein in equal shares. 6. The parties shall file the instant Terms of Settlement before the Hon'ble High Court at Calcutta and the suit for partition, being C.S. No. 65 of 2023 [Dakshesh Umiyashanker Dave Vs.- Maneshkumar Umiyashanker Dave & Ors.] along with the pending applications, if any, be decreed of on the basis of the instant Terms of Settlement executed by and between the parties herein. 7. This Terms of Settlement shall be executed in quintuplicate, one of each such copy is to be retained by the plaintiff and the three defendants and one to be filed before the Hon'ble High Court at Calcutta in C. S. No. 65 of 2023 [Dakshesh Umiyashanker Dave -Vs.- Maneshkumar Umiyashanker Dave & Ors.]. 8. The parties herein agree and declare that they have no claims and/or counter claims against each other in respect of the properties which are subject matter of C. S. No. 65 of 2023 and the said suit, being C. S. No. 65 of 2023 [Dakshesh Umiyashanker Dave -Vs.- Maneshkumar Umiyashanker Dave & Ors.] be decreed in terms of the present Terms of Settlement accordingly. Dated this the 17th day of September, 2024.” 5. In the case of Mukesh (supra) , the Hon’ble Supreme Court held that : “13. Dated this the 17th day of September, 2024.” 5. In the case of Mukesh (supra) , the Hon’ble Supreme Court held that : “13. In respect of the issue relating to payment of stamp duty for mutation of the subject land, it is the specific plea of the appellant that “consent decrees” / “decrees” are not chargeable with “stamp duty” under the Indian Stamp Act, 1899 as applicable to the State of Madhya Pradesh. Section 3 of the Indian Stamp Act, 1899 provides the instruments which are chargeable with duty and the same reads as under: “3. Section 3 of the Indian Stamp Act, 1899 provides the instruments which are chargeable with duty and the same reads as under: “3. Instrument chargeable with duty— Subject to the provision of this Act and 8 the exemptions contained is Schedule I, the following instrument shall be chargeable with duty of the amount indicated in the schedule as the proper duty therefore, respectively, that is to say- (a) Every instrument mentioned in that schedule which, not having been previously executed by any person, is executed in India on or after the first day of July 1899; (b) Every bill of exchange payable otherwise than on demand or promissory note drawn or made out of on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiable in India; and (c) every instrument (other than a bill of exchange or promissory note) mentioned in that schedule, which not having been previously executed by any property situate, or to any matter or thing done, or to be done, in India and is received in India: Provided that, except as otherwise expressly provided in this Act, and notwithstanding anything contained in clause (a), clause (b), or clause (c) of this section or in Schedule I, the amount indicated in schedule I-A to this Act shall, subject to the exemptions contained in that Schedule, be the duty chargeable on the instruments mentioned in clauses (aa) and (bb) of this proviso, as the proper duty thereof, respectively, - (aa) every instrument, mentioned in schedule I-A as chargeable with duty under that schedule, which not having been previously executed by any person, is executed in Madhya Pradesh on or after the commencement of the Central Provinces and Berar Indian stamp (Amendment) Act, 1939; and (bb) every instrument mentioned in Schedule I- A as chargeable with duty under that schedule, which not having been previously executed by any person, is executed out of Madhya Pradesh on or after the commencement of the Central Provinces and Berar Indian Stamp (Amendment) Act, 1939 and relates to any property situated or to any matter or thing done or to be done, in Madhya Pradesh and is received in Madhya Pradesh: Provided further that no duty shall be chargeable in respect of- (1) any instrument executed by, or on behalf of, or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in respect of such instrument; (2) any instrument for the sale, transfer or other disposition, either absolutely, or by way of mortgage or otherwise, of any ship or vessel, or any part, interest, share or property of or in any ship or vessel registered under the Merchant Shipping Act, 1894 or under Act 19 of 1838, or the Indian Registration of Ships Act, 1841 as amended by subsequent Acts.” From the above, it is apparent that stamp duty is not chargeable on an order/decree of the Court as the same do not fall within the documents mentioned in Schedule 22 I or I-A read with Section 3 of the Indian Stamp Act, 1899. Though the Collector of Stamps determined the stamp duty for the subject land as per Article 22 of Schedule IA of the Indian Stamp Act, 1899, which states about conveyance, in this case, we have already held that the compromise decree does not fall under the instruments mentioned in the Schedule and that it only asserts the pre-existing rights. Therefore, in the facts of the case, the consent decree will not operate as conveyance as no right is transferred and the same does not require any payment of stamp duty. Since the appellant has only asserted the pre-existing right and no new right was created through the consent decree, the document pertaining to mutation of the subject land is not liable for stamp duty.” 6. In the present case the plaintiff has filed the suit for partition of the properties left behind by his father and during the pendency of the suit, the plaintiff and the defendants have entered into a Terms of Settlement on the basis of which this Court had decreed the suit. All the properties involved in the suit were owned by their father during his life time. The parties to the suit claimed their respective shares in the suit properties by way of inheritance. 7. The plaintiff as well as the defendant no. 2 has filed their supplementary affidavits disclosing the details of the properties left behind by their father. Taking into consideration of the details of the properties disclosed by the parties by way of supplementary affidavits and schedule of properties mentioned in the plaint, it reveals that the properties belongs to the father of the parties and after the death of the father, they have acquired their right, title and interest by way of inheritance. 8. In the case of Mukesh (supra), the plaintiff has filed the suit claiming that he is the owner of the subject land and is in long and continuous possession of the same by doing cultivation. In the case in hand, the plaintiff has prayed for partition of the suit property left behind his father and during pendency of the suit, the plaintiff and the defendants settled their disputes and have entered into a Terms of Settlement. The father was the owner of the properties and only after the death of their father, the parties to the suit acquired their right by way of inheritance. The father was the owner of the properties and only after the death of their father, the parties to the suit acquired their right by way of inheritance. The plaintiff and the defendants were not having any pre-existing right over the property. Mere by executing a Terms of Settlement on the basis of which decree was passed, it cannot be said that stamp duty is not chargeable. This Court finds that the case relied by the parties (the plaintiff and the defendants) is distinguishable from the facts of the present case. The reference made by the department is accordingly answered.