Decided on July 23,1969



- (1.) THIS is a reference under the Indian Stamp Act, 1899. The questions have been referred to this Court on account of a requisition made by this Court in miscellaneous Petition No. 331 of 1964. The questions referred are: ' (1) Whether the Batwaranama dated 3rd September 1959 is a document on which a stamp duty is leviable under the provisions of the indian Stamp Act, 1899? (2) If so, whether the document is an instrument of partition within the meaning of Section 2 (15) of the Act, or an instrument of non-testamentary settlement within the meaning of Section 2 (24) (b) of the Act?'
(2.) THE facts which have been stated in the reference giving rise to the dispute are that one Dwarka Prasad executed the document in question, by which he distributed the property between himself and his sons. The sons were minor and were represented by their mother as guardian. No share was given to the mother. In the document, Dwarka Prasad stated that he had the right to partition the property, and because there was no certainty of life he had decided to make the partition. The document is described as a deed of partition. It is in Hindi, and the relevant portion of the document has been quoted in the reference as follows:. . (VERNACULAR MATTER OMMITED ). .
(3.) WHEN the document was presented for registration the Registrar impounded the same and sent it for the opinion of the Collector. The Collector considered it to be a non-testamentary settlement as defined by Section 2 (24) (b) of the Act. On a revision before the Board of Revenue the same was upheld and the Board refused to make a reference; but when a writ petition was allowed, the reference has now been made. During this reference, it appears to have been taken for granted that this was a joint Hindu family consisting of Dwarka Prasad, his two minor sons anilkumar and Akhilkumar, and the wife of Dwarka Prasad and mother of the two sons. The Revenue authorities were of opinion that this partition deed had been executed by Dwarka Prasad alone and this was not the result of a multilateral agreement between the members of the family and therefore it could not be described as a partition, but it must be held to be a disposition of property by dwarka Prasad and also because mother had not been Riven a share.;

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