C.S.P.Singh, J. - (1.) THE Chief Con trolling Revenue Authority has under Sec tion 57 (1) of the Stamp Act referred the following questions to us for answer. "1. Whether the document (Annexure 1) is an 'instrument of partition' as defined in Section 2 (15) of the Indian Stamp Act and is chargeable with duty under Article 45 of Schedule 1-B thereof? 2. Whether the document under refer ence is already properly stamped with a duty of Rs. 2.25?" The facts necessary for an answer to these questions may be shortly stated. Siya Ram, Kailash Nath and Smt. Kunnan Devi executed a document on the 4th of Sep tember, 1969, in which there was a recital that the parties belonged to the same family and were owners of certain proper ties mentioned in the deed. It was fur ther averred that the parties had partition ed the properties and had entered into separate possession of their shares on the 27th of March, 1969 and that subsequent ly a map showing the shares of the parties in the properties had also been prepared. The document thereafter went on to recite that a part of the house vyhich contained a passage, an Angan and a well had not been partitioned and had been left joint. The occasion for executing the document was. stated to be for avoiding future dis putes between the descendants of the par ties and also for the purpose that the document may serve as evidence of the partition that had been effected earlier. A stamp duty of Rs.
(2.) 25 was paid in respect of this document, and thereafter was presented before the Collector, Vara-nasi for determination of the stamp duty thereon. The Collector was not able to come to a definite conclusion regarding the nature of the document. He accordingly referred the matter to the Board under Section 56 (2) of the Stamp Act. - 2. Before the Board it was .con tended on behalf of the executants that the document in question was not an instru ment of partition as defined under Section 2 (15) of the Act, and support for this was sought from the two decisions of this Court in Bhagwana v. Gulab Kuer, AIR 1942 All 220 (FB) and Smt. Thekura v. Sukhraj Singh, 1953 All LJ 312 = (AIR 1953 All 350). The Board, however, was of the view that the document was an in strument of partition as defined in Section 2 (15) of the Stamp Act, and was charge able to stamp duty under Article 45, Sche dule 1-B thereof. The Board arrived at this view, in spite of coming to the con clusion that it was possible that the parti tion might have taken place earlier i.e. on the 27th of March, 1969. It sought sup port for its conclusion by referring to the definition of the word 'instrument' in Sec tion 2 (14) of the Act. In its view, even if a document recording the fact of parti tion is executed after the date of actual partition, it would still be an instrument of partition and liable to duty as such. We are of the view that the Board of Revenue was in error in holding that the document in question was an in strument of partition. The first question that arises in this reference is covered by a Full Bench decision of this Court in AIR 1942 All 220 (FB) which has been refer red to by the Board in its decision. The Board has not followed the decision, in spite of the fact that the decision was fully applicable to the facts of the present con troversy. It was bound by the view ex pressed by the Full Bench and was in error in not deciding the matteiv in accord ance with the decision of this Court. This apart, the reasons given by the Board for holding that the document in question was an instrument of partition, are not sound. \n instrument of partition has been de fined in Section 2 (15) of the Act. Before aid of this sub- section can be taken, the instrument must be one which is executed by co-owners, and the partition must be effected by that instrument. In the present case as the partition had already taken place earlier, and the parties had entered into separate pos session of their shades, they ceased to be co-owners of the properties over which they had taken over separate possession. Moreover, inasmuch as the present docu ment only referred to the fact of partition having taken place earlier, it did not come within the purview of this sub-section. The reliance placed upon Section 2 (14) of the Act is also erroneous. Before recourse to sub-section (14) of Section 2 could be taken for the purpose of interpreting Sec tion 2 (15), it had to be seen as to whe ther the adoption of the meaning of the word 'instrument' given in Section 2 (14) of the Act was consistent with the provi sions of Section 2 (15) of the Act. If the definition of the word 'instrument' as given in Section 2 (14) is substituted in Section 2 (15), an inconsistency would arise. It has been seen that Section 2 (15) of the Act excludes documents other than those executed by co- owners, while the substitution of the meaning of the word 'instrument' as given in Section 2 (14) would bring such documents within the purview of Section 2 (15). Thus in view of the opening part of Section 2 of the Act, it is not possible to engraft the meaning of the word 'in strument' as given in Section 2 (14) in Section 2 (15) of the Act. Our conclusion, therefore, is that the document in question was not an instrument of partition as de fined in Section 2 (15) of the Act, and was not chargeable to duty under Article 45 Schedule 1-B thereof.
(3.) SO far as the second question is concerned, inasmuch as we have held that the document in question is not an instru ment of partition, the stamp duty paid on it, was proper.;