Ritu Bahri, J. - (1.) CHALLENGE in this petition is to the order dated 27.7.2010 (Annexure P4) passed by the Commissioner, Hisar Division (Comp -Jind) whereby the case has been remanded back to the Collector -cum -Sub Divisional Officer (C) to ascertain the stamp duty on the Instrument of Partition which was got registered by the petitioners being cosharers. The petitioners executed a Memorandum of Partition on 22.3.2005 (Annexure P1). After giving details of the property in paragraphs 1, 2, 3 and 4 it is stated that about three months ago the parties with mutual consent and with the help of relatives have orally divided the aforesaid four items of the property among themselves. Vijay Kumar had got property No. 1, Parmod Kumar got property No. 2, Vinod Kumar got property No. 3 and Sudhir Kumar got property No. 4. All the parties will be owners in possession of their respective items. The Memorandum had been executed to give a written shape to oral and mutual division/partition taken place between the parties. This was to be treated as a proof to be used at a relevant time. This Memorandum of Partition was presented for registration before the Sub -Registrar, Narwana. The matter was referred by the Sub -Registrar to the Collector for determining the stamp duty in terms of the provisions of the Indian Stamp Act, 1899 (hereinafter referred to as the 'Act'). Vide order dated 23.12.2009 (Annexure P2) the Collector released the said Wasika by treating it as Memorandum of Partition of a joint property between four real brothers. There was no money transaction between them. It was held that Wasika in the dispute did not fall within the provisions of Section 2(15) of the Act so as to mean "Instrument of Partition".
(2.) ON an appeal made by the Sub Registrar, Narwana, the Commissioner Hisar Division (Comp -Jind) vide order dated 27.7.2010 (Annexure P4) accepted the appeal and remanded the case back to the Collector -cum -Sub -Divisional Officer (C) directing him to treat Annexure P1 dated 22.3.2005 as Instrument of Partition and determine the stamp duty accordingly. Counsel for the petitioners has sought quashing of this order on the ground that as per the language of Annexure P1 dated 22.3.2005 it was a Memorandum of Partition. As per Annexure P1 joint properties between the four brothers had been partitioned three months back orally. The Memorandum of Partition had been executed to give shape to an oral and mutual partition which could be used as a proof in future at a relevant time. There was no money transaction. The Commissioner had gone wrong in treating this document as Instrument of Partition under Section 2(15) of the Act. On the other hand, he has referred to the definition of "Instrument" as given in Section 2(14) of the Act which reads as under: - - "Section 2(14) "Instrument" includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or record."
(3.) AS per the definition of the "Instrument" the present Memorandum of Partition (Annexure PI) is covered under the definition "Instrument" under Section 2(14) of the Act. This document includes the oral partition effected between the four real brothers who were co -sharers in the properties which had been mutually transferred between them three months ago. The possession of title had already been so decided between the real brothers by oral partition. Had this document (Annexure P1) been an "Instrument of Partition" details of the date of possession to be taken or given would have been mentioned.;