- (1.) THIS application in revision has been filed under sec. 56 (1) of the Indian Stamp Act, 1899 as adapted by the Rajasthan Stamp Law (Adaptation Act, 1952) against an order of the learned Collector, Jaipur dated 10. 1. 58 ordering the payment of Stamp duty of Rs. 6645/- and a penalty of Rs. 101/- on a document dated 25. 7. 55 sent to him by the Sub Registrar, who impounded the same and proposed it to be taxed as an instrument of partition in accordance with the provisions of Article 45 of the Indian Stamp Act. The brief facts of the case are: -
(2.) ONE Shri Rajmal Surana executed a deed styling it as an instrument of partition and got it registered on 5. 10. 58, whereby he agreed to divide his entire ancestral immovable and movable property worth about rupees five lacs and eighty five thousand into eight equal shares amongst himself, his wife and six children. A stamp duty of Rs. 2390/- was paid thereon. In that deed it was stated that actual allocation of the properties will be done later on. Accordingly, on 7. 11. 53 the said properties by an oral adjustment are alleged to have been actually allotted to each of the co-sharers and possession was also given to them separately and in order to avoid future complications the same was reduced to writing in the form of a document dated 25. 7. 55 and submitted for registration as a supplementary deed on a stamp of Rs. 5/-to the Sub-Registrar. This deed was duly signed by Shri Rajmal Surana himself, his two major sons, his wife, the applicant, on her behalf and on behalf of their four minor sons under the guardianship of the lady. The Sub-Registrar before whom the said deed was put up for registration on examining the previous document as well as the present one came to the conclu-sion that the previous deed dated 5. 10. 48 was only an agreement to divide the property and not on actual instrument of partition, while the subsequent deed dated 25. 7. 55 was an actual instrument of partition and therefore it should be stamped as a conveyance at the rate of twenty rupees per thousand after deducting the sum of Rs. 2390/- already paid on the first instrument namely that of 1948. Accordingly, the Sub Registrar proposed that the present deed should be charged with a stamp duty of Rs. 10,150/- minus Rs. 2390/- (already paid) and Rs. 5/- paid on the present deed, i. e. a sum of Rs. 7755/-, and that the deed should be impounded until recovery of the same amount under Sec. 33 of the Act and reasonable penalty under sec. 40 of the Act be also imposed. The learned Collector examined both the deeds and held that the previous deed dated 1948 falls within the definition of 'settlement' as defined in clause 24 of sec. 2 of the Act and that the latter deed namely of 1955 was an instrument of partition which should be taxed according to the recommendations made by the Sub Registrar. He therefore, on recalculation directed that a sum of Rs. 6650/- minus Rs. 5/-already paid and a penalty of Rs. 101/- be recovered from the parties to the deed. Against this order the applicant has come in revision before us. As it involved the interpretation of the documents dated 1958 and 1955 and the assessment of the Stamp duty thereon which directly affects the exchequer of the State the case was fixed up for hearing by a Special Bench and a notice was given to the learned Advocate General of the Government of Rajasthan to plead and act on behalf of the State. The contention of the learned counsel for the applicant is that Shri Rajmal Surana, a Hindu father of an admittedly undivided joint Hindu family, had full authority to affect a partition of the ancestral and self-acquired movable and immovable property so far held jointly by him and his sons who had since been living as members of the joint family and that, therefore, in order to affect a division of the said property and status of a joint family he executed the earlier deed of 1948 in which the share of each member of the family including his wife was clearly defined. An actual division of the property by metes and bounds was thought unnecessary at the moment but was left on account of certain manifest reasons for a future date. It was pointed out that a plain reading of the document of 1948 would show that it was within the meaning of clause (15) of Section (2) of the Indian Stamp Act an instrument of partition and it was duly stamped as provided in Article 45 and got registered. It was further urged that subsequently when further details a reference of which was made in the said deed were settled, sometime in 1953,as for instance, necessary changes in the rent deeds, of certain shops etc. , the actual physical partition by metes and bounds was affected with due regard to the share of each individual and in order to provide a safeguard against future complications, the said Rajmal Surana got a. supplementary list prepared giving details of the allocations made to each individual and put up for registration before the Sub Registrar. This, as urged by the learned counsel, was simply a list allotting different properties to different co-owners and was merely a memorandum. In support of this he relied on a special Bench decision of the Allahabad High Court reported in A. I. R. (23) Allahabad page 220 wherein after examining the scope of Arts. 45, 46 and 12, it was held that a document not intended to divide properties mentioned therein, but referring to previous partition and providing for division of certain properties afterwards by separate agreement was held not to be a deed of partition and it was not liable to the payment of Stamp duty as an instrument of partition. The learned Advocate General conceded that a right of father to sever the sons inter se is a part of the patria potestas still recognised by the Hindu Law and to that extent the father of a joint family, in this case Shri Rajmal Surana, had full authority to divide the family property at any moment during his life-time. It was pointed out that the instrument executed in 1948 could, therefore, certainly be got executed and registered by the said Shri Rajmal Surana as instrument of partition and the mere fact that certain provision was also made for his wife, the applicant, does not mean that it was a Settlement and not an instrument of partition. He also urged that the subsequent instrument of 1955 was also in his opinion nothing more than a list allotting different properties to different co-owners and that there was nothing in the latter deed to suggest that it was a separate instrument of partition independent of the one already executed in 1948. Accordingly, he found himself unable to support the observation of the learned Collector that the first deed was a 'settlement' and the second one was an instrument of partition. We have ourselves looked into the deeds and are satisfied that the first deed of 1948 was clearly an instrument of partition whereby head of the joint family agreed to divide such property in severalty among the co-sharers within the meaning of clause (15) of sec. (2) of the Act. It cannot be categorized as a 'settlement' which term has been defined in sub-clause 24 of Sec. 2 of the Act. The mere fact that certain provision was made for his wife also does not change the nature of the deed as being a 'settlement*. As a rule in determining whether a document is 'settlement' or not regard must be had to the intention of the executants and the substance of the document. In the present case the earlier deed of 1948 clearly shows that the head of the joint Hindu family in clear and unequivocal terms partitioned the property and allotted equal shares to his sons and also gave one share to his wife. Ordinarily a wife is not entitled to get any share in the ancestral property by demands of such partition, but the mere fact that the head of the family somehow mentioned about her share also in the property does not detract it from the nature of the deed which was intended to be nothing more than an instrument of partition. It has been held that in determining the stamp duty leviable in respect of partition deeds containing dispositions of property in favour of relations or dependents or for charitable or religious purposes etc. the criterion is to see whether the provision is essential to the partition or not. If it is essential to the partition then the document is chargeable with duty as an instrument of partition only under Art. 45. But if the provision is not essential and is subsidiary to the partition the document comes under sec. 5 of the Act and is liable to duty under Art. 45 and some other provision in Schedule I. " (33) Mad S. M. page 130. (Citing BP Mis. , 417, 25th March 1919: BP Mis. , 176, 27th June 1927 : BP 45, Press, 27 April 1940. Where the deeds contain subsidiary provisions, viz. , maintenance of the parents of the executant or marriage of a nephew, they should be treated both as partition and settlement deeds liable to stamp duty in accordance with the provisions of S. 5 of the Stamp Act.)" " (33) Mad S. M. page 127 127. (Citing BP 1966, 10th June 1884. Two brothers, in dividing their family property amongst them, agreed to pay their mother fixed annual maintenance - A doubt having been raised whether this was a partition deed and an agreement, the Board held that it was a partition deed only.)" " (33) Mad S. M. page 128. (Citing BP 149, 30th September 1897 (Referred Case 14 of 1897 - A document was termed a deed of partition of property valued at Rs. 2,205 among four brothers, two of whom were majors and the other two minors. It set forth that property worth Rs. 405 was set apart for the maintenance of the father and mother, Rs. 430 for the marriage etc. , of two-minor sons, Rs. 400 for the marriage etc. of minor daughters, Rs. 597 for the discharge of debts and Rs. 373 was to be divided equally amongst the four brothers. The two shares of the minors together with the funds set apart for the marriages of minor sons and daughters and for the discharge of the debts were entrusted to the father. The High Court to whom a reference was made, held that the document was a partition deed and not a declaration of trust.)" Thus there can be no two opinions on the point that the 1948 document was an instrument of partition primarily even though it may be relating to a subsidiary matter which may bring it under sec. 5 of the Act. This brings us to the 1955 document. In view of the finding that an instrument of partition in respect of the property had already been executed and registered in 1948 and that possession over the partitioned property had been transferred in accordance therewith in 1953, it is obvious that the subsequent document of 1955 cannot be regarded as an instrument of partition. It is true that a list allotting different properties to different co-owners may amount to an instrument of partition if the parties intend to treat them as such. (13 Bombay L. R. 728 F. B. Ganpat vs. Supdu ). In this case 4 brothers made 4 lists of family property. Each list was signed by 3 of them and retained by the fourth. The four documents when read together formed an instrument of partition and each document formed title of the brother retaining it against the three brothers with regard to property which came to his share. The facts of the present case are entirely different from this ruling. There is no intention whatsoever to treat the 1955 document as an instrument of partition or to treat it as one conferring title upon the co-sharers. The clear intention as can be gathered is to treat it as a memorandum of a previous completed transaction and hence it will not be an instrument of partition. If any authority be needed for this view, it will be found in 1893 Bombay P. I. 203 Nilkant vs. Maruti and 20 A. I. R. 1933 Madras 162. To conclude therefore we hold that the 1955 document cannot be held to be an instrument of partition and as such the order of the learned Collector regarding recovery of deficiency in stamp duty and penalty is untenable. We, therefore, allow this revision and set aside the order of the learned Collector dated 10. 1. 58 regarding the payment of deficient stamp duty and penalty. . ;