A compromise decree passed by a Civil Court where under certain properties have been given to the plaintiff who sued for partition and possession of his share of the suit properties on the ground that he was the illegitimate son of late Kuncham Chidambaram, does not amount to an instrument of partition within the meaning of Section 2 (15) of the Indian Stamp Act, 1899.

( 1 ) THIS civil revision petition under Section 115 of the Code of Civil Procedure by the plaintiff-petitioner given rise to a short question of law relating to the scope and application on Section 2 (15) of the Indian Stamp Act, 1899.

( 2 ) THE material admitted facts which lie in a short compass leading upto this revision may briefly stated. The petitioner sued for partition and separate possession of his share in the suit properties on the ground that he is the illegitimate son of late Kuncham Chidambaram, the paternal grandfather of the first defendant, in the Court of the District Judge, Visakapatnam, in the year 1971. Defendants Nos. 2 to 5 were minors represented by their guardian and natural father the first defendant. The first defendants father late Krishnamurthy gifted some property on 11-11-1957 under a registered gift deed to the plaintiff. That apart, about three tolas of gold, Rs. 1,800. 00- cash and two bulls worth about Rs. 300. 00- were said to have been given by late Krishnamurthy to the plaintiff on 25/04/1940. The defendants denied the plaintiffs right to claim partition on the ground that he is the illegitimate son of their paternal grand-father Chidambaram. On the advice of some respectful persons interested in the welfare of both the parties, a memorandum of compromise was filed into the Court on the basis of which the court-below had passed a decree. Overruling the objection of the petitioner that the compromise decree does not amount to an instrument of partition, the court below has held that it is an instrument of partition within the meaning of Article 45 of the Indian Stamp Act ( hereafter called as the Act ), on the ground that the plaintiff would get particular items of property under the final decree. Hence this revision.

( 3 ) MR. D. V. Reddi Pantulu, the learned counsel for the petitioner contended that the compromise decree in the instant case is not an instrument of partition within the meaning of Section 2 (15) of the Act and the same need not be engrossed on a non-judicial stamp paper as ordered by the court below. None appeared for the defendants. This claim of the petitioner is resisted by the learned 6th Government Pleader contending inter alia that the plaintiff-petitioner claimed a share in the suit properties on the basis of his co-ownership and ultimately succeeded in getting certain properties exclusively under the compromise decree and therefore, it is an instrument of partition and there is no merit in this revision petition.

( 4 ) THE question that falls for determination is, whether on the facts and in the circumstances, the compromise decree is or is not an instrument of partition within the meaning of Section 2 (15) of the Act.

( 5 ) IN order to appreciate the scope of the question, it is necessary to briefly refer to the meaning and definition of an instrument of partition. Section 2 (15) of the Act defines instrument of partition as any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for affecting a partition passed by any revenue authority or any Civil Court and an award by an arbitrator directing a partition. Clause 15 of Section 2 of the Act may conveniently be divided into two parts, ( i ) applicable to instruments where under co-owners of any property divide or agree to divide such property in severalty and ( ii ) applicable to final orders passed by any revenue authority or Civil Court effecting partition and also an award directing a partition. In order to attract the first part of Sec. 2 (15) of the Act there must be deed of partition or an agreement to divide any property in severalty by co-owners. The latter portion will take in a final order of any Civil Court, effecting a partition of any property. It is pertinent to notice that the element of partition of any property by co-owners is really essential for the applicability of Section 2 (15) of the Act. Either actu