An award that does not direct partition is to be stamped under Article 12 of the Stamp Act and not under Article 45 as an instrument of partition.

CHANDRASEKHARA SASTRY, J.

( 1 ) THE question raised in these revision petitions relates to the amount of Stamp duty payable on an award. The plaintiffs sought to obtain a decree in terms or an award under Sections 14 and 17 of the Arbitration Act, 1940. The plaintiffs and the defendants were partners carrying on several businesses and due to disputes, which arose between them, they referred the matter to arbitration by two arbitrators with a provision to have third arbitrator as an umpire. The award is dated 28-11-59. It was sent to the lower Court by the arbitrators by post on 25-1-61. When P. W. 1, one of the arbitrators, was in the witness box, this award was put to him. Then the 1st defendants counsel Mr. D. L. Chetty objected to the admissibility of the document; but the document was marked as Ex. A. 9, while at the same time in the deposition of P. W. I, it was noted by the court as follows:"mr. D. L. Chetty for 1st defendant objects to the admissibility -- As there is an issue No. 6 about the admissibility of the document, a finding on this will be given along with the finding on the other issues in the judgment. "

( 2 ) ISSUE No. 6 reads as follows:"whether the award is inadmissible in evidence for want of registration?"this issue was raised obviously because the defendants pleaded in the written statement that the award is not admissible in evidence as it was not registered as required by the Registration Act. Subsequently, there is a change in the personnel of the Presiding Officer of the Court and the question whether the award was properly stamped under the Stamp Act was raised by the Court itself. The following points were framed for determination:" (1) Whether the stamp duty paid on this document is sufficient or not; if not what is the stamp duty and penalty payable? (2) Whether the question of stamp duty and penalty can be raised at this stage after the document is marked as Ex. A-9 in the suit?"

( 3 ) ON the first point, the tower court held, though it has not given reasons for the same, that the document is an award and that stamp duty has to be paid under Article 12 of the Stamp Act; whereas, the contention on behalf of the defendants was that it was really an award directing partition and that it is governed by Article 45 of the Act which prescribes the stamp duty payable on an instrument of partition which is defined in Section 2, clause (15) of the Act. After considering the other facts of the case, the lower court found that originally, only stamp duty of Rs. 3 was paid whereas, the proper duty payable under Article 12 is Rs. 120. Therefore, it directed the plaintiffs to pay the deficit stamp duty of Rs. 117 and ten times penalty Rs. 1170 thus making a total of Rs. 1287. Time for this was given till 2/02/1963. C. R. P. No. 271 of 63 is by the plaintiffs questioning the correctness of this order It was argued in the lower court and again before me that, since the document is marked and admitted in evidence as required by Order 13, Rule 4 C. P. C. . such admission cannot be called in question at any stage of the same proceeding in view of Section 36 or the Stamp Act. This argument was repelled by the lower court on the ground that the lower court marked this document as Ex A-9 only subject to the question of admissibility of the document being decided. The note, made by the previous Subordinate Judge shows that the first defendants counsel objected to the admissibility of the document. It appears that the defendants advocates stated before the learned Subordinate Judge that passed the order under revision that, when the award was sought to be proved by P. W. 1, he took objection to the admissibility of the award both on the ground that it is not stamped and also on the ground that it is not registered. The order of the lower court does not disclose that this statement of the defendants counsel was contradicted by the plaintiffs counsel. But, what appears to have been argued by the plaintiffs counsel was only

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