BAVDEKAR, J.:- This order refers to the distribution of the stamp duty and penalty which has actually been paid by defendant 1 in both the suits for the purpose of rendering admissible in evidence certain instruments.

2. Mr. Kotwal who appears on behalf of defendant 1-appellant contends that he is entitled to the refund of the amount of stamp duty and penalty which he has paid from the other co-sharers under the provisions of S.44(1), Indian Stamp Act. That section runs as follows:

"When any duty or penalty has been paid under S.35, S.37, S.40 or S.41, by any person in respect of an instrument, and, by agreement or under the provisions of S.29 or any other enactment in force at the time such instrument was executed, some other person was bound to bear the expense of providing the proper stamp for such instrument, the first-mentioned person shall be entitled to recover from such other person the amount of the duty or penalty so paid."

Now, the opening words of the section have got reference to the duty or penalty paid amongst others under S.35. What S.44(1) does is that it enables the person paying the duty or penalty to recover it. It is recoverable from "some other person bo