JUDGMENT :

OM NARAYAN RAI, J.

1. This writ petition has been filed seeking issuance of a Writ of Mandamus declaring that the final decree dated November 29, 2023 is not an “instrument of partition” within the meaning of Section 2(15) of the Indian Stamp Act, 1899 (hereafter “the said Act of 1899”) and therefore not exigible to stamp duty under Article 45 or Article 23 of Schedule 1A of the said Act of 1899.

FACTS OF THE CASE:

2. Briefly summed up, the facts of the case are as follows:-

a) A suit for partition being C.S. No. 91 of 2013 had been instituted on the Original Side of this Court by one Smt. Sudha Nundy and her son Sri Suprakash Nundy wherein the petitioner was also arrayed as a defendant along with others. In the said suit, a preliminary decree was passed on December 03, 2013.

b) The preliminary decree was thereafter modified on January 20, 2016 and the petitioner was declared to be the owner of 12.5% of the 3/4^th share of the suit property. A Commissioner was appointed for preparation of the plan for partition who duly prepared a plan for partition.

c) On June 06, 2018 a structural engineer was appointed to assess the condition of the property inasmuch as the same was dilapidated. The structural engineer filed a report indicating that as per the plan, physical partition was not feasible.

d) Subsequently, the original plaintiffs died and the legal heirs of the original plaintiffs were substituted.

e) An application was thereafter filed by the plaintiffs (substituted), praying for sale of the suit property by public auction so that the parties were not deprived of their legitimate shares and claim in respect of the property.

f) Upon such application being filed, the petitioner (i.e. the defendant no.3 in the suit) sought for leave of the Court to allow him to purchase the share of the plaintiffs at the prevalent market price.

g) On February 20, 2023, it was agreed between the parties that the plaintiffs’ share would be sold to the petitioner. Ultimately on August 05, 2023 a registered conveyance was executed by the plaintiffs in favour of the petitioner upon payment of stamp duty.

h) On November 29, 2023 a coordinate Bench of this Court ultimately disposed of the suit being C.S. No.91 of 2013 and directed drawing up of decree “by making the proposed plan for partition being Annexure L of the Commissioner"s report and the Deed of Conveyance dated 5th August, 2023 as part of the Decree”.

i) While passing the said decree, the Court took note of the report filed by the structural engineer indicating that as the subject premises could not bear the impact of fresh construction to effect partition as per plan therefore partition of the premises was not possible.

j) The decree confirmed that the petitioner’s total share is 37.5%. The decree department thereafter sent the draft decree to the Collector for the purpose of assessment of stamp duty. On March 13, 2025 the Collector imposed a stamp duty of Rs.2,61,000/- which comprised two components:-

i. Rs.45,000/- under Article 45 of Schedule 1A of the said Act of 1899 for partition and ii. Rs.2,16,000/- under Article 23 of Schedule 1A of the said Act of 1899 for sale.

k) The petitioner objected to the same highlighting that stamp duty under Article 23 of Schedule 1A of the said Act of 1899 for the purpose of conveyance had already been paid during registration of sale deed on August 05, 2023. The Collector rejected such objection and passed an order dated April 08, 2025. Being aggrieved by the said order dated April 08, 2025, the petitioner approached this Court by way of this present writ petition.

l) Subsequently, by an order dated July 16, 2025, the Collector of Kolkata, Stamp and Revenue deleted the imposition of stamp duty for the purpose of conveyance (to the tune of Rs.1,43,520/-) but retained the imposition of stamp duty to the tune of Rs.45,000/- for the purpose of partition. The said fact was brought on record by way of a supplementary affidavit filed in Court. The petitioner still rem