The main legal point established in the judgment is that only decrees that allot and vest particular shares in co-owners as part of a partition require stamp duty, while a memorandum of family settlement does not create or extinguish rights in immovable properties and does not require compulsory registration.

HIMA KOHLI, J.

( 1 ) THE present appeals arise out of the order dated 14th January, 2005 passed by the learned single Judge in a suit filed by appellant No. 1 as plaintiff for declaration to the effect that the oral family settlement dated 2nd October, 2002, reduced into writing on 31st october, 2002 by way of a memorandum of family settlement is binding on all the defendants, appellant Nos. 2 to 13 herein. By the impugned order, the learned single Judge dismissed an application (IA No. 9823/2003) preferred by the appellant No. 5/defendant No. 4 in the suit proceedings praying, inter alia, that the objections raised by the registry calling upon the parties to file the Court fee and/or stamp duty before drawing up a decree as affixed in a partition suit, are liable to be dropped. The learned single Judge rejected the said application by holding that the requirement of the registry was as per law and that the compromise application accepted by this Court vide order dated 13th June, 2003 resulted in extinguishing rights and corresponding creation/acceptance of rights in favour of the parties to the suit. Hence it was held that the decree related to immovable property and it shall have to be drawn on stamp paper of adequate value. Aggrieved by the said order, the appellants have filed the present appeals.

( 2 ) ALONG with the present appeals, the appellants have also filed an application (CM no. 8100/2006) under Section 5 of the Limitation Act for condonation of delay in filing and refiling of the present appeals totalling to 375 days. As per the report of the registry, there is a delay of 91 days in filing the appeals. The remaining delay is in refiling the same after removal of objections. The appeal was filed in the first instance on 15th april, 2005 and was returned under objections on 23rd April, 2005. Thereafter the same was refiled by the learned counsel for the appellants only on 6th May, 2006. The counsel for the appellants have sought to explain the delay in filing and subsequently refiling the appeal by stating that in the month of May, 2005, he was detected with the ailment Myasthenia Gravis. The side effect of the said disease resulted in detachment of the retina of his right eye for which he had to undergo surgery and prolonged treatment and thus he was confined to bed for a long time and could rejoin work only in March. 2006. In support of his explanation, the medical record of the treatment of the counsel for the appellants is also enclosed. Upon perusing the same, we are satisfied that sufficient cause has been given in the application for explaining the delay in filing and refiling the appeals. The delay is condoned and the appeals are taken on record.

( 3 ) WE have heard the learned counsel for the appellants and have also called for the records of the suit and perused the same. We have also called upon Mrs. Avnish ahlawat to assist us on behalf of the High court in deciding the appeals.

( 4 ) BEFORE dealing with the legal issue at hand, the following facts need to be taken note of. During the pendency of the suit proceedings, an application (1. A. No. 6636/ 2003) was filed by all the parties jointly under Order XXIII, rule 3 of the Code of Civil procedure (for short 'cpc') praying inter alia, that the aforesaid suit be decreed in terms of the compromise arrived at between the parties and stated in the application. Vide order dated 13th June, 2003, the learned single Judge disposed of the suit and ordered that compromise be recorded as stated in para 3 of the aforesaid application and decree be drawn up in terms of the compromise. The aforesaid order is reproduced hereinbelow :

"this is an application for decreeing the suit in terms of the compromise arrived at between the parties. Earlier, there was an oral family settlement, a memorandum of which was reduced to writing. The said memorandum of oral family settlement has been filed in this Court and is at pages 29-46 in the main suit file. That memorandum wa