Passing of decree on plain paper or on insufficiently stamped paper.

Rajamannar, C.J.-This is a reference under section 57 of the Stamp Act by the Board of Revenue. One Moideen Rowther filed a suit for partition, Original Suit No.23 of 1951, in the Court of the Subordinate Judge of South Malabar, at Palghat, against his brothers. The parties entered into a compromise and put into Court a memorandum of compromise and prayed that the Court may be pleased to pass a decree in terms thereof. A decree was accordingly passed, but as it was a decree for partition, the parties were called upon to produce the stamps required for drawing up the final decree. Though the stamp duty amounted to Rs.1747-8-0, stamps only of the value of Rs.90 were produced. The learned Subordinate Judge drew up the final decree on the insufficient stamp-papers produced by the parties and then purported to impound the same under section 33(1) of the Stamp Act and forwarded it to the Sub-Collector, Palghat, under section 38 of the Act. In his letter forwarding the decree, the learned Judge stated that it was being forwarded to the Sub-Collector for collecting the deficit stamp duty and penalty from the parties who had defaulted to produce the necessary stamp papers. The Sub-Collector, Palghat, levied a penalty of Rs.5,000 in addition to the stamp duty of Rs.1657-8-0, under section 40(1) (b) of the Act. On appeal, the Collector confirmed the order of the Sub-Collector but reduced the penalty to twice the duty payable. The parties filed a revision petition to the Board of Revenue against the order of the Collector. They contended on the merits that the amount of stamp duty levied was incorrect. They also raised the question of jurisdiction. They contended that the Subordinate Judge has no power to draft the final decree in the circumstances and to impound it, and that the provisions of section 33 of the Act were erroneously invoked. The parties also prayed that a reference may be made to this Court if necessary. The Board of Revenue held that the stamp duty had been correctly calculated. The Board was also of the opinion that the action of the Subordinate Judge in impounding the instrument on the ground that it was not duly stamped was correct and legal, since the instrument was produced or came before him in the performance of his functions. They, however, considered that the question whether the learned Subordinate Judge, on the failure of the parties to furnish the requisite stamps, would have the power to draw up a final decree for partition, was not free from difficulty, and, it was necessary to obtain an authoritative decision on the point from this Court. The Board, therefore, have referred the following two questions to this Court for decision:

"(1) Whether the learned Subordinate Judge of South Malabar, on the failure of the parties in this case to furnish the requisite stamps, had the power to draw up the decree for partition?

(2) Whether the learned Subordinate Judge can impound the decree for partition drawn up by him under section 33 of the Stamp Act?"

There can be no doubt that a final decree for partition passed by a Civil Court is an instrument of partition as defined in clause (15) of section 2 of the Stamp Act. It follows that such a decree can only be engrossed on stamp papers of sufficient value. It was held in Jotindra Mohan Tagore v. Bejoy Chand Mahatap1, that a decree for partition to be operative must be engrossed on stamp paper, as required by the Stamp Act, and, until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated. In Satyanandan v. Nammayya2, this decision was followed by a Division Bench of this Court. The learned Judges in that case observed:

"It is well settled that a final decree for partition has no existence as a decree until it is engrossed on the proper non-judicial stamp paper; till that is done the suit is pending."

The question is if the parties do not furnish stamp papers of the requisite value on which the decree could be engrossed, whether the Court could

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