Parties to a final decree for partition must pay stamp duty only for their respective shares, not for all properties, as per Section 29(g) of the Stamp Act.

JUDGMENT :

N. SESHASAYEE, J.

1. On 21.09.2021, a final decree for partition came to be passed on the basis of memo of compromise filed by the parties. As is required, this final decree has to be engrossed in non-judicial stamp (henceforth would be referred to as NJS) paper. The plaintiffs have paid NJS for the proportionate value of the properties that came to be allotted to them under the final decree. The Registry however, required the plaintiffs to deposit the NJS for the entire value of all the properties in relation to which the final decree was passed. In other words, the sharers who have been allotted properties proportionate to the share as declared in the preliminary decree face an obligation to pay for the NJS for the value of the property allotted to other sharers as well. The plaintiffs resisted the objections of the Registry and required it to place the matter before this Court. That's how this matter came to be posted before this court.

2. On 21.02.2024, the case was posted before the court for hearing. Mr. Nagu Sah, the learned counsel for plaintiffs was heard briefly. It then came to light that there is a practice in vogue in the original side of this court where the final decree in a suit for partition will be drawn up only when NJS is deposited for the entire value of the properties pertaining to which final decree is passed. This would imply that if anyone is anxious to secure his property allotted to him in the final decree, then unless other parties share a similar anxiety and pay for the NJS for the respective properties allotted to them, the former will be denied the right to enjoy the benefit obtained under the final decree proceedings. The solution which the Registry has is plain and simple:

“If you are anxious to get a final decree for you, pay for all.”

3. Since the issue is of seminal significance this court appointed Mr. M.S. Krishnan and Mr. V. Raghavachari, both senior counsel with substantial experience in civil law, as amicus curiae, to assist this court.

4. Heard Mr. Nagu Sah, learned counsel appearing for plaintiffs and, the two amicus curiae which this court had appointed. The issue revolves around an understanding of the true import of Rule 12 of Chapter III of Part II of Civil Rules of Practice (which this court had framed in exercise of its powers under section 122 CPC), Article 45 read with Section 29(g) of the Stamp Act alongside Order XXIV Rule 12 of the Original Side Rules alongside S.O. 604 of the High Court Standing Order which deals with drafting of decree in the Original Side of the Court.

5. It is settled that no final decree for partition will be effective till it is engrossed in the NJS. And, there is no statutory provision prescribing time limit for furnishing the NJS for engrossing the final decree. [See: Doctor Chiranjee Lal (Dead) by LRs. vs. Hari Dass (Dead) LRs. (2005) 10 SCC 746]. However, in terms of the dictum in Ram Bachan Roy and Others vs. Ram Udar Roy and Others, (2006) 9 SCC 446. NJS might have to be deposited within 12 years from the passing of the final decree, since a final decree becomes executable from the date of the decree and not from the date on which it is engrossed in NJS, vide the dictum in Bimal Kumar and Another vs. Shakuntala Devi and Others, (2012) 3 SCC 548 since under Article 136 of the Limitation Act, 1963, the outer time limit for execution of any decree is 12 years from the date of the decree.

6. The issue here however, is not about how and when a final decree will become effective and executable, but about ascertaining if there is a statutory mandate authorising the Registry to demand a party to a final decree to deposit the NJS for all where he is only interested to make effective the final decree as concerning the properties allotted to him.

7.1 The need to engross the final decree in NJS for it to become effective is only intended to bring parity in payment of stamp duty with those who effect partition through a registered instrument consensually.