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CALCUTTA HIGH COURT
DAKSHESH UMIYASHANKER DAVE – Appellant
Versus
MANESHKUMAR UMIYASHANKER DAVE – Respondent
CS 65 / 2023
Key Points: - The court is clarifying whether a compromise decree in a partition suit, based on a Terms of Settlement, requires stamp duty (!) (!) . - The suit was for partition of properties left by the deceased father of the plaintiff and defendants (!) (!) . - The parties entered into a Terms of Settlement during the pendency of the suit, agreeing on the distribution of movable and immovable properties (!) (!) . - The plaintiff and defendants are brothers and heirs of the deceased (!) . - The settlement outlines the specific properties each party is entitled to (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) . - The parties agreed that the suit should be decreed based on the Terms of Settlement (!) (!) . - The parties cited the Supreme Court judgment in Mukesh Vs. The State of Madhya Pradesh and Another, arguing that a consent decree asserting pre-existing rights does not operate as a conveyance and does not require stamp duty (!) (!) . - The court distinguished the present case from Mukesh (supra) because in this case, the parties acquired their rights by inheritance after the father's death, and did not have pre-existing rights over the property prior to the settlement (!) (!) (!) . - The court found that the Mukesh judgment was distinguishable, and therefore, stamp duty is chargeable as the consent decree does not merely assert pre-existing rights but rather formalizes the distribution of inherited property (!) .
OD- 2 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE C.S. No. 65 of 2023 Dakshesh Umiyashanker Dave Vs.
Maneshkumar Umiyashanker Dave & ORS.
BEFORE :
The Hon’ble JUSTICE KRISHNA RAO Hearing Concluded On : 01.08.2025 Order On : 13.08.2025 Appearance:
Mr. Shuvasish Sengupta, Adv.
Mr. Aurin Chakraborty, Adv.
Mr. Prasanta Naskar, Adv.
... for the plaintiff.
Mr. Soumyajit Mishra, Adv.
…for the defendant.
ORDER
1. By an order dated 19th September, 2024, this Court disposed of the C.S.
No. 65 of 2023 on the basis of the Terms of Settlement entered between the parties dated 17th September, 2024. At the time of disposal of the suit, this Court directed to draw up the decree by making the Terms of Settlement as part of the decree. In compliance of the order passed by this Court dated 19th September, 2024 when the department was processing for drawing up of final decree, the Learned Advocate for the plaintiff and defendants have submitted their request along with the copy of the judgment passed by the Hon’ble Supreme Court in the case of Mukesh Vs. The State of Madhya Pradesh and Another dated 20th December, 2024 in Civil Appeal No. 14808 of 2024 and informed that the compromise decree does not fall under the instruments mentioned in the Schedule and that it only asserts the pre-existing rights and hence, the consent decree will not operate as conveyance as no right is transferred and the same does not require any payment of stamp duty.
2. On receipt of the said letter along with the judgment passed by the Hon’ble Supreme Court above, the matter is placed before this Court for clarification.
3. The plaintiff had filed the suit for decree for partition of the suit properties as mentioned in Schedule - A, B, C, D, E, F and G. As per the case of the plaintiff in the plaint, the plaintiff and the defendants are brothers and sons of Late Umiyashanker Chhaganlal Dave. The father of the parties during his life time owned various movable and immovable properties. The properties mentioned in Schedule - A, B, C, D, E and F are the immovable properties and Schedule “G” are movable properties.
4. During pendency of suit, all parties to the suit entered into a Terms of Settlement on 17th September, 2024, which reads as follows :
“TERMS OF SETTLEMENT
1. The plaintiff and the defendants are the full blooded brothers and the only heirs and/or legal representatives of Late Umiyashanker Chhaganlal Dave and Late Shanta Ben Dave. The said Umiyashanker Chhaganlal Dave expired on 17th October, 1999 and his widow, Shanta Ben passed away on 12th April, 2011.
2. Subsequent to the death of Umiyashanker Chhaganlal Dave and Shanta Ben Dave, disputes and differences arose between the plaintiff and the defendants regarding the distribution of the estate left behind by Late Umiyashanker Chhaganlal Dave, since he died intestate.
3. At such juncture, the plaintiff filed the present suit for partition of the properties, both movables and immovable, left behind by Late Umiyashanker Chhaganlal Dave, in accordance with the shares of the respective parties.
4. During the pendency of the present suit, the parties herein have arrived at an amicable settlement amongst themselves with mutual consent and covenants.
5. In view of the mutual consent and covenants, the parties do hereby agree as hereunder:
A) The parties herein have amicably settled the disputes between themselves out of court.
B) The plaintiff, Dakshesh Umiyashanker Dave, would be entitled to get the entire Flat No. 18 on the Second Floor of Southern Building at premises No. 9, Dacres Lane, Kolkata, consisting of 3 (three) bed rooms, 1 (one) kitchen, 2 (two) bathrooms with total covered area of 1250 sq. ft. (more or less), being Schedule-A property to the suit forever, in exclusion of others.
C) The plaintiff would also be entitled to get the entire self-contained Flat at the backside on the Ground Floor of the building named "SHANTUMESH", consisting of 2 (two) bed rooms, 1(one) Hall, 1 (one) kitchen an
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