Allahabad High Court
KAMLESH SINGHversusPUSHPENDRA SINGH KAMA AND 17 OTHERS
- Decided
- Bench
- KSHITIJ SHAILENDRA
Holding
The final partition decree, incorporating the Commissioner’s report, declared the shares of all parties and the application for its engrossment on stamp papers was timely and lawful.
Summary
The petition under Article 227 challenged an order allowing the engrossment of a 1984 final partition decree on non‑judicial stamp papers. The decree, drawn in a suit for partition of immovable property, allocated shares to the plaintiff and defendant No.1 and, through the Commissioner’s report, also determined shares of the remaining co‑owners. The petitioner argued that the decree pertained only to the plaintiff and defendant No.1, that the decree was not final for the others, and that the application for engrossment was barred by limitation and lack of court‑fee payment. The Court held that the Commissioner’s report formed part of the final decree, thereby declaring shares of all parties, and that the application for engrossment was within the limitation period. It further clarified that stamp duty obligations under the Indian Stamp Act are distinct from court‑fee obligations and that the decree becomes enforceable independent of its engrossment. Consequently, the petition was dismissed.
Issues considered
- The scope of a final partition decree and whether it includes shares of parties not expressly mentioned in the operative portion.
- Whether an application for engrossment of a partition decree on non‑judicial stamp papers is barred by limitation.
- The relationship between stamp duty under the Indian Stamp Act and court‑fee payment in partition suits.
- The effect of the Commissioner’s report being made part of the decree on the rights of non‑desirous co‑owners.
Legislation cited
- Civil Procedure Code (CPC) — s. Order XXVI Rule 14
- Court Fees Act, 1870
- Indian Stamp Act, 1899 — s. 2(15), 29(g), 35, 3(a)
- Limitation Act, 1963 — s. Article 136, Article 137
Subjects
- partition decree
- engrossment
- stamp duty
- limitation period
- Article 227
- CPC Order XXVI Rule 14
- Indian Stamp Act
- execution of decree
Judgment
Reserved on 23.04.2026
Delivered on 07.05.2026
AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 6472 of 2023
Kamlesh Singh
…..Petitioner(s)
Versus
Pushpendra Singh Kama and 17 others
…..Respondent(s)
Counsel for Petitioner(s) : Atul Kumar Srivastava, Ramendra
Asthana, Shreyas Srivastava
Counsel for Respondent(s) : Abhijit Mishra, Abhishek Kumar,
Akhilesh Tripathi, Kalpana Sinha
IN CHAMBER
HON'BLE KSHITIJ SHAILENDRA, J.
ISSUE INVOLVED: ENGROSSMENT OF FINAL DECREE OF PARTITION
ON STAMP PAPERS: CONCEPT, APPLICABILITY AND LIMITATION
1. Heard Shri Shreyas Srivastava, learned counsel for the petitioner
and Shri Abhishek Kumar, learned counsel for the contesting
respondents.
2. This petition under Article 227 of the Constitution of India raises
challenge to an order dated 05.05.2023, whereby the learned Additional
District and Sessions Judge, Court No. 1, Mainpuri, (A.D.J.) has allowed
an application filed by the respondents seeking engrossment of a final
decree dated 23.04.1984 on non-judicial stamp papers.
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BRIEF FACTS
3. In a suit for partition, being O.S. No. 68 of 1972, parties entered
into a compromise and, based thereupon, a preliminary decree was
drawn on 16.07.1980. Thereafter, the plaintiff and defendant no. 1
applied for preparation of joint Kurra and paid requisite court fees. Final
decree was drawn on 23.04.1984 wherein the share of plaintiff and
defendant no. 1 was determined as 11/24 and collective share of
remaining defendants No. 2 and 4 to 9 was determined as 13/24.
4. Pursuant to an application filed by some of the defendants other
than the defendant no. 1, the order impugned dated 05.05.2023 was
passed permitting engrossment of final decree on non-judicial stamp
papers.
SUBMISSIONS ON BEHALF OF THE PETITIONER
5. Learned counsel for the petitioner has advanced following
submissions:-
(i) The final decree was drawn only in relation to
plaintiff and defendant no. 1, no decree was drawn in
favour of remaining defendants and, therefore, they had
no right to get engrossment of the decree on stamp
papers.
(ii) The First Appeal No. 407 of 1982 filed by the
remaining defendants challenging the final decree was
dismissed by this Court on merits by order dated
14.12.2012 and, therefore, non-declaration of their
shares attained finality, however, the said aspect has
been ignored by the learned A.D.J.
(iii) A Commissioner was appointed by the trial court
and, in terms of Order XXVI Rule 14 CPC, a report was
prepared by him proposing a partition scheme wherein
only two kurras had been carved out, first, pink kurra
(wrongly mentioned as red colour in first appellate
court’s judgment) belonging to the plaintiff and the
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defendant no. 1 and, second, green kurra (jointly co-
owned) belonging to remaining non-desirous defendants
no. 2 and 4 to 9 and once the final decree was drawn
solely and explicitly in favour of the plaintiff and
defendant no. 1, the same has to be read as it is and,
therefore, permitting engrossment of the said decree at
the instance of third parties, was not permissible.
(iv) There was no mention of the joint green kurra of
other non-desirous defendants in the decree and this
Court, while dismissing the first appeal, had considered
specific objections of the defendants no. 6 to 9 under
issue/point No. 1 holding that there is no principle in law
that there could be only one final decree of partition
amongst co-sharers, rather there may be more than one
final decree depending upon the facts and circumstances
of each case.
(v) It is indicated in the Commissioner’s report that only
plaintiff and defendant no. 1 had demanded partition and
paid requisite court fees and, therefore, the other lot of
remaining 13/24 share was to be demarcated, prepared
and left out for non-desirous co-owners, i.e. defendants
no. 2 and 4 to 9.
(vi) The indication made in the final decree that the
same had been ‘made final in terms of the
Commissioner’s report (11-Ga) and was made part of
the said decree’, would be read only in relation to
plaintiff and defendant no. 1 qua their kurras of pink
colour and not beyond that.
(vii) The remaining part of the Commissioner’s report
pertaining to green kurra only reported the ‘proposed
partition scheme’ which is yet to be endorsed and
converted into final decree.
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(viii) The trial court had varied the Commissioner’s
report under Order XXVI Rule 14 (3) CPC by only
handing over the pink kurra to the original plaintiff and
defendant no. 1 and no other share to any other person.
(ix) Execution application filed by the non-desirous
defendants seeking execution of the final decree, was
not maintainable as the execution applicants are not the
decree holders.
(x) The execution application was barred by limitation
under Article 136 of the Schedule contained in the
Limitation Act, 1963 and, as no specific period of
limitation is prescribed for an application seeking
engrossment of a decree on non-judicial stamp papers,
Article 137 would apply to such applications and once
the application was filed after seven years from the date
of final decree, the same was barred by limitation.
(xi) Article 136 of the Schedule would not apply in
relation to the application since the starting point of
limitation is the date when the decree becomes
enforceable, i.e. on the date of its passing.
(xii) The case of the contesting respondents is still at
stage one, i.e. the stage of preliminary decree, as there is
no final decree in their favour.
(xiii) Mere passing of a decree does not render it
executable straightaway and in case of partition decree,
it has to be engrossed on a non-judicial stamp paper as
required under Section 29(g) read with Section 3(a) of
the Indian Stamp Act, 1899 (‘Stamp Act’) to make it
executable.
(xiv) The act of getting a final decree engrossed is an
independent act solely in the control of the decree holder
and the requirement of engrossment flows/arises from
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the Stamp Act and is not in continuation of the
adjudicatory process in the partition suit.
(xv) Though engrossment is a pre-requisite for getting a
decree executable, the same arises on account of distinct
cause of action, i.e. for crystallizing and granting
recognition to the rights, as determined.
(xvi) Though the learned A.D.J. passed an order dated
23.04.1981 that a separate misc. case be registered, the
same was never filed by the non-desirous defendants and
even the liberty granted by the High Court in the
judgment dismissing the First Appeal No. 407 of 1982
whereby it was left open to the appellants (non-desirous
defendants) to pursue their applications for separation of
their kurras, was not availed by them.
6. In support of his submissions, he has placed reliance on Shankar
Balwant Lokhande (Dead) by LR’s Vs. Chandrakant Shankar
Lokhande: (1995) 3 SCC 413; Hameed Joharan (D) and others Vs.
Abdul Salam (D) by L.R’s and others: (2001) 7 SCC 573; Chiranji
Lal (D) by L.R’s Vs. Hari Das (D) by L.R’s: (2005) 10 SCC 746; and
The Kerala State Electricity Board, Trivandrum Vs. T.P.
Kunhaliumma: (1976) 4 SCC 634.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
7. Per contra, learned counsel for the respondents has advanced
following submissions:-
(i) Once the final decree dated 23.04.1982 indicates that the
decree be made final in terms of the Commissioner’s report (11-
Ga), which shall form part of the decree and, in the said report,
shares of other defendants were also declared vide paragraphs no.
6 to 27 and 30, it cannot be said that the decree was drawn only in
favour of plaintiff and defendant no. 1 to the exclusion of
remaining defendants.
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(ii) The engrossment of a decree on non-judicial stamp papers,
being in furtherance of the decree and forming part of its
executability, limitation would be 12 years as per Article 136 of
the Schedule contained in the Limitation Act and since the decree
was drawn in the year 2012, limitation would be available till
2024 and, therefore, the application having been moved in 2019
was well within the period of limitation.
(iii) Non-payment of court fees by the defendants other than
plaintiff and defendant no. 1, cannot be fatal to the claim of the
respondents as they can always pay court fees upto final stage of
execution as and when an order to that effect is passed by the
Executing Court and, therefore, mere indication in
Commissioner’s report that only plaintiff and defendant no. 1 had
paid court fees, would not mean that the remaining defendants
have lost their claim under the decree.
(iv) The liberty granted under the order passed by this Court in
First Appeal, was availed in terms of filing of Misc. Case No. 41
of 2019 whereby prayer to draw final decree and its engrossment
on stamp papers was made after depositing the stamp according to
their share and, therefore, all the requirements, either factual or
legal, stood fulfilled.
8. In support of his submissions, he has placed reliance on Gajanan
Vs. Pralhad: Civil Appeal No. 3524 of 2026 arising out of SLP (Civil)
No. 20405 of 2025), decided on 18.03.2026; and Hameed Joharan (D)
and others Vs. Abdul Salam (D) by L.R’s and others: (2001) 7 SCC
573;
DISCUSSION
9. I have considered the submissions made and have perused the
material available on record.
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(a) The application:
10. First of all, the Court deems it appropriate to refer to the very
nature of Misc. Application No. 41 of 2019 filed on behalf of the
respondents. The entire application reads as under:-
“1- That OS No. 68/1972 Kunwar Pushpendra Singh Kama (Dead)
Vs. Kunwar Harnam Singh Moti Singh Moti Sing (Dead) Others
was filed for partition of immovable properties lying in Mumbai &
Mainpuri. It was decided and Preliminary decree was passed.
2-That after passing of Preliminary decree the plaintiff decree the
plaintiff applied for final decree and a commissioner was
appointed to divide the disputed properties by metes and bounds
and two Kura were made. One Kura was given to the applicants
and the other one was given to opposite parties. On the bases of
the said commissioner report a final decree was passed on
23.04.1982.
3- That against the said final decree dated 23.04.1982, first appeal
bearing No. 407/1982 Ishwar Singh and others Vs. Pushpendra
Singh and others was filed before Hon'ble Allahabad High Court,
which was finally decided on 14.12.2012 and the appeal was
dismissed.
4- That the against the order dated 14.12.2012 pass by Hon'ble
Allahabad High Court, the appellant filed Special Leave Petition
bearing no. 19626 of 2013 Ishwar Singh and others Vs.
Pushpendra Singh Kama and others before Hon'ble Supreme Court
of India, which decided on 15.11.2016. Hence the final decree
became final on 15.11.2016.
5- That the trial court or any other court has not passed any order
regarding the stamping of final decree, hence the final decree
passed in favour of the applicant's could not be stamped nor was
the final decree drawn up and engrossed on stamp papers.
6- That the applicants are having 54.4% share in the disputed
properties as per the Preliminary as well as final decree. As per the
valuation of plaintiff applicants are submitting the stamp according
to their share is 54.4% is valuations of disputed property in the
plaint is Rs. 74000/- hence the valid applicants share in 54.4% is
42256/-. The applicants are submit the stamp of 1/4th amount of
their share as per court fees act i.e. Rs. 1195/-.
7- That now the applicant's have deposited the stamp, hence
the final decree made in favour of applicants and it be drawn
up on stamp papers. ON the Hon'ble Court may assess the
assessment of stamp and order accordingly. The applicants are
ready and willing to depositing the stamp as ordered by the court.
It is, therefore, prayed that final decree be made in favour
of applicants and it be drawn up and engrossed on the
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stamp papers submitted by the applicants or the amount of
stamp on which final decree in favour of applicant be
ascertained and the applicants be allowed to submit the
ascertained stamps and thereafter, the final decree in
favour of the applicant's be drawn up and engrossed on
stamp papers.”
(b) The decree :
11. The nature of partition decree passed and determination or non-
determination of shares of the parties, being of significance, it would
also be appropriate to make reference of the operative portion of the
final decree, which reads as under:-
“Let the decree be made final in terms of Commissioner's report (11
Ga) which shall form part of the decree,
Plaintiff and Defendant No. 1 will get Qura of Pink Colour as shown
in Maps No. 1 to 5 and plaintiff and Defendant No. 1 will get following
Compensation as under:-
Rs. 43000/- vide para 23, 24,
& 29 and Chart No. 3
of report commission
Rs. 5500/- Vide para No. 35 of Shri M.C. Jain
Rs. 23000/- Vide para No. 36, Adv.
Rs. 5361/- Vide para No. 38
Rs. 1000/- Vide para No. 39
---------
Rs. 77861/-
---------
(c) Commissioner’s report (11-Ga)
…………………….
6. It may be mentioned here that the plff. Kr. Pushpendra Singh and Kr. Harnam
Singh deft. No. 1 had only demanded partition and said requisite court fee for
preparation of their loss. In view of their aforesaid statement recorded on paper
marked Annexure 1 one combined lot of 11/24 share was to be prepared for them
and the other lot of remaining 13/24 share was to be demarcated, prepared
and left out for other Non-desirous remaining co-owners deftts. 2, 4 5 and 6
to 9 moreover, only two immovable properties described in item No. I of
schedule A of the plaint (vide statement recorded in Annexure 2) and schedule B
of the plaint were to be considered for such a partition.
25. Thus finally the following scheme for partition of Immovable and Movable
Properties is submitted in the above noted case:
Immovable Properties
26. That the Lal Singh building Bombay be divided into two lots or parts or
sub-divisions ‘G’ and ‘P' as shown in my sub-division plans map No.1 to 4
attached herewith. The southern sub-division 'G' shown by green colouring
in map No. 2 to 4 south of the dividing red line will be given to Kr. Ganga
Singh & others defendants No. 2, 4, 5 and 6 to 9 and they shall be entitled to
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get exclusive possession over the 16 shops, 1 Godown, 4 wooden stalls, 51
rooms, 15 W.Cs. 10 Bathrooms, 1 stair one lift, one well with water pump as
detailed in Chart II. The dividing red line shown by JKLMNR in my Map
No. 2 has been so selected it passes in such a way just at the places where
generally the walls exist. It also divides the building vertically upwards as is
clear from map No.2 to 4.
27. Similarly the Northern sub-division 'P' shown by pink colouring in my
maps No. 2 to 4 north of the red dividing line will be given to Kr. Harnam
Singh Deft. No. 1 and Kr. Pushpendra Singh Plff. and they shall be entitled to
get exclusive possession over 11 Shops, 4 Godowns, 31 Rooms, 15W.Cs. 10
Bathrooms and one stair case as detailed in Chart II. This lot or sub-plot P or
sub-divided Pink coloured portion will be owned and possessed by Kr.
Harnam Singh Deft. No. 1 and Kr. Pushpendra Singh plff.
30. That the immovable property situated at Gola Bazar Mainpuri Civil
Lines, Mainpuri detailed in item No. 1 of Schedule A of the plaint has also
been divided into two sub-divided into two sub-divisions of 11/24 and 13/24
shares. The green coloured portion situated towards the north of the dividing
red lines X Y in Map No. 5 will be given to Kr. Ganga Singh & others Deft.
No. 2,4,5 and 6 to 9 and they will be entitled to get exclusive possession over
the green coloured portion. The building and trees standing on this portion
shall go with the land and green coloured portion. The valuation given in
Chart IV is inclusive of the values of building and trees. The area and
valuation of this green coloured portion according to chart IV works out to
be the same as 13/24 share of the whole area and valuation of the whole plot.
12. Since learned counsel for the petitioner has argued that making
Commissioner’s report (11-Ga) as part of the decree would fall within
the contours of Order XXVI Rule 14 (3) CPC where the Court can vary
the decree in terms of the report, the provision is reproduced as under:-
“14. Procedure of Commissioner.- (1) …...
(2) …….
(3) Where the Court confirms or varies the report or reports it
shall pass a decree in accordance with the same as confirmed
or varied; but where the Court sets aside the report or reports
it shall either issue a new commission or make such other
order as it shall think fit.”
13. In view of the very fact that Commissioner’s report (11-Ga)
describes shares of not only the plaintiff and defendant no. 1 but also of
remaining defendants, submissions made that shares of no other party
except plaintiff and defendant no. 1 was declared, runs contrary to the
stipulations made in the Commissioner’s report (11-Ga) and, hence, the
arguments on that line fall. The indications made are actual
determination of the shares, may be termed as scheme for partition and
cannot be ignored after reading the entire report. As a matter of fact, the
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entire report (11-Ga) could not be quoted in the decree, hence it was
made part thereof and the indications made therein as regards court fees
etc have their own significance independent of declaration of shares
which has to be read as it is. As to other aspects, law would take its own
recourse.
(d) Stamp Act:
14. Now the question falls for consideration is as to what is the
significance of stamping a partition decree and, if not stamped, what is
its status. For the said purpose, reference of certain provisions of the
Stamp Act is required to be made. Sections 2(15), 3(a) and 29 (g) of the
same provide as under:-
“2(15) “Instrument of partition”.— “instrument of partition”
means any instrument where by co-owners of any property divide
or agree to divide such property in severalty, and includes also a
final order for effecting a partition passed by any Revenue-
authority or any Civil Court and an award by an arbitrator
directing a partition:”
3. Instruments chargeable with duty. —Subject to the
provisions of this Act and the exemptions contained in Schedule I,
the following instruments shall be chargeable with duty of the
amount indicated in that Schedule as the proper duty therefore
respectively, that is to say—
(a) every instrument mentioned in that Schedule which, not
having been previously executed by any person, is
executed in India on or after the first day of July, 1899;
“29. Duties by whom payable. —In the absence of an agreement
to the contrary, the expense of providing the proper stamp shall
be borne —
…….
by the person drawing, making or executing such instrument:
……
(g) in the case of an instrument of partition—by the parties
thereto in proportion to their respective shares in the whole
property partitioned, or, when the partition is made in
execution of an order passed by a Revenue-authority or Civil
Court or arbitrator, in such proportion as such authority,
Court or arbitrator directs.”
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15. From the above-referred provisions, it can safely be
understood that a final decree of partition is an instrument
chargeable with stamp duty and liability to pay the stamp duty lies
on the parties in proportion to their respective shares as
determined by the Civil Court. Therefore, once this Court has
found that shares of various parties were determined under the
final decree, the Commissioner’s report (11-Ga) was part whereof,
if the application for engrossment of the partition decree was
moved by anyone or more of the parties to the suit, no error is
found in the said action and it cannot be accepted that it was the
decree drawn only in favour of the parties other than those who
had applied for its engrossment on stamp papers. The Court may
also observe that had the application for engrossment of the
decree not been moved or had the decree not been engrossed
thereon, it would have become inadmissible in evidence and, in
this regard, reference can be made to Section 35 of the Act, 1899,
which reads as under:-
“35. Instruments not duly stamped inadmissible in evidence,
etc. — No instrument chargeable with duty shall be admitted in
evidence for any purpose by any person having by law or consent
of parties authority to receive evidence, or shall be acted upon,
registered or authenticated by any such person or by any public
officer, unless such instrument is duly stamped :
…………..”
(e) Effect of dismissal of First Appeal:
16. Now arises the question as to what would be the effect of
dismissal of First Appeal by this Court against the final decree. Much
emphasis has been laid on the findings recorded by this Court while
dismissing the First Appeal. Relevant portions of the order referred to by
learned counsel for the petitioner read as under:-
“No principle of law or precedent was placed before me to show that it
necessarily requires that there can only be one final decree of partition
amongst the co sharers. On the contrary, law is that there may be more
than one final decrees of partition, depending upon the facts and
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circumstances of each case. It was plaintiff Kunwar Pushpendra Singh
who insisted for carving out of his share separately, it is he who filed
the suit for partition. It is true that in a suit for partition, everybody is
plaintiff and defendant but the fact remains that every possible attempt
was made by Ganga Singh (defendant no. 2) and his sons who are
appellants herein to forestall the partition proceedings. It is matter of
record. The court below has committed no error if the share of the
plaintiff with the consent of the defendant no. I have been jointly
carved out to the exclusion of other co sharers.
…..
Strangely enough, he went a step ahead in advancing the argument
while criticizing the Commissioner's report that the Commissioner
should have carved out the quras of the plaintiff and defendant no.1
also. The said argument was advanced with a view to confuse the issue
and is not available to him in view of the fact that the defendant no.1
and the plaintiff consciously agreed that they may be allotted a joint
qura. What possible objection could the appellants have to such
arrangement, it is difficult to understand.
To conclude, there is no merit in the aforesaid submissions of the
learned counsel for the appellants. It shall be open to the appellants
who have already applied for separation of their quras to pursue
their applications, filed earlier, for carvation of their quras which
will be done, by the court below.”
17. In the opinion of the Court, the observations made by this Court
cannot be read in the manner so as to oust the respondents from the
scene and once observation was made that there may be more than one
final decree of partition and the share of the plaintiff with the consent of
defendant no. 1 was jointly carved out to the exclusion of other co-
sharers, the same does not mean that no share at all of remaining
defendants was declared. The finding has to be read only as regards
jointness of the shares of plaintiff and defendant no. 1 to the exclusion of
other co-sharers and the same does not mean that other stipulations qua
determination of shares of remaining defendants can be ignored,
particularly when paragraphs no. 25, 26, 27 and 30 of the
Commissioner’s report (11-Ga) clearly indicate the shares of the
remaining defendants.
18. Further, once this Court, while deciding the First Appeal, left it
open to the appellants, to pursue their applications for separation of their
kurras, it would not mean that they have lost their claims to get their
kurras separated. As to whether the parties other than the plaintiff and
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defendant no. 1 took any steps either during the course of preparation of
decree or thereafter, it would be appropriate to refer an application 195-
C filed by defendant no. 9 to get a separate lot on 30.11.1981 that was
allowed by the learned trial court by order dated 02.12.1981 granting 15
days’ further time for depositing court fees. It is necessary to quote the
application paper no. 195-C which reads under:-
“्ቚा्ቕना प्ቔ बाबत मुतरि ब क ाने कु ा मिमनजामिनब ्ቚतितवादी संख्या 9
्ቦीमान् जी,
मिनवेदन है मिक ्ቚा्ቕ" को मिववामिदत जायदाद में २ /८ भाग मिमला है। ्ቚा्ቕ" तसमि,या
के आधा प अपना कु ा अलग बनवाना चाहता है। अतः ्ቚा्ቕना है मिक ्ቚा्ቕ" का
२/८ भाग का कु ा अलहदा बनाये आने का आदेश ्ቚदान मिकया जावे।
्ቚा्ቕी को् ,ीस अपने कु ा की अदा क ने को तैया है।
Sd-/Illegible,
्ቦी ई्ቫ िሺसह गंगािሺसह ्ቚतितवादी सं० 9
्ቛा ा भी ्ቚेम चन्द दबु े एडवोके्
३०-११-८१
३०-११-८१”
19. Following orders were passed on the aforesaid application:-
“It is declaratory Court fee sought to have been deposited alongwith
the application.
Sd-Illegible.
30/11/81.
Heard, Allowed. Court fee may filed by 15 days further fixed.
Sd-Illegible.
2/12/81.”
20. In view of the above, it can safely be observed that the defendant
no. 9 not only attempted to get his share separated but he also was ready
to deposit the court fees, for which, time was also granted by the Court
to him and whether granting such time and availing or not availing the
same would at all be relevant for the purposes of the present case, is not
to be discussed as the said aspect of the matter is beyond the scope of the
preset petition. However, the misc. application No. 41 of 2019 referred
in paragraph No. 10 of this judgment containing composite prayer(s) is
also on the same/similar lines and could not be rejected, hence, rightly
allowed by the order impugned.
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(f) Stamp Duty and Court fees- the conceptual distinction:
21. Learned counsel for both sides have emphasized upon deposit
or non-deposit of court fees by desirous or alleged non-desirous
parties to the suit and arguments were attempted to be co-related to
the requirement of the engrossment of partition decree on stamp
papers. It was also argued on behalf of the petitioner that since the
decree was endorsed on non-judicial stamp papers, the same would
not amount to deposit of court fees by all non-desirous defendants
and, for this reason also, they should not have been permitted to get
the decree engrossed on stamp papers. In light of such submissions,
the Court deems it appropriate to articulate distinction in between
the concept of stamp duty and court fees.
22. The Court ought not to conflate the requirement of engrossment of
a decree on non-judicial stamp paper with the obligation to deposit court
fees in a suit for partition or in any other proceeding. In fact, the
requirement of engrossment under the Stamp Act emanates from the
applicability of Section 3(a) read with Section 29(g) and the use of non-
judicial stamp papers is entirely distinct from the use of judicial stamp
papers used for payment of court fees. The two concepts, i.e., (i)
stamping of an instrument under the Indian Stamp Act, 1899 and (ii)
payment of court fees under the Court Fees Act, 1870 operate in distinct
legal domains, serve different fiscal purposes and are governed by
separate statutory schemes. Any attempt to conflate them, particularly in
the context of partition decrees, leads to doctrinal error.
23. Stamp duty is a tax on instruments. Its incidence arises upon the
execution of an instrument specified in Schedule I (or IA as amended by
States). The charging provision is Section 3 and the liability is attracted
irrespective of litigation, i.e., even outside court proceedings. It is
transaction-oriented as the duty is levied on the instrument embodying a
transaction (e.g., conveyance, lease, partition, settlement etc). It is
concerned with validity for evidentiary and enforceability purposes.
Under Section 35, as noted above, an instrument, not duly stamped, is
inadmissible in evidence.
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24. On the other hand, Court fee is a fee on the institution and
prosecution of proceedings in a court of law. It is process-oriented,
levied on plaints, written statements, appeals, applications, etc. It is a
condition precedent for the court to entertain a proceeding. Its measure
depends upon the nature of relief claimed (ad valorem or fixed) and not
upon execution of any instrument. It has no bearing on the intrinsic
validity or admissibility of a document as an “instrument.” There is no
statutory interdependence between the adequacy of stamp duty on an
instrument and the liability to pay court fees in a civil proceeding. A
document may be duly stamped but insufficiently court fee paid and
another situation can be that proper court fee has been paid in litigation
but instrument is unstamped/insufficiently stamped.
25. The obligation to engross a final decree for partition on non-
judicial stamp paper is a post-adjudicatory fiscal incident arising from
the transformation of a declaratory decree into an executable instrument
of partition and bears no juristic or fiscal correlation with the levy or
sufficiency of court fees at any stage of the suit or its execution. In
partition suits, when a preliminary decree is passed declaring shares of
parties, no instrument of partition comes into existence at that stage,
hence no stamp duty is attracted. The final decree effecting actual
division, embodies partition and has been treated in law as akin to an
“instrument of partition”. Consequently, it may require stamp duty under
the Stamp Act at the stage of engrossment. Therefore, if any one or more
of the defendants whose shares have been declared, seek to have their
respective portions (kurras) separated on the spot, they are under
statutory obligation to deposit the requisite court fees in accordance with
law. The requirement of engrossment on stamp paper being a separate
and independent aspect, cannot be intermixed or confused with the issue
of deposit or non-deposit of court fees.
26. Accordingly, the submission that the petitioners or other alleged
non-desirous defendants, having not paid the requisite court fees, would
not derive any advantage out of the engrossment of the decree on non-
judicial stamp papers, is not acceptable. Nothing has been brought to the
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notice of the Court to suggest that the right to deposit court fees, whether
during the course of execution or in exercise of the Court’s power to
grant further time, stands extinguished at any stage. In other words, there
is no legal bar preventing the payment of deficient court fees during
execution proceedings.
(g) On the question of limitation:
27. The learned A.D.J., in the order impugned, has observed that after
the First Appeal was dismissed by the High Court on 14.12.2012,
Special Leave Petition was filed before the Hon’ble Supreme Court that
was dismissed on 15.11.2016; the application seeking engrossment was
filed on 15.10.2019 and, therefore, even if three years period is
computed as per Article 137 of the Schedule, the application was filed
within three years from the dismissal of Special Leave Petition and, thus,
was within time. As regards right of the respondents to get the decree
engrossed, observation was made that since every party in a suit for
partition is plaintiff and defendant, the respondents being parties to the
suit and the Commissioner’s report having been made part of the decree,
they be allowed to get the decree engrossed.
28. As to whether the finding of the learned A.D.J. on question of
limitation is correct or not, it would be appropriate to refer Articles 136
and 137 of the Schedule contained in the Limitation Act, which provide
as under:-
Article 136
Description of suit Period of limitation Time from which period
begins to run
For the execution of any decree Twelve years. When the decree or order
(other than a decree granting a becomes enforceable or
mandatory injunction) or order where the decree or any
of any civil court. subsequent order directs
any payment of money or
the delivery of any property
to be made at a certain date
or at recurring periods,
when default in making the
payment or delivery in
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respect of which execution
is sought, takes place:
Provided that an application
for the enforcement or
execution of a decree
granting a perpetual
injunction shall not be
subject to any period of
limitation.
Article 137
Description of suit Period of Time from which period
limitation begins to run
Any other application for which no Three years When the right to apply
period of limitation is provided accrues.
elsewhere in this Division.
29. Article 136 of the Act of 1963 prescribes twelve years period for
execution of a partition decree and arguments were also advanced as to
when the decree becomes enforceable or executable. The Calcutta High
Court, in the case of Biswapati's case (supra), has laid down that the
word “enforceable” should be read in its literal sense, furnishing of
stamp paper is an act entirely within the domain and control of the
appellant and any delay in the matter of furnishing of the same cannot
possibly be said to be putting a stop to the period of limitation being run
and no one can take advantage of his own wrong and that engrossment
of stamp paper would undoubtedly render the decree executable but that
does not mean and imply that the enforceability of the decree would
remain suspended until furnishing of the stamp paper.
30. In the case of Kerala State Electricity Board (Supra), it was
held that the words "any other application" under Article 137 cannot be
said on the principle of ejusdem generis to the applications under the
Civil Procedure Code and that Article 137 of the 1963 Limitation Act
will apply to any petition or application filed under any Act to a civil
court and is not confined to applications contemplated by or under the
CPC.
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31. In the case of Chiranji Lal (supra), the Hon’ble Supreme Court
has held that the engrossment of the final decree in a suit for partition
would relate back to the date of the decree. The beginning of the period
of limitation for executing such a decree cannot be made to depend upon
date of the engrossment of such a decree on the stamp paper. The date of
furnishing of stamp paper is an uncertain act within the domain, purview
and control of a party.
32. It is not to be forgotten that this Court, in the present petition, is
not examining the period of limitation qua execution of the final decree,
rather the scope is confined to examine limited challenge to the
correctness of the order on an application seeking engrossment of decree
on stamp papers and, therefore, following the decision in the case of
Chiranji Lal (supra), the Court finds that no date or period is fixed for
furnishing stamped papers and it cannot be said that the period of
limitation would begin from the date of engrossment of a decree on
stamped paper.
33. Now, even if the argument of the petitioners based upon Article
137 of the Schedule is accepted as it is, words ‘when the right to apply
accrues’ appearing in the said Article would be of quite significance. As
to when would such right to apply for engrossment of a final decree on
stamp paper would arise, the Court holds that since
executability/enforceability of a partition decree is not dependent upon
its engrossment on stamp papers and wherever the decree attains finality,
the period of limitation for its execution starts independent of
engrossment. The limitation for execution being 12 years as per Article
136, if any party moves an application at any time during subsistence of
period of limitation for execution, the application would remain within
time, inasmuch as ‘right to apply’ would accrue and continue to remain
alive at any point of time during the said period of limitation.
34. Let us consideration a hypothetical situation where, just before the
end of period of limitation for execution of the decree, any party applies
for engrossment of the decree on stamp papers, say for example after 11
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years and 11 months of the finality attached to the decree. In such a
situation, the application would still remain within time and, as soon as
the said application is allowed and the decree is engrossed on stamp
papers, it would become admissible in evidence as per Section 35 of the
Act, 1899. As to whether engrossment would be a pre-requisite for
execution or not, is totally an independent aspect of the matter as neither
under the Stamp Act nor under C.P.C., it is provided that it is only when
a decree is engrossed on stamp papers, the same would become
executable.
35. The Court may go even to the extent where the limitation of
execution of the decree expires and the application for engrossment is
moved thereafter. In that event, the executing court may be within its
competence to dismiss the execution application as barred by limitation,
however, in so far as the application for engrossment of the decree on
stamp paper is concerned, the same being an independent aspect, the
application can still be allowed and the decree can be engrossed. In such
an event, execution may not materialize on account of it having become
barred by limitation, nevertheless, for the purposes of admissibility of a
partition decree in evidence as per Section 35 of the Act, 1899 read with
any other provision of law, an engrossed decree would become
admissible in evidence and the parties may utilize it for any purpose. The
Court need not enter into further discussion as to whether without
engrossment, the decree would or would not be accepted by the
executing court as admissible for the purposes of execution also and the
Court, in the present case, confines its discussion mainly on the
limitation of moving application for engrossment.
36. In view of the above discussion, though the learned A.D.J. has
assigned different reason for holding the application within the period of
limitation, this Court otherwise holds the application as within limitation
and discards contrary submissions advanced on behalf of the petitioner.
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CONCLUSION
37. In view of the above discussion, this Court is of the considered
opinion that shares of the parties other than plaintiff and defendant no. 1,
were also declared under the final decree as per the Commissioner’s
report 11-Ga that was made part thereof, and their attempt to get the
decree engrossed on stamp papers did not suffer from any factual or
legal bar and the application moved for that purpose was well within
limitation.
38. At the same time, it is also observed as to what would be the fate
of execution proceedings or any other proceedings pending or that may
be instituted by any of the parties in furtherance of the partition decree,
is altogether a different aspect and determination of issues involved in
the present petition would not affect consideration of those separate
proceedings by the courts concerned in accordance with law. The
discussion made hereinabove is restricted and confined to the issues
raised qua engrossment of final decree of partition on stamp papers and
no error is found therein.
39. The present petition is, accordingly, DISMISSED.
Appreciation for lawyers:
40. The Court would fail in its duty if it does not place on record its
deep appreciation for the remarkable assistance rendered by learned
counsel for both sides. Submissions advanced by them on typical and
rare issues of civil law were exhibited with precision and had great
persuasive value. The arguments were based upon deep study of the
factual and legal issues involved and projected in multidimensional form
and, therefore, the Court records all its appreciation for Shri Shreyas
Srivastava and Shri Abhishek Kumar Advocates.
(Kshitij Shailendra,J.)
May 7, 2026
AKShukla/-
Digitally signed by :-
ANIL KUMAR SHUKLA
High Court of Judicature at Allahabad
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