JAVED IQBAL, J.---This petition for leave to appeal is directed against the order dated 5-3-2004 passed by learned Single Judge of Lahore High Court, Lahore, in chambers whereby the Constitutional petition preferred on behalf of petitioner has been dismissed and judgments/decrees dated 17-11-2003 and 26-1-2004 passed respectively by the learned Civil Judge and the learned Additional District Judge, Lahore have been kept in tact whereby the petitioner was directed to pay stamp duty for preparation of decree sheet on the basis of value of his share in the property to be devolved upon him after partition pursuant to the above mentioned judgments/decrees.
2. The relevant facts as enumerated in the order impugned are to the effect that "petitioner filed a suit for administration of property of his brother Kh. Muhammad Asif, who died on 4-3-2000 leaving behind the petitioner and the respondent as his widow, as sole heirs. Immovable property left by the deceased has duly been detailed in .para. 2 of the plaint, whereas movables have been mentioned in its para.4. Pending suit parties entered into a compromise and made statements before the learned trial Judge on 12-11-2003, in consequence of which suit of the petitioner for administration, was decreed vide judgment and decree dated 17-11-2003 passed by the learned Civil Judge. This final decree administration suit specifies respective shares of the parties giving the petitioner 3/4 share and rest 1/4 was given to the respondent, and the decree was ordered to be prepared over stamp papers of the value of the shares of the parties, above mentioned, according to the market value in terms of schedule of the Deputy Commissioner, within thirty days." Being aggrieved the petitioner preferred a revision petition before the learned Additional District Judge, Lahore, which was dismissed by means of judgment dated 26-1-2004. The same was assailed before the learned Lahore High Court, Lahore, by way of Constitutional petition which has been dismissed vide order impugned, hence this petition.
3. Mr. Shaukat Umar Pirzada, learned Advocate Supreme Court entered appearance on behalf of petitioner and urged emphatically that the legal and factual aspects of the controversy have not been appreciated by the Courts below resulting in serious miscarriage of justice as the provisions contained in Articles 45 and 58 of the Stamp Act, 1899 have been misinterpreted and misconstrued. It is contended that the learned Single Judge of the Lahore High Court, Lahore, in chambers has erred while holding that stamp duty was payable on "Tasfianama" pursuant to which the property was distributed for which a proper sale-deed was required to be executed at subsequent stage and the question of direction for the preparation of decree and stamp paper does not arise. It is also pointed out that the exact nature of transaction could not be appreciated by the Courts below as no transaction whatsoever has taken place pursuance to the compromise executed between the parties. It is also argued that the learned Single Judge of Lahore High Court, Lahore has failed to comprehend the provisions of section 2(15) of the Stamp Act, 1899 which defines the "instrument of partition", ingredients whereof were never examined by the learned single Judge in chambers which resulted in grave prejudice as, by no stretch of imagination, the provisions as contained in Article 45 of the Stamp Act, 1899 could have been made applicable in the case of petitioner.
4. We have carefully examined the above mentioned contentions in the light of relevant provisions of the Stamp Act, 1899 and perused the judgments/decrees passed by the learned Civil Judge, the learned Additional District Judge, Lahore as well as the order impugned. The entire record has been thrashed out with the eminent assistance of learned Advocate Supreme Court. The prime contention of the learned Advocate Supreme Court on behalf of petitioner seems to be that decree on the basis of compromise distributing shares of the property in question among the legal heirs is not liable to any kind of stamp duty or any other duty. After having gone through Articles 45 and 58 of the Stamp Act, 1899 we are of the considered view that the above ,contention is fallacious and baseless. It is worth-mentioning that the petitioner had himself preferred a suit for administration of property pertaining to Kh.Muhammad Asif (deceased brother of the petitioner) and subsequently on the basis of compromise executed between the parties a decree was passed. The learned Advocate Supreme Court was pointedly asked that what could be the main object of the decree except partition of the property and distribution of shares among the legal heirs and therefore how the stamp duty could have been avoided? No satisfactory answer could be given by the learned Advocate Supreme Court except that the decree in question was a compromise decree which cannot be equated to that of administration decree. It is well-entrenched legal proposition that a decree for partition is an "instrument of partition" and as such has to be engrossed on stamp paper and in case it is not done the decree can neither be executed nor could be acted upon. In this regard we are fortified by the dictum as laid down in Smt. Kotapalli Mahalakshmamma v. Ganeshwara Rao (AIR 1926 Pat. 154), Dilbagh Rai v. Mt. Teka Devi AIR 1932 Lah.
249. Admittedly the object of the decree in question was distribution of the shares among the legal heirs. Had it not been in field the question of distribution/partition of property would have not arisen. The stamp duty is always levied on the instrument and not on the transaction. A similar proposition was discussed in case Smt. K. Mahalakshmamma v. Geneshwara Rao (AIR 1960 Andhra Pradesh. 54, wherein it was held as under:--- "8. We may also point out that it is the duty of the Court when passing final decrees for partition to call upon the parties to furnish the requisite stamp paper for engrossing the decree on such stamp paper. The decree-holder cannot be made to suffer for the omission of the Court in making such direction. The lower Court has referred to the case of Satyanandam v. P. Namayya, AIR 1938 Mad.
307. There the question was whether a particular decree passed by the Court was final decree or a preliminary decree having regard to the terms of the decree. The C learned Judges, Burn and Lakshman Rao, JJ., construing the provisions of the decreed held that it was a final order of a Court for effecting a partition falling within the terms of S.2(15) of the Stamp Act. They further held that the furnishing of the requisite stamp at a later stage could not be allowed to have a retrospective effect so as to regard the execution application filed after expiry of the period of limitation to be within time. That case has no application to the facts of the present case."
5. We have also adverted to the contention of the learned Advocate Supreme Court that the "instrument of partition" as defined in section 2(15) of the Stamp Act, 1899 has been misinterpreted and misconstrued by the forums below. Let we mention here that "the real test of "instrument of- partition" is whether there was any property of which the parties were co-owners and the property was being divided by that deed in severalty, entitling the parties to the separate enjoyment of that property." West Punjab Government v. Gain Chand AIR [36] 1949 Lahore 126.
The main ingredients of "instrument of partition" as defined in section 2(15) of the Stamp Act, 1899 are as follows:-- "(i) There must be some property movable or immovable, or movable and immovable both.
(ii) There must be more than one owner of the property.
(iii) The document must, on the face of it, show that the co-owners of a particular property have agreed to divide that property or have actually divided the property."
6. We have examined the case of petitioner on the basis of ingredients as mentioned hereinabove which constitutes "instrument of partition" and we are of the considered opinion that the property in question could have only been distributed/partitioned pursuant to the decree irrespective of the fact whether it was administration decree or a compromise decree and hence it was to be engrossed on the stamp papers and duty could not have been avoided by the petitioner. It is worth-mentioning that "the Stamp Act is a purely fiscal regulation. Its sole object is to increase the revenue and all its provisions must be construed as having in view the protection of revenue. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The whole object is to see that the revenue of the state are realized to the utmost extent. Once the object is secured according to law, the party staking his claim on the instrument, will not be defeated on the ground of initial defect in the instrument. (Hindustan Steel Ltd. v. Dilip Construction Co. AIR 1969 SC 1238). It transpired from the scrutiny of record and contentions of the learned Advocate Supreme Court on behalf of petitioner that a futile attempt has been made to avoid the stamp duty by misinterpreting, misconstruing and exploiting Articles 45 and 58 of the Stamp Act, 1899 provisions whereof are capable enough to meet all sort of such eventualities and stamp duty cannot be avoided. The petitioner should have not moved the Court by filing a suit for distribution/partition of the property in question and once it was done and decree passed, the question to avoid the stamp duty does not arise. The order impugned being well based hardly warrants interference. The petition being meritless is dismissed and leave refused.