1. ' This is an office reference whereby the final decree passed in the Administration Suit filed by the plaintiff is being treated as partition decree and the parties are required to pay stamp duty in accordance with section 3 read with section 5 of the Schedule 1 of the Stamp Act. It is also pointed out that in addition to the stamp duty the plaintiff is liable to pay Court Fees under section 7(4) (f) of the Court Fees Act. Mr. S. Nasiruddin the learned counsel for the plaintiffs has opposed this reference and contended that the plaintiffs are liable to pay only the Court Fee and no stamp duty is leviable on a decree passed in an Administration Suit. Notice was issued to the Advocate- General who has appeared and argued the matter.
2. ' Mr. Saeed A. Shaikh the learned Advocate-General has referred to section 2(15) of the Stamp Act which defines "instrument of partition" and relying upon AIR 1946 Sind 72 has contended that the plaintiffs are liable to pay court-fee as well as the stamp duty. He has also referred to Gopal Das Hassanand others v. Dhandrajmal Hassanand and others (l).
3. ' Mr. S. Nasiruddin opposing this contention has contended that an Administration Suit and a suit for partition are of different nature and the plaintiffs are only liable to pay court-fee as required in a suit for accounts. The learned counsel has referred to Mst. Amir Bi v. A. Rahim Sahib and others (2), where the widow of a deceased Muslim, filed a suit praying that the extent of property of deceased may be ascertained, that the outstandings may realised, that his estate may be administered, that her Mehr may be paid and that the residue divisible among his heirs may be divided according to their shares under the law, it was held to be an Administration suit and not a partition suit.
4. Reference was also made to Abdul Ali and others v. Mirza Waqar (3), where it was observed that "administration suit is essentially different from suits of partition brought by an heir of Muhammadan or any other person." The learned counsel referred to Katrak & Co. V. Jerbai und others (4) and Niripendra Ballar Paltons v. Kamal Parsad Rai and others (5), {{FOOT NOTE}}
(1) AIR 1945 Sind 11 (2) AIR 1928 Mad. 760
(3) AIR 1945 Oudh 37 (4) AIR 1946 Sind 72
(5) AIR 1970 Cal. 479 {{FOOT NOTE}} where it was held that for purposes of court-fees suit for administration of property is to be treated as a suit for accounts within the meaning of section 7(4) (f) of the Court Fees Act. The proposition of law enunciated by the aforestated authorities is no doubt to be accepted as correct. An administration suit is different from a partition suit. This difference is impliedly recognised by the provision of Order XX, rule 13, C. P. C. Which provides for a mode of passing a decree in an Administration suit. On the other hand Order XX, rule 18 provides for passing a decree in a suit for partition of property or separate possession of share therein. The learned counsel for the plaintiffs has no doubt been able to establish that both the suits are different in nature and for the purposes of court-fees suit for administration is to be treated as a suit for accounts and, therefore section 7(4) (f) will give the payment of court-fees.
5. ' The next question that has been raised by the office is in respect of payment of stamp duty. The learned counsel has not been able to cite any authority in which it has been stated that where court-fee has been paid on a suit for administration no stamp duty is payable on the final decree.
6. ' Mr. Saeed A. Shaikh the learned Advocate-General has referred to AIR 1945 Sind 11 but in this case no observation has been made with regard to the payment of stamp duty. In fact this suit was filed for administration and partition of property. Likewise the other case referred by the learned Advocate-General does not support him in this context. Both the cases can only be an authority for the proposition that court-fee as provided by section 7(4) (f) of Court Fees Act is payable on administration suit.
7. ' In order to establish whether stamp duty is payable on a decree passed in an administration suit it is necessary first to examine the nature of administration suit and the requirement of law charging stamp duty on "instrument of partition." In Syed Mahdi Hussain Shah v. Mst. Shadoo Bibi and others (I), the Administration suit has been described as follows :- "The object of an administration suit is the distribution of assets between more than one person and if the defendants to a suit be only trespassers and the plaintiff is the person solely entitled there can be no administration suit by such a plaintiff against such defendants."
8. ' It was further held :- "While an administration suit is not a remedy for getting possession only from those who claim the property in their possession in their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit."
9. ' Again in Yousuf Abbas v, Ismat Mustafa (2), the following observation was made :- "In its broad sense, administration include the collection of assets of a deceased, the payment of debts and the distribution of the residue to persons beneficially entitled under the will of the testator on his intestacy. The Madras High Court held in Mst. Amir Bi v. Abdul Rahim Sahib and others AIR 1928 Mad. 760 that a Muslim "widow's suit in which she asks that the extent of the property
(I) P if D 1902 SC 291 (2) PLD 1968 Kar, 480 of her deceased husband may be ascertained, that his outstandings may be realized, that the estate may be administered, that her Mehr may be paid and that the residue may be divided between the heirs according to their shares under the law, is an administration suit. The same view was taken by the High Court of Lahore in Mahboob Alan' v. Razia Beghm and others PLD 1949 Lah.
10. 263 in which both Cornelius and Kayani, JJ (as they then were) held that in an administration suit the steps are: ascertainment of the debts due by the deceased, ascertainment of legacies, payment of deceased's funeral and testamentary expenses, enquiry into the deceased's assets, and enquiry and account of what, if any, was the plaintiff entitled to as next-of-kin of the intestate, and the distribution of the residue among the successors of the deceased, and that the Court when passing a preliminary decree in any administration suit, may give such directions and order such enquiries to be made as it may consider appropriate in the circumstances of the case. In the narrower sense, however, administration means only management of the deceased's estate, that is, only collection of his assets and payment of his debts."
11. An administration suit involves management of the property of a deceased person, the enquiry about the assets of the deceased, the determination of liabilities of the deceased, collection, realization and preservation of assets, and after the assets have been realised, liabilities have been paid if any asset is found in surplus it is to be distributed among the legal heirs and next-of-kin.
12. Under a decree passed in an administration suit the Court takes over charge of administering the property and the entire process of realisation, payment, settlement and distribution has to be made under the supervision of the Court. Having determined the nature of an administration suit it has now to be considered whether a decree passed in such suit is liable to be stamped under the Stamp Act.
13. The contention that as the court-fee has been paid no stamp duty is required does not seem to be correct. Court-fee is payable under th Court Fees Act, whereas the stamp duty is chargeable under the Stamp Act. These are two different enactments dealing with the payment of court-fees and stamp duty in given circumstances and situations. Unless there is a bar under law, the plaintiff's contention that where a particular claim or document falls within the ambit of both the Acts only court-fee is payable and no stamp duty is chargeable cannot be upheld. The learned counsel for the parties have not pointed out to any such provision of law.
14. ' On "instrument of partition" stamp duty is chargeable under the Stamp -Act. Section 2(15) defines "Instrument of Partition" as follows
(15) "instrument of partition" means any instrument whereby 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."
15. Under this provision if by an instrument the co-owners of any property divide or agree to divide such property in definite separate shares, it will be treated an instrument of partition. The definition also covers the order passed by Revenue Authority or any civil Court for effecting a partition. The award of an arbitrator directing a partition is also to be treated as instrument of partition. At the moment the dispute is only in respect of final order passed by the civil Court. If a final order of the civil Court effecting partition has been made then such an order/decree falls within the definition of section 2(15) of the Stamp Act and requires to be stamped under Schedule 1, Article 45 of the said Act. Therefore, unless a decree effects a partition the stamp duty will not be charged. In this regard reference can be made to Kersaji Dhanjibhar v. Barjorji Bhikhaji and others (1), where referring to section 2(15), Stamp Act following observation was made : "The definition in the Stamp Act does not say "an order in a partition suit". An order for effecting a partition might be made in an administration suit, and if so in our opinion it would come within the definition."
16. Therefore, if in a suit for administration a decree is passed making an effectual portion vesting specific property in the sharers, then such a decree will be covered by section 2(15) of the Stamp Act. In such a situation the stamp duty will be payable. Needless to mention here that section 2(15)1, covers movable as well as immovable properties. In the present case, the decree passed by the civil Court does not effect partition of property There are certain properties which are yet to be realized and there are certain acts which are to be performed in furtherance of the decree. The decree passed in the present suit is not covered by section 2(15) of the Stamp Act, and, therefore, no stamp duty is payable on it. Office reference disallowed. (1) AIR 1943 Bom. 435