' This is an office reference whereby the order dated 21-12-1992, in suit for declaration, injunction, administration, accounts, partition and possession filed by the plaintiff, on the compromise application filed by the parties, has been treated by office as a "partition decree" and the parties are required to supply the market value of the properties to enable the office to assess stamps duty and court-fee payable by the parties and to engross the decree thereon in accordance with section 3 read with section 6 as well as under Article 45 of Schedule 1 of the Stamp Act, as the instrument of partition is subject to the stamp duty.
2. The facts which are relevant for the disposal of the office reference are that one Rafiq Ahmed acquired the properties movable and immovable and also was in mercantile activities in Karachi and died at Karachi on or about 6th December, 1989. Mst. Sameera Rafique, the plaintiff No,1 is second widow and plaintiffs Nos,2 and 3 are son and daughter of deceased Rafique Ahmed out of wedlock of Mst. Sameera Ahmed, the plaintiff No,1, whereas, defendant No,1 is first widow of deceased Rafique Ahmed, out of this wedlock (Mukhtar Ahmed, (defendant No,2), Mst. Naseem, (defendant No,3), Mst. Sameera, (defendant No,4), Michel Rukhsana Ahmed (defendant No,5), are son and daughters, whereas, Mst. Najma Abid is daughter of deceased Rafique Ahmed born out of wedlock of one Mst. Safina Begum, and Rafiue Ahmed. Defendant Khalid Mehmood Qureshi claims to be the owner of property bearing No,F/48, Block No,5 Clifton, Karachi.
3. Apart from the. Present suit, Suits Nos.185/90, 232/90, 597/90 and 361/91 were also filed by the parties in the proceedings. All the above suits were consolidated with the present suit as the suits relate to the administration of the estate and properties left by the deceased Rafique Ahmed. All the suits were withdrawn except the Suit No,212/90, under the compromise application, whereby, the present suit was compromised under Order 23, Rule 3, C.P.C.
4. The properties were divided into lots, first lot came to plaintiffs Nos.2 and 3 namely, Danish Rafique and Sumbel Rafique exclusively in proportion of two parts to Danish Rafique and one part to Sumbel Rafique in terms of para. 1 of the compromise application and The following property came to their share.
(I) (a) Plot of land with bungalow standing thereon along with all furniture and fittings and movable therein contained, bearing No,S.II, 17-Staff Lines, measuring 250 sq. Yds., Phase II, Defence Housing Authority, Karachi.
(b) Plot of land with a bungalow thereon bearing No,F-48/II measuring 666 sq.Yds, Park Lane, Block 'V', Clifton, Karachi having three sub-Plots Nos.3 and 4.
(c) A plot measuring 2.67 acres in Deh Tehsir, District Karachi Central for Poultry Farm.
(d) The amount deposited by defendants 1 to 4 (up to December, 1992) in Court to be paid to plaintiff No,1 towards their maintenance.
' The defendant No,7 namely. Khalid Qureshi, in whose name the property Serial No,(b) stands, was required to sign all necessary papers for effecting mutation in the records in favour of Danish Rafique and Sumbel, plaintiffs Nos.2 and 3.
11 Second lot viz plot of land bearing No,71/II, Commercial Street No,5 measuring 297 sq.Yds. In Phase 'IV' of D.H.A. Karachi came to plaintiff No,I namely Sameera Rafique, as well as, Toyota Car No,232-594, Model 1979. However, she was required to pay. Rs,12,50,000 to Najma Abid, defendant No,6 in terms of clause of the compromise application. III. Third lot, Flat No,13-B in Dunes Apartment, Kehkashan, Clifton, Karachi vest in Mst. Najma Abid, the defendant No,6 in terms of the clause 3 of the compromise application.
(1) Forth lot, the Hotel Royal City, Karachi along with its business licence, furniture, fittings, vehicles Ford Registration No,LSA-250 Suzuki Pick-up No,CE. 2203 (3) Toyota Hiace CE. 6529 (4) Toyota Hiace CE. 2204 (5) Suzuki Van, CE. 0916 and contracts and ownership thereof in the building and land on Plot No,208/1, Artillery Maidan Quarters of City of Karachi exclusively went to defendant No,1 namely, Madeline Katherine Ahmed, defendant No,2 namely Paul Mukhtar Ahmed, defendant No,3 namely Naseem alias Debora Helen Naseem Zaidi, defendant No,4 namely Sameena Ahmed alias Beverly Jane Sameena Ahmed and defendant No,5 namely Michelle Bernade the Rukhsana Ahmed in the proportion of three parts to defendant No,1 namely Medeline Katherine Ahmed two parts to defendant No,2 namely Paul Mukhtar Ahmed and one part each of defendants Nos.3, 4 and 5. The defendant Medeline Katherine Ahmed also discharged the estate of deceased Rafique Ahmed in respect of all the monies given and contribution made by her in purchase and establishment of the said hotel in terms of clause (4) of the compromise application. V. Fifth lot viz Monies lying in Account No,1626 and Account No,645 in United Bank Ltd., Sohrab Katrack Road Branch Karachi, Account No,2144-426, Account No,2143-65 with Habib Bank Ltd., Preedy Street Branch, Saddar, Karachi and Locker No,127 with the contents lying therein to defendant No,2 Paul Mukhtar Ahmed exclusively in terms of clause (5) of the compromise application. VI. 22500 shares of Pak Suzuki in the name of Khalid Qureshi and Sadiq Qureshi and Alifdin, belongs to them. VII. 7500 shares of Pak Suzuki in the name of Paul Mukhtar Ahmed (defendant No,2) was transferred in the name of Khalid Qureshi, (the defendant No,7) and Paul Mukhtar Ahmed was required to sign the transfer deed in favour of Khalid Qureshi.
' The parties under clauses 6 and 7 were also entitled to divide, bonus share .1 1 right share relating thereto.
5. On the office reference pursuant the notice issued to parties and Advocate General, Mr. Iqbal Kazi learned counsel to the defendants,. Nos.1 to 5 appeared and facilitated the Court with his valuable assistance, whereas, none appeared on behalf of Advocate-General though the question of Government Revenue viz the payment of stamp duty was involved.
6. Mr. Iqbal Kazi, learned counsel for the defendant contended that only instrument whereby co- owner of any property divide or agreed to divide such property in severally including a final order for effecting' a partition by any Civil Court, could be termed to be an "instrument of partition" as defined in section 2(15) of Stamp Act and could be subject to stamp duty under Article, 45 of Schedule 1 of the Stamp Act.
7. Mr. Iqbal Kazi further contended that the final order must effect actual partition between co- sharers in order to bring the documents subject to stamp duty. He urged that though the suit was for partition but the same was not between the co-sharers. He pointed out that under the compromise, the other defendants namely, Khalid Qureshi, Sadiq Qureshi and Alf Din, who are not the co-sharer got the shares of Pak. Suzuki which were in their name, as well as, in the name of defendant No,2, thus the order embrasses movables owned by other than co-sharer as such the order cannot be said to be 'instrument of partition" and the decree will not fall under the provision of rule 18 of Order 20, C.P.C. He also pointed out that on account of difficulty faced in partitioning of the property by meets and bounds, the Partition Act was enacted and under section 2 of the Partition Act, the property can be sold and sale proceeds of such sale can be distributed amongst the sharer in proportion of their share, wherever the partition of the property is not possible. He further contended that the order must effect the partition.
8. He also pointed out that in case of Ehsan Mugeentuddin v. Mst. Asghari Bego (PLD 1976 Kar. 542).
The objection to executable of the decree for want of stamp duty under section 2(15) of the Stamp Act was maintained by learned Judge in Chamber by observing that the preliminary decree directing the sale of the property only-assigned an act whereby, the ultimate object of the partition of the property was to be achieved. As such an "instrument of partition" within the meaning of term defined in section 2(15) of the Stamp Act. Mr. Iqbal Kazi, further pointed out that the above view of the learned Judge was not approved by the Division Bench on appeal in the same case Ehsan Muqeemuddin v. Asghari Begum (PLD 1977, Kar. 551), by observing that to make an order chargeable with stamp duty under section 2(15)of the Stamp Act it must effect an actual division of the property.
9. Mr. Iqbal Kazi learned counsel for the defendants ' also referred the case of Muhammad Suleman Malik v. Royal Trust Corporation of Canada and others (PLD 1983 Kar. 252) wherein, the office treating final decree as "an instrument of partition" passed in the administration suit required the parties to pay stamp duty in accordance with Schedule 1 of the Stamp Act, addition of stamp duty the plaintiff was also required to pay the court-fee.
' The learned Advocate-General took the plea that the plaintiffs are liable to pay the court-fee as well as stamp duty relying on Katrak & Co. v. Jerbir and others AIR 1946 Sindh 72 as well as Gopal Das Masanand and others Dhandry Mal Hasanand AIR 1945, Sindh 11. The reference was opposed by the plaintiff's counsel on the ground that an administration suit and a suit for partition are of different nature and the plaintiff is required to pay the court-fee as required in suit for accounts only. The learned Judge, after considering the import of the terms "instrument of partition" used in subsection (15) of section 2 of the Stamp Act as well as by referring the view expressed -in case of Kesagi Dhanbir v. Barjorji Bhikhji and others AIR 1943 Bombay, Page 435, was of the view that if in a suit for administration, a decree is passed making an effectual partition fixing specific property in the sharer then such a decree will be covered by the section 2(15) of the Stamp Act. In such a situation, the stamp duty will be payable. The reference was disallowed by concluding that decree passed by the Court does not effect partition of the property, thus not covered by section 2(15) of the Stamp Act.
10. There is no cavil to the proposition enunciated in the above cases that an order for sale of the property and decree not effecting the partition of the, property cannot be termed to be the instrument of partition under the provision of section 2(15) of the Stamp Act. As such are not subject to the duty under Article 45 of the Schedule 1 of the Stamp Act.
11. The short question that falls for the consideration is, whether the order passed by this Court dated 21-12-1992, on the basis of compromise application filed by the parties, is an "instrument of partition" within the meaning of section 2(15) of the Stamp Act. The instrument of partition as defined in above section reads thus:-- "An instrument of partition is any instrument whereby co-owner of any property divide or agree to divide such property, and includes also a final order for effecting a partition passed by any revenue authority or any Civil Court and an award by any arbitrator directing a partition."
' Under this provision, if by an instrument, the co-owner of any property divide or agree to divide such property in definite separate share, it will be treated as an "instrument of partition". The definition also covers, inter alia, an order passed by Civil Court effecting partition of the property.
12. In Board of Revenue v. Alagappa AIR 1937 Madras, 308, the special Bench of Madras High Court (now Channai) consisting of Vardechirar, Burn, Pandurang Rao, JJ., on the basis of above definition of "instrument of partition" held that; "In the definition of an 'instrument of partition' as defined in section 2(15) the true antithesis is between the original common ownership and the subsequent conscession of that common ownership. Whether the substituted ownership is created by way of allotment to each individual amongst the original common owners or to groups of individual is not really the point for consideration but whether the original common ownership had ceased to exist or not."
' Learned Bench further held that "whether the document is deed of partition within the meaning of section 2(15) is to be determined by its language. The real test of instrument of partition is that whether there was any property of which the parties were co-owner and the property was being divided by that deed in severalty".
13. In Y. Laxmi Prasanna v. Y. Narasayya and another AIR 1975 Andhra Pradesh, 91, the expression "co-owners" occurring in section 2(15) was interpreted by the Division Bench. The facts were that each party claimed to be the absolute owner of the suit property, the parties, however, ultimately entered into a compromise whereby they purported to divide property in specific shares as co-owners. The learned Judges held that "the expression "co-owners", occurring in section 2(15) of Indian Stamp Act, has got wider connotation and includes all kinds of ownerships and is not confined to strict sense of that term. The parties need not really be co-owners of the property in the eye of law. It would suffice if they purported to be co-owner of the property and divide or agree to divide it in severalty, it would bring the instrument within the definition of an instrument of partition".
14. In the case before me although each party claimed to be owner of the properties to the exclusion of the other party but they (plaintiffs and defendants Nos.1 to 6) purported to divide the properties as co-sharer to the extent and in terms of clauses (1) to (5) of the compromise application. The order, on the basis of compromise application passed by this Court has put an end to the original common ownership and substituted it by the ownership of the lots assigned to each party in severalty. Specific lots have been allotted' to plaintiffs and defendants Nos.1 to 6 and they have accepted the ownership to the exclusion of others. Thus the order to the extent of clauses (1) to (5) between the plaintiffs and defendants Nos. 1 to 6 as stated earlier falls within the definition of instrument of partition in terms of section 2(15) of the Stamp Act. Needless to mention that section 2(15) covers movable as well as immovable property. Thus, liable to stamp duty under Article 45 of Schedule 1 of the Stamp Act, with following two modifications:-
(i) Property at St. No, B of clause (1), which has been released by defendant No,7 in favour of plaintiffs Nos.2 and 3 to that extent the order will be treated as "deed of release" subject to stamp duty under Article 55 Schedule 1 of the Stamp Act, as ruled in case of Jiban Kaur v. Oovindas AIR 1915 Allahabad, 421, in the words of Full Bench of Allahabad High Court consisting of three Judges that "where each of two rival claimants to a property claim to be sole and full owner of the property but in order to avoid litigation agree to release in favour of the other certain portion of it the deed executed by each of them is a "deed of release" liable to stamp duty under Article 55 Schedule 1 of the Stamp Act". Conversely, the defendant No,2 has transferred 7500 shares of Pak. Suzuki to defendant No,7, to that extent the order will be treated as a deed of, release subject to the stamp duty under Article 55 of Schedule 1 of the Stamp Act.
(ii) According to the terms of the compromise application, defendant No,1, Madline Rafique Ahmed got the adjustment of her investment in the business in the lot which came in =her share (amount has not been specified); she can get the adjustment of the said amount while calculating the value of the property which came to her share.
15. So far reference regarding as payment of court-fee is concerned, the maximum court-fee of Rs,15,000 has been affixed on the plaint as such the office reference to the extent of court-fee is disallowed.
16. Resultantly, the office reference to the extent of properties mentioned in paras. Nos.I to 5 and 7 of Compromise application is allowed, the parties are directed to submit the valuation within a month from the date of order to enable the office to calculate the stamp duty to be paid by the parties so that the decree be engrossed on non judicial stamp paper. .