' The parties to this civil revision are the children of Muhammad Sharif deceased. On the death of Muhammad Sharif they got involved in litigation. A suit was filed by respondent No,1 for separate possession of her share in her father's estate by partition. The suits remained pending when the parties entered into a compromise which was got incorporated by the learned trial Court on 18-2- 2000. All the suits were decided on terms stated in the said order. The share of the respondent No,1 vis-a-vis the said suit was adjusted against a payment in cash of Rs,54,30.000 to be paid by the petitioner to the respondent No,1. A family settlement already arrived at between the parties in the year 1991 was also affirmed. The petitioner was also directed to pay a sum of 11,200 to Muhammad Anwar. The husband of the respondent No,1. The petitioner was found entitled to the transfer of some plots in Mustafa Town, Lahore exclusively.
2. Upon the failure of the petitioner to pay the said amount within the time stipulated in the consent decree, the respondent No,1 filed an execution petition. The petitioner raised an objection that the decree having been passed in a partition suit whereby the share of the respondent No,1 stands separated, it cannot be executed without payment of stamp duty in the prescribed manner and at the prescribed rate. The objection was resisted on behalf of the respondent No,1 with the contention that it was a money decree. Vide order, dated 22-5-2002 the objection petition was dismissed but the decree-holder was directed to pay court-fee of Rs,15,000.
3. Learned counsel for the petitioned contends that the decree was passed, inter alia, in a partition suit and as such could not have been executed without payment of the stamp duty in the manner prescribed. Reliance is placed on the case of MRs, Sahib-un-Nisa and others v. MRs, Mehmood Begum PLD 1959 (W.P.) Lah. 511 and Gopi Mal v. Vidya Wanti and others AIR 1942 Lah.
260. The attorney of the respondent, on the other hand, reiterates the position taken by him before the learned trial Court to the effect that it is a money decree and as such not stamp duty but court-fee will be payable on the plaint.
4. I have given some thought to the respective contentions of the parties. The said judgment of this Court which reliance has been placed on a Full Bench judgment of this Court does go to support the contention raised by the learned counsel for the petitioner inasmuch as when he states that a decree in a partition suit cannot be executed without payment of stamp duty. I am also not inclined to agree with the Attorney of the respondent when he says that it is to be deemed to be a money decree. Admittedly the decree has been passed in a partition suit and the relevant portions reproduced by me above do go to show that the respondent No,1 accepted cash amount in lieu of her share which thus stood separated inasmuch as she stands ousted from the joint property to the said extent. However the matter does not end here. It is but settled that in a partition suit every party is a decree-holder and judgment-debtor at the same time or to put it another way every party to a partition suit is a plaintiff or defendant as the case may be. Going by the contention of the learned counsel for the petitioner as supported by the judgments being relied upon by him, the partition decree would be treated an instrument of partition and consequently the burden to pay the stamp duty is to be shared by all the parties to the suit. I may here refer to section 29 of the Stamp Act which provides that the expense of providing the proper stamp duty shall be borne, in the case of an instrument of partition, by the parties thereto in proportion to their respective share in the whole property partitioned or when the partition is made in execution of an order passed by Revenue Authority or Civil Court or Arbitrator, in such proportion An Authority, Court or Arbitrator directs.
5. Under Article 45, Schedule-1 to the Stamp Act, 1899 the duty is payable @ Rs,3% for the amount or value of the separated share or shares of the property. Admittedly the value of the separated share is Rs,54, 30,000. The amount of duty payable comes to Rs,1,62,900. ID The deceased was survived by 2 sons and 4 daughters (parties hereto). Each son has 1/4th share and each daughter 1/8th share.
The amount to be paid by the respondent No,1, comes to Rs,20, 362.50 and the amount payable by the petitioner comes to Rs,40,725.00. Similarly the other son/his L.Rs, and the other daughters have to pay their shares. Now as per terms the decree the other son and the other 3 daughters have surrendered their shares in favour of the petitioner in lieu of the said payment of Rs,54,30,000 to be made by him to the respondent No,l. This being an agreement to the contrary, the entire balance amount shall be paid by the petitioner.
6.In view of the above discussion this civil revision is disposed of with a direction to the respondent No,1 to pay stamp duty to the tune of Rs,20,362.50 and to the petitioner to pay the balance stamp duty of Rs,1,42,537.50 on or before 26-6-2002. On the said date the parties shall also appear before the learned trial Court/ Executing Court. In case the petitioner fails to pay his share of the stamp duty, the respondent No,1 shall be entitled to pay the entire stamp duty and to recover the balance amount over and above her share of Rs,20,362.50 from the petitioner in execution of this very decree. No orders as to costs.
7.A copy of this order be immediately remitted to the learned trial Court.