P L D 1977 Karachi 551 (PLP)

FAKHRUDDIN G. EBRAHIM, J.‑--The appellants/plaintiffs filed a suit being Suit No. 29 of 1967 in this Court against the defendant in which the prayers were as follows;

(a) hold and declare that late Mr. Moquimuddin Ansari was the real owner of the property bearing No. 36, situate in Muslimabad Coopera tive Housing Society, Ltd., Karachi, with construction thereon and the defendant No. 1 is merely a benemidar of the said Moquimuddin Aneari ; (b) partition the property in question by metes and bounds in accordance with the shares of the parties under Muslim Law and allot each of them their respective share in severalty ; (c) grant possession to the plaintiffs and the defendants of their respective allotments according to the shares of each in the property ; Or (d) In case the partition of the property cannot tie reasonably or conveniently made, in the alternative direct that the property be put to sale by public auction or otherwise and shares of the plaintiff's be paid from out of the sale proceeds ; (e) Grant each other relief and pass such other order as the Curt may deem fit in the circumstances of the case. (f`) Grant costs of the suit. (g) The plaintiffs further pray that if necessary, this Hon'ble Court be pleased to pass preliminary decree in the above suit before passing final decree as prayed for hereinabove." The Issues Nos. 9 and 10 in the suit read as follows :‑-- "Issue No. 9..‑..What should the preliminary decree be Issue No. 10.‑What should the final decree be ?" and were answered by the learned Judge in the following terms :‑ "(6) Issues 9 and 10.‑In view of the above conclusions and there being numerous co‑sharers, it is a fit case for a decree declaring the rights of , several parties interested in the disputed property and giving necessary directions with respect to the said property. Accordingly, the rights of the heirs of the late Moquimuddin Ansari in the said property are declared as follows." (The learned Judge then went on to specify the shares of the parties which could not be reproduced); "(7).‑‑‑Since there are several co‑sharere, it would not be convenient to divide the disputed property between them by metes and bounds. It is, therefore, directed under section 2 of the Partition Act, 1893 (Act No. IV of 1893) read with order XX, rule 18(2), C. P. C. that the property be sold and its sale proceeds be distributed amongst the heirs of the late Moquimuddin Ansari in tire proportion specified above, but that it would be open to any co‑sharer to apply to the Court under section 3 of the Partition Act, 1893 for leave to buy at a valuation, which may be determined by the Court, the share or shares of the party or parties asking for sale. As regards costs, the plaintiffs shall be reimbursed out of the sale proceeds of the said property."

2. Following the decree the plaintiffs filed an execution application by which they sought sale of the property in dispute which was resisted ‑by the defendant on the ground that as the decree had not been drawn on requisite stamp paper as required by the Stamp Act it was not executable. The office note was

‑ "That the decree was a preliminary decree within the meaning of Order XX, rule 18(2), C. P. C. and after the sale is effected by some one to be appointed by the Court, a final decree should be prepared after recovery of court‑fees from the respective parties according to their shares and thereafter the sale proceeds can be distributed in execution." The matter came up before a learned Single Judge of this Court after notice to the Advocate‑General. Before the learned Single Judge the appellants contended that there was a final decree for sale to which the procedure laid down under section 7 of the Partition Act, 1893 read with rule 552 of the Sind Chief Court Rules (O. S.) will be applicable. The learned Advocate. General contended that there was a preliminary decree and a final order would be passed only after the property is sold and proceeds out of the same are distributed. The conclusion arrived at by the learned Judge was that though it was a preliminary decree directing the sale of the property and it assigns an act whereby the ultimate object of the partition of tire property is to ire achieved and therefore it was contended by the learned Advocate‑General as well as Mr. Nizam Ahmad, the learned counsel for the defendant, an instrument of partition within the meaning of the term defined in section 2(15) of the Stamp Act, 1899 to be stamped as such. The learned Judge went on to observe that the sale was only an interim measure and did not change the character of the decree from being that of partition.

3. In appeal before us, Mr. Kunwar Mukhtar Ahmad, the learned counsel for the appellants took up the position that the decree made was a preliminary decree as found by the learned Judge but is not an instrument of partition as defined in section 2(15) of the Stamp Act. The learned Advocate‑General also having reconsidered the matter is of the view that being a preliminary decree it was not an instrument of partition and, therefore, did not require to be stamped, as such. Mr. Nizam Ahmad the learned counsel for the respondent contended that whether or not it is a preliminary decree or a final decree it is in the present case an instrument of partition as defined in ‑Stamp Act which requires to be stamped under Article 45 of the Schedule to the Stamp Act.

4. Now, it is clear that in so far as the learned Judge who decreed the suit is concerned he not only acted in terms provided for in sub‑rule (2) of rule 18 of Order XX, C. P. C.. but expressly referred to this provision of the law in his judgment. He has declared the rights of the several parties interested in the property and having come to the conclusion that the property cannot be divided by metes and bounds given directions for its sale with liberty to any co‑sharer to apply to the Court under section 3 of the Partition Act for leave to buy at a valuation which may be determined by the Court, the share or shares of the party or parties asking for sale. It is not a final order for effecting the partition but only of sale which is one of the erodes of partitioning a property, which, in the language of the executing Court, was an act whereby the ultimate object of the partition of the property was to be achieved. It is not a "final order effecting the partition" within the meaning of the expression defined in section 2(15) of the Stamp Act for it neither makes an effectual partition nor vests specific poverties in the sharers. To make an order chargeable wish stamp duty under section 2(15) of the Stamp Act it must effect an actual division of they property. The whole confusion in this case has arisen by an unnecessary execution application by the appellants for all that was required by them was to apply to the trial Court which bad passed the decree for partition of the property to take further proceedings in terms directed by him under such rule (2) of rule 18 of Order XX, C. P. C. Proceedings to effect partition, in this case, by sale, are not execution proceedings.

5. The result, therefore, is that this appeal is allowed but in the circumstances there will be no order as to cost. S. Q. Appeal allowed.