2005 PLP 2503 (YLR)

MUHAMMAD KHALID ALVI, J.

The brief facts out of which present appeal arises are that the appellant filed suit for Rendition of Account against the defendant-respondent. The preliminary decree was passed by the learned trial Court. Subsequently, the Local Commissioner was appointed. After receiving the report of learned Local Commissioner, suit was finally decreed on 26-6-2002 in the sum of Rs.30,43,824.46 in favour of the appellant and against the respondent-defendant. The appellant is only aggrieved by the observations made by the learned trial Court in para. No.10 of the judgment, which is, reproduced as follow:-- "In view of above discussion, the plaintiff's suit As hereby finally decreed ex parte in his favour to the tune of Rs.30,43,824.46. Report of the learned Local Commissioner will be considered as part of this decree on which stamp duty at the rate of 4% is chargeable as per concerned law. Therefore, the plaintiff is directed A to deposit the stamp duty with rate of 4% of the amount decreed within one month of the passing of this decree/final judgment, failing which the decree shall not be executable. The parties are left to bear their own costs. "

2. The learned counsel of the appellant submits that according to Article 45 of the Schedule read with section 2(15) of Stamp Act, 1899, only partition decree is liable for stamp duty. The instant case is one of Rendition of Accounts; therefore, the decree was not subjected to this levy.

3. The learned counsel of the respondent-defendant had been appearing on some dates. It appears that the defendant has not challenged the said decree passed against him, which has attained finality, and question involved in the instant case is to the extent of stamp duty, which is to be paid by the appellant to the State, therefore, respondent/defendant has no interest in the result of instant appeal.

4. On the other hand, learned Additional Advocate-General relied upon "Jai Narayan v. Yasin Khan AIR 1955 Hyderabad 17 and "Pandivi Satyanandam and others v. Paramkusan Nammayya and another" AIR 1938 (sic)

307. It is contended that the suit for Rendition of Account also relates to the property, therefore, the same falls within parameters of Article 45 of the Schedule read with section 2(15) of the Stamp Act, 1899.

5. Arguments heard and record perused.

6. The relevant provisions of law applicable in the instant case and section 2(15) and Article 45 of the Schedule of the Stamp Act, 1899. The same are reproduced hereunder for ready reference:--

45. Partition- The amount of the value of Instrument of the separated share or defined by shares of the property section 2(15). Explanation:-The largest share remaining after the property is partitioned for if there are two or more shares of equal value and not smaller than any of the other shares, than one of such equal shares shall be deemed to be that from which other shares are separated: Provided always that:--(a) When an instrument of partition containing an agreement to divide property in severalty is executed and a partition is effected in." Section 2(15) "Instrument of partition" Instrument of means any instrument partition:-- 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." The levy is not restricted to immovable property. The phrase "any property" used in section 2(15) of the Stamp Act clearly envisages that the B properties of both types movable and immovable are included. The said section is interpreted in "Muhammad Suleman Malik's case" PLD 1983 Karachi 382 and laid down the following principle:-- "Needless to mention here that section 2(15) covers movable as well as immovable property. " In the suit for Rendition of Account, if some immovable amounts are found to be due towards the plaintiff and decree is drawn in his favour then it becomes an instrument of partition within the meaning of above provision of law. Thus, in view of Article 45 of the Stamp Act, it becomes leviable for the duty. The reference of law made by the learned Additional Advocate-General is fully applicable in the facts of present case as well as law laid down by the Superior Courts in the following judgments: "Abdul Hussain Khan v. Mst. Mahmudi Begum etc." AIR 1935 Lahore 364. "Ram Narain Kaul v. Mt. Bishan Rani and others" AIR 1938 Lahore 321. "Hamirmal Mehta v. Samrathmal Metha and others" AIR 1955 AJMER 52 (Vol.42). "Board of Revenue Madras v. Moldeen Rowther, etc." AIR 1956 Madras 207. "Smt. Bittan Devi etc. v. Rudra Sen Rajpal and others" AIR 1966 Allahabad 601. "Aram Moquim Ansari v. Mst. Asghari Begum" PLD 1976 Karachi

542. It is pertinent to mention here that the appellant has filed suit for Rendition of Account against the respondent/defendant, which was finally decreed in favour of the appellant to the tune of Rs.30,43,824.46, therefore, such type of decree is termed as instrument of partition. It is also settled principle of law that final decree as mentioned above, has become instrument of partition automatically in view of section 2(15) of the aforesaid Act on the well-known principle that document must be read as a whole, therefore, in case, final judgment and decree be read as a whole, then there is no other conclusion except that it is partition decree, therefore, the findings of the learned trial Court given in paragraph No.10 reproduced above, is hereby upheld. In view of what has been discussed above, this appeal has no substance and the same is dismissed. S.A.K./F-99/L Appeal dismissed.