PLD 1949 Lahore 240 (PLP)

Muhammad Sharif, J.‑This is a reference under section 57 of the Stamp Act. The document in question was executed by Raizada Babu Gian Chand, on 10th of January 1931 in favour of his father Rai Bahadur Lala Diwan Chand Oberai and described as a deed of relinquish ment. The sole question for decision is whether it is an "instrument of partition" and liable to stamp duty as such. The "instrument of partition", as explained in section 2, sub section (15) of the Stamp Act means any instrument whereby co‑owners divide or agree to divide such property in severalty of any property 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 nature of the document is to be determined by its language. The document is divided into paragraphs. The executant is the eldest son by the first wife. It was stated that on the 1st of April 1926 the executant separated from the group of his father which included besides his father his other two sops from the second wife as members of the Joint Hindu Family of which his father was the Karta by means of fixation of shares and entries in the revenue papers and separation of the accounts of the joint Family firm from the private accounts. It goes on to say that in January 1928 an award was delivered by Rai Bahadur Lala Mangal Sen according to which some property was actually partitioned and parties were put in separate possession thereof. At that time a double‑storied house in Jhelum Civil Lines worth Rs. 35,000 was made the exclusive property of the executant and some other property detailed in paragraph 2 was separately allotted to the group of his father. In paragraph 4 it was stated that the executant had borrowed from the joint firm a sum of Rs. 30,961 and entered in his separate khata. In paragraph 6 it was noted that "my father has proposed to give me rupees ten thousand in cash and canal irrigated agricultural land worth Rs. 20,000 free from all kinds of encumbrances such as mortgage and debt so that I, the executant, can very easily maintain myself and carry on my business". According to paragraph 7, Rs. 1,000 was paid in lump sum by means of a cheque drawn upon the Imperial Bank, Peshawar Branch to equalise the difference in value between the house hold goods with the father's branch and with the executant. The jewellery and clothes already with the executant were left with him. In paragraph 9 the executant agreed that "I, Babu Gian Chand Oberai, have in lieu of the interest and rights mentioned above come to the following settlement with the group of my father and have completely separated myself from the joint family by means of this deed of relin quishment, a memorandum whereof is given below :‑ Para.

10. The debt due from me to the firm known as Rai Bahadur Lala Diwan Chand & Sons shall be considered to have been discharged and credited towards the joint accounts. Para.

11. I or any other person shall have no concern with the premium of or interest in the life; fire or motor insurance policies of my father. I, the executant, will have no concern whatsoever, either in the lifetime of my father, or after his death with the three policies effected by my father for the maintenance of my mother before his death. Para.

12. In lieu of the interests and rights mentioned in paras. 2, 6, 7, 8 and 10 above which I have acquired and whereby I have received property, cash etc. worth over rupees one lac, unencumbered with any debt, and in view of my having been relieved of the effect of liability of debt amounting to about rupees three lac.s and twenty‑five thousand (the liability for payment whereof has been taken by my father upon himself) I, the executant, hereby execute a deed of relinquishment to the effect, that I, the executant, will have no connection or concern whatso ever with the immovable property of the firm comprising residential and agricultural lands, houses etc. of every description situated (the names of various places given) except the property and rights referred to above which have. been given to me as also with the property and rights or household goods of every kind." According to this document the executant received land worth Rs. 20,000 a pro‑note of Rs. 10,000 a cheque for Rs. 1,000 and the debt of 30,961 was paid off, i.e., the executant received property worth Rs. 61,

961. The residential kothi situated in Jhelum Civil Lines was said to have been given over to him in January 1928 and this property does not pass over to the executant by virtue of this deed. This cannot, therefore, be taken to be a part of the share now allotted to the executant by the deed of 10th of January 1931. The real test of "instrument of partition" is whether there was any property of which the parties were co‑owners and the property was being divided by that deed in severalty. The deed nowhere recites that the property now going to the share of the executant had already been divided. All that was stated was that there had been disruption of the Joint Hindu Family but some property was still held by the executant and his father of which they were the co‑owners. It is for the first time that it is being divided by this deed. It would, therefore, be an "instrument of partition" entitling the parties to the separate enjoy ment of that property. The father also signed this document in token of his assent. I L R 12 Mad. 198 (F. B.) lays down that where persons incorrectly purporting to be‑ co‑owners of certain property agreed to divide it in severalty by written documents, such document was held to be "instrument of partition". In a later ruling of that very Court reported as 153 Indian Cases 119 it was pointed but than an instrument of partition "must be an instrument whereby co‑owners of any property divide or agree to divide such property" in severalty. But even if the description as co‑owners is not actually found in a document of this kind, it is still open to the Court to find on a proper construction of the terms thereof, whether these parties purport to be co‑owners of the property or not. "Further, even if they are not really co‑owners in the eye of law, still if they purport to be co‑owners and if a document of this kind is executed in that capacity, it would come within the definition of an "instrument of partition." Courts are only concerned with the' construction of the terms of the document and not with the legality of the claim set up by one or the other". In consonance with the principles laid down in these cases I am of the view that the deed of 10th of January 1931 executed by Raizada Gian Chand in favour of his father is an "instrument of partition." As to the value upon which the stamp duty is leviable, the total account of the share of the executant separated from the larger share is to be taken into account. This comes to as mentioned above, Rs. 61,961 and the stamp should be levied on that sum in accordance with Article 45 of the Schedule of the Stamp Act. Muhammad Munir, A. C. J.‑I agree. Cornelius, J.‑I agree. A. H. Answer accordingly.