Chandrasekhara Sastry, J.
1. The two cases were referred by the Board of Revenue to the High Court under Section 57 of the Indian Stamp Act.
2. The petitioners in R. C. No. 32 of 1959 are the sons of late Medum Venkayya Chetty. They got their family properties divided and partition lists were prepared in a book form duly signed by the members of the family. The property consisted of moveable and immoveable properties, out-standings and shares. The immoveable property consisted of agricultural lands also, The questions that arise for decision and which are referred to the. High Court are :
'(i) Whether the lists in question are instruments of partition within the meaning of Section 2(15) of the Indian Stamp Act and are therefore liable to stamp duty and penalty : and
(2) If so, what is the basis of levying the stamp duty?'
The petitioners filed this book containing the partition lists before the Income-tax Officer, Kurnool. The Officer took the view that the partition lists are instruments of partition within the meaning of Section 2, Clause (15) of the Indian Stamp Act, impounded them and sent them to the Revenue Divisional Officer, Kurnool for disposal under Section 40 of the Act. The Revenue Divisional Officer, Kurnool levied a stamp duty of Rs. 19740/- and a penalty of Rs. 31,515/- under Section 40(1)(b) of the Stamp Act. The petitioners filed an appeal before the Board of Revenue, which is the Chief Controlling Revenue Authority. The Board of Revenue finally held that the document in question, was an instrument of partition. But at the same time, the Board gave instructions to the Collector that, for the purpose of stamp duty with regard to agricultural lands, the stamp duty should be. charged at not more than five times the annual revenue and not on the market value as decided by the Revenue Divisional Officer, Kurnool. Against this order of the Board of Revenue, the petitioners filed W. P. No. 88/57 in the High Court, Hyderabad. The High Court, by its order dated 7-1-59 in the writ petition, directed the Boafd of Revenue to refer to it the two questions noted above under. Section 57 of the Indian Stamp Act, and that, is how R. C. No. 32/.59 is before us. R. C. no. 33/59 is before us under similar circumstances and the questions for decision in it are the same as in R. C. No. 32/59.
3. Mr. Vedantachari, the learned Counsel appearing for the petitioners contended that these partition lists are merely memoranda of a past partition effected prior to the preparation of the lists and that therefore, this book containing the lists of partition is not an instrument of partition as defined in Section 2, Clause (15) of the Indian Stamp Act.
An instrument of partition is defined in Section 2, Clause (15) of the Stamp Act as follows:-
'(15) Instrument of partition: 'Instrument of partition' means any instrument whereby co-owners of any property divide or agree to divide such property in severally 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.'
According to Mr. Vedantachari, the learned Counsel, the lists of partition came into existence in the following manner: The family property consisted of moveable property including cash, jewels etc., and also outstandings due to the family and immovable property consisting of agricultural lands, houses sites and shops, as well as shares. Certain mediators were appointed to effect the partition between the members of the family. They first drew up a list of the total outstandings due to the family. These were then divided into three shares and three lists were prepared containing a list of the items which fell to each share. Then lots by chits were drawn and each sharer took his share of the outstandings which fell to the share as per that list. The name of the sharer to whom each share of the outstandings fell is noted at the top of the corresponding list; and at the end of the each list the sharers signed. This was on 8-10-47 with regard to outstandings. The respective bonds relating to the outstandings were received by the respective sharers on 9-9-48. The same procedure was followed on other days with respect to the other property.
The argument of Mr. Vedantachari is that the. moment the lots were cast, the partition was complete and that the preparation of the lists regarding the specific items that were allotted to each sharer was only a record of the partition already completed by the casting of the lots and, therefore, these lists of partition are not instruments of partition whereby the property was divided in severally between the co-owners within the, meaning of Section 2, Clause (15) of the Indian Stamp Act. It is not possible to accept this argument for the reason that the preparation of the lists of partition specifying the items which fell to each sharer is part of the process of dividing the properties in several-ty, between the co-owners. It may be noted that admittedly these lists were prepared even before the lots are cast between the co-owners. As and when one list of partition fell to the share of a particular co-owner, it was noted therein that the items as per the list fell to that co-owner. So that it follows that the-exclusive right of that particular co-owner to the items specified in that list is created by the preparation and the signing of that list by the co-owners. Thus, the book containing the lists of partition is an instrument whereby the co-owners of the property divided the property in severally and is liable to stamp duty under Article 45 of the Schedule 1 to the Indian Stamp Act.
4. Mr. Vedantachari, the learned Counsel relied upon the decision of the Full Bench of the Madras High Court in Referred Case No. 5 of 1883 : ILR 7 Mad 385. There the document in question contained a recital that a certain property had, on partition, been allotted for the maintenance of parents and also referred to the particulars of property, which had, on partition, fallen to the share of one of the brothers. The Full Bench held that the document itself did not operate to release the joint interests of the other parties to the partition and create a soie interest in the person whose share it records. This decision has no application to the facts of the present case. But we may refer to the decision in Ganpat Kriparam v. Supdu Kri-param, ILR 32 Bom 509. In that case, four undivided brothers made four lists of family property and each list was signed by three brothers and not by the fourth, who retained it and the question that arose for decision was whether the lists constituted a partition between the brothers and required to be stamped as such under the Stamp Act. It was held that the four documents formed, when read together, an instrument of partition within the meaning of Section 2, Clause (15) of the Indian Stamp Act. Scott, Chief Justice held that:
'Each document forms the title of the brother retaining it against his three brothers with regard to the property which comes to his share upon the partition effected .....'
This applies equally to the cases before us. Therefore, the answer to the first question is that the lists are instruments of partition within the meaning of Section 2, Clause (15) of the Indian Stamp Act and are therefore liable to stamp duty and penalty.
5. Then, the next question is : What is the basis of levying the stamp duty. The Board of Revenue itself held that for the purpose of stamp duty with respect to the agricultural lands involved in the partition, stamp duty should be charged at not more than five times the annual revenue and not on the market value. This view is not questioned before us.
6. The facts in R. C. No. 33/59 and the ques-. tion that arises for decision therein are similar to those in R. C. No. 32/59. The answers to those questions are the same.
7. One other point raised by Mr. Vedanta-chari is that certain decrees obtained by the family and some outstandings to recover which suits are pending are not divided between the sharers in severally and that they cannot be taken into account in determining the stamp duty. This is a matter which is to be brought to the notice of the Board of Revenue and to be considered by it. The petitioners may therefore urge this before the Board of Revenue.
8. At the same time, we may point out that the failure to affix the proper stamp to the lists in question is obviously due to an honest and bona fide belief that they did not require to be stamped under the Stamp Act and was not due to any fraudulent intent to defraud the Government of the stamp duty. Therefore, the penalty of Rs. 31-515/-in the one case and a penalty of Rs. 9,937-8-0 in the other appears to be highly excessive. The Board of Revenue may consider the qaestion of reducing the penalty imposed.
9. The petitioners shall pay the costs of the respondent. Advocate's fee Rs. 125/- in each case.