ORDER
D.P. Mohapatra, J.
1. The short question that arises for determination in this case is whether the document marked Ext. 1 in the suit is required to be stamped. The objection raised by the petitioners who are defendants in the suit against admissibility of the said document onthe ground that it was not stamped having been overruled by the learned trial Judge they filed this revision petition assailing the order.
2. The opp. parties filed Title Suit No. 73 of 1975 against the petitioners praying to declare their right of passage over the suit land. In course of trial of the suit the plain-tiffs-opp. parties produced the document in question which, as urged by the learned counsel for the petitioners, is a deed of settlement and wanted it to be marked as an exhibit. The petitioners objected to admission of the document on the ground that it was unstamped and unregistered and therefore could not be admitted in evidence. The learned Munsif overruled the objection by order dated 19-4-91 and marked the document as Ext. 1. He took the view that the document recorded a family settlement made previously and does not come within the purview of the definition of 'settlement' under the Indian Stamp Act (for short, 'the Act') and further that under the document no right or liability has been created, transferred, limited, extended, extinguished or recorded.
3. The answer to the question formulated earlier depends on interpretation of the provision in Section 2(24) of the Act which defines 'settlement'. The said provision reads as follows:
'Section 2(24). 'Settlement' -- 'Settlement' means any non-testamentary disposition, in writing, of movable or immovable property made-
(a) in consideration of marriage
(b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or
(c) for any religious or charitable purpose;
and includes an agreement in writing to make such a disposition and, where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition.'
It will be convenient to quote here the provision in Section 2(15), reference to which will be necessary.
'Section 2(15). 'Instrument of partition' -- 'Instrument of partition' means any instrument whereby co-owners of any property divide of agree to divide such property in severally, and includes also a final order for effecting partition passed by any revenue authority or any Civil Court and an award by an arbitrator directing a partition'.
4. Shri B. H. Mohanty appearing for the petitioners contended that the inclusive definition given in the last part of Section 2(24) takes within its sweep an agreement in writing to make a disposition of the type enumerated in the section and where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition. According to Shri Mohanty, though the document (Ext. 1) records a past transaction it comes within the definition of 'settlement' in Section 2(24) and is required to be stamped. Referring to Section 35 of the Act Shri Mohanty contended that the statutory mandate is clear that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence unless such instrument is duly stamped. The learned counsel also referred to Section 36 of the Act which provides that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Shri Mohanty therefore urged that the learned trial Judge having illegally admitted the document in question in evidence, the defendants have been compelled to challenge the order.
Shri Bidyadhar Misra appearing for the plaintiffs-opp. parties on the other hand contended that the trial Judge was right in holding that the document is not required to be stamped or registered since it only records past arrangement by which the properties have been divided amongst the members ofthe family. According to Shri Misra, the document is not a 'settlement' as defined in Section 2(24) since no right, liability or interest is created under it by the power in favour of persons having no interest in the property.
5. While determining the question whether a document is required to be stamped on stamp papers, it is to be borne in mind that the Act taxes instruments and not transactions. In determining stamp duty, the substance of the transaction as disclosed by whole of the instrument has to be looked to and not merely the operative part of the instrument. For the purpose of Section 2(15) which defines 'instrument of partition' it is enough if the parties purport to deal with the properties as co-owners, though they may not be co-owners in the eye of law and even if the description as co-owners is not actually found in a document, it will be for the Court to find, an a proper construction of the terms of the document, whether the parties purport to be co-owners of the property or not. The fact that the allotments are not to enact individual among the original co-owners but to groups does not make any difference because the true antithesis in Section 2(15) is between the original common ownership and the subsequent cessation of that common ownership. A deed of partition necessarily pre-supposes that more than one person has a joint share in the property and that joint share is divided between the parties. Where the Karta who is the father exercises the power to divide the joint family property, the document bringing about the division is clearly an instrument of partition within the meaning of Section 2(15). The document could be a 'settlement' within the meaning of Section 2(24)(b) if the property belonged to the settler. When the property is of the joint family and not of the settler alone, the document by which such property is divided cannot be described as a settlement. (See AIR 1970 Madh Pra 33 (SB): Mahajan Dwarka Prasad v. Sub-Registrar, Narsinghpur). If a document does not of itself operate to release the joint interests of the other parties to the partition and creates a sole interest in the person whose share it records itis not liable to stamp duty as a partition deed. It is merely a memorandum acknowledging a partition. 'Settlement' as defined a Section 2(24) includes not only a document which has for its object the distribution of the property of the settler but of providing, whether by distribution or otherwise for some person dependent on him. The definition suggests the creation of a separate interest in favour of several persons who may have a legal or moral claim on the settler, or for whom he may desire to make provision. The last portion of the definition as to record of oral disposition was added by the amending Act (Act XV of 1904) to prevent evasion of stamp duty by the expedient of an oral disposition of the property subsequently recorded in the form of a declaration of trust and a document falling within the definition as recording by way of declaration or otherwise the terms of an oral disposition was held chargeable to duty under Article 58 although the oral disposition was made prior to the amending Act (XV of 1904).
6. In view of the principles discussed above it becomes necessary to consider the nature of the document in question, a copy of which was produced by Shri Bidyadhar Misra. On a bare reading of it, it is clear that the plaintiffs and other persons named therein who are members of a Hindu Mitakshara family jointly owned and possessed the properties mentioned in Schedule 'A' which includes the property in respect of which the right of easement is claimed in the suit. Shri Prasanna Kumar Acharya, the karta of the family was managing its affairs and assets on behalf of all the members and the said karta on account of his old age and ill-health experienced difficulty in lacking after and managing the joint properties scattered in different places and consequently the members made a family settlement of the joint properties among themselves with mutual consent and have been in separate possession of their respective shares since 1939. Since a written record of the said family settlement was necessary with a view to facilitate separate mutation of lands and houses in the names of co-sharers with the revenue and municipal authorities and to make the respective co-sharers accountable for rent, taxes,the document recording the family settlement already (sic) was executed in 20th of April, 1971. There is no stipulation, express or implied, in the document that the property belonged to the eldest member or any particular member of the family. On the other hand, the statements in the document clearly suggest that all the parties to the document has interest in the properties and had distributed the same among themselves earlier and the present document was executed acknowledging the said distribution. Therefore it cannot be said that by the document there was a disposition of the property by the settler in favour of other members of the family.
7. From the contents of the document as discussed above it is clear that what was intended to be done by the document was a division of the properties of the joint family amongst members of the family. It is not a document under which a person having exclusive title and interest in the property settles it with another and creates title and interest of the latter in the property. There is little scope for dispute and indeed the position was not controverted that under Section 2(15) a document witnessing a previous oral partition is not required to be stamped. As noticed earlier, in order to determine the nature of the document the contents of it have to be looked into and not its lable. Therefore the document in question though described as a deed of 'settlement' does not, in my view, come within the purview of Section 2(24).
Shri Mohanty placed reliance on the decision of the Bombay High Court reported in (1905) 7 Bom LR 931 (In re Mansukhram) wherein it was held that a deed of settlement remains a settlement within the meaning of Article 58A although it records, by way of declaration or otherwise, the terms of a disposition, not made in writing, at a date anterior to the passing of the Act XV of 1904. In that case one Manuskhram established on institution in which religious instruction was to be combined with a public library; the land and the building erected thereon were valued at Rs. 30,000/-, while an equipment of books, furniture etc. to the value of Rs. 25,000/- wasprovided; Mansukhram himself managed the institution until 1898 when at a public meeting he dedicated it to the public and appointed a Managing Committee to conduct its affairs, on 26th May, 1905 he executed the trust, made over a sum of Rs. 35,000/- in promissory notes to certain trustees for the furtherance of the objects set forth in the deed. When the deed was presented for registration to the Sub-Registrar, Nadiad he directed that it should be properly treated as a deed of settlement and was therefore liable to be stamped as provided by Article 58A, Schedule I. In that case the Court upheld the decision of the Collector that it was a deed of settlement and as such was required to be stamped. This decision is clearly distinguishable from the present case on facts. By the document the owner of the property created title in favour of the trust which had no interest in it previously. In the present case, as noted earlier, there is no disposition of the property by the owner in favour of another who had as interest in it.
Shri Mohanty also referred to the decision of the Madras High Court in the case of Chief Controlling Revenue Authority, Board of Revenue, Madras v. Mohd. Yonus, reported in AIR 1966 Madras 315 (FB). In that case the deed recording earlier oral gift by father to sons, some items of the properties partitioned by the deed and other items of properties stated to have been set apart for being settled on wife and daughters of the father was held to be both a deed of partition and a settlement and liable to duty as such. This case is not comparable to the present case. As such it is of little assistance.
8. On the analysis and the discussions in the foregoing paragraphs it is clear that there is no merit in the challenge raised by the petitioners to the admissibility of the document marked Ext. 1 on the ground that it was required to be stamped and the learned trial Judge was right in rejecting the objection. Accordingly the revision petition being devoid of merit is dismissed, but in the circumstances of the case without any order for costs.