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―40. There is no manner of doubt that in a suit for partition after a preliminary decree is passed declaring rights, title or interest of the parties, which decree makes a provision for partition of the suit property by metes and bounds and of separate possession in terms of the rights declared under the said decree, which has to be treated as preliminary, further inquiry is required to be held to enable the Court to finally and conclusively determine rights of the parties by actually partitioning the said property by metes and bounds. In order to do so, usually the task is assigned to a Commissioner to suggest mode of partition, who usually suggests the mode and manner of dividing the property. On receipt of such a report and deciding objections of the parties, if any, the Court then proceeds to pass a final decree declaring the persons entitled to separate shares, which enable the parties thereafter to hold and enjoy the property separately. Such a division of the property has the effect of creation of an exclusive right of a person in that portion of the property, which falls to his share and extinguishes his right, title or interest in those portions, which fall the exclusive shares of i the others. This decree of course would be covered by the definition of "instrument of partition", as defined in Clause (15) of Section 2 of Indian Stamp Act. "Instrument of partition" is defined therein to mean any instrument whereby co-owners of any property divide or agree to divide such property in severality, and include also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an Arbitrator directing partition. In case partition is effected of a property even by an Arbitrator by his award, the same would fall in the definition of "instrument of partition". So also a decree of Civil Court affecting partition of the property would fall in the said definition and the same would be required to be stamped according to the provisions of Indian Stamp Act.

63. To put it simply, an order for sale of the property under Section 2 or Section 3 (or, for that matter, under Section 4) of the Partition Act, though deemed to be decree by virtue of Section 8, cannot be construed as an "instrument of partition" within the meaning of Section 2(15) of Indian Stamp Act, 1899 for the reasons that it is not the "final order" passed for "effecting a partition", the division of property which would effect the partition being dependent upon the actual sale that is to follow. Needless to add, the sale of the property even in terms of directions under Section 2, 3 or 4 of the Partition Act would be carried out in accordance with the afore-quoted provisions of Order XXI and, therefore, in the realm of execution. Such execution would be of the deemed decree resulting from the order under the Partition Act. As under the general law, once the sale through court is completed, the distribution of sale proceeds amongst the shareholders would be carried out under an order of the court which would be the final order disposing of the suit and, therefore, the final decree. It is only such final order which has the result of "effecting a partition" and may consequently be the ―instrument of partition‖ vis-à-vis the property and the suit in question, within the meaning of Section 2(15) of Indian Stamp Act, 1893 attracting the liability to pay the stamp duty.

71. There are more reasons why I am unable to subscribe to the views of my learned brothers in their separate opinions. If an order under section 2 (or sections 3 or 4) of Partition Act were to be treated as the final order and, therefore, an "instrument of partition", the liability to pay stamp duty would have to be worked out in terms of Article 45 in first schedule of the Indian Stamp Act, 1899 which reads thus:

―Partition - Instrument of [as defined by s. 2(15)]. The same duty as a Bond (No. 15) for the amount of the value of the separated share or shares of the property N.B.- The largest share remaining after the property is partitioned (or, if there are two or more shares of equal value and not smaller than any of the other shares, then one of such equal shares) shall be deemed to be that from which the other shares are separated:

80. In view of the above, I find no error in the view expressed by the division bench of this court in K.N. Khanna vs. B.K Khanna, 2000 (87) DLT 286(DB): (2000) 55 DRJ 544: 2000 SCC OnLine Del 512, in following words:

"43. There is no manner of doubt that in a suit for partition after a preliminary decree is passed declaring rights, title or interest of the parties, which decree makes a provision for partition of the suit property by metes and bounds and of separate possession in terms of the rights declared under the said decree, which has to be treated as preliminary, further inquiry is required to be held to enable the Court to finally and conclusively determine rights of the parties by actually partitioning the said property by metes and bounds. In order to do so, usually the task is assigned to a Commissioner to suggest mode of partition, who usually suggests the mode and manner of dividing the property. On receipt of such a report and deciding objections of the parties, if any, the Court then proceeds to pass a final decree declaring the persons entitled to separate shares, which enable the parties thereafter to hold and enjoy the property separately. Such a division of the property has the effect of creation of an exclusive right of a person in that portion of the property, which falls to his share and extinguishes his right, title or interest in those portions, which fall the exclusive shares of the others. This decree of course would be covered by the definition of ―instrument of partition‖, as defined in clause (15) of Section 2 of Indian Stamp Act. ―Instrument of partition‖ is defined therein to mean any instrument whereby co-owners of any property divide or agree to divide such property in severality, and include also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an Arbitrator directing partition. In case partition is effected of a property even by an Arbitrator by his award, the same would fall in the definition of ―instrument of partition‖. So also a decree of Civil Court affecting partition of the property would fall in the said definition and the same would be required to be stamped according to the provisions of Indian Stamp Act.