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16.(i) On the aspect of whether a final decree is an „Instrument of Partition‟, the first part of Section 2(15) of the Stamp Act defining an „Instrument of Partition‟ will be relevant to be noted for being compared, contrasted and understood with the language as found in the second part of Section 2(15) of the Stamp Act. Whereas the first part of Section 2(15) of the Stamp Act deals with a partition deed being entered into between the co-owners resulting in joint property/properties being divided by giving the properties or shares in the properties to different co-owners/joint owners (and such an act of entering into a partition deed being a consensual act of the co-owners/joint owners), the second part of Section 2(15) of the Stamp Act concerns itself with the situation when there is no agreement between the joint owners/co-owners of the joint property/properties as to how such properties have to be partitioned in terms of a partition deed, and the parties/co- owners thus approach a court or arbitrator for seeking partition, and in such proceedings a civil court or arbitrator passes a final decree for partitioning/dividing the joint property/properties between different joint owners/co-owners. (Reference hereafter to civil court will include an arbitrator.) A decree passed by a civil court is subject matter of second part of Section 2(15) of the Stamp Act as distinguished from a voluntary and consensual partition deed entered into between the co-owners. In other words, whereas the first part of Section 2(15) of the Stamp Act deals with an agreement voluntarily entered into between the co-owners resulting in the joint property/properties being partitioned as stated in the partition deed, the second part of Section 2(15) of the Stamp Act deals with the situation/position that on account of parties not agreeing to partitioning of the joint property/properties by entering into a partition deed, therefore the civil court is approached and which divides the joint property/properties between the joint owners/co-owners by passing of a final decree of partition. However it needs to be noted that both the first and the second parts of Section 2(15) of the Stamp Act, with the first part dealing with partition effected in terms of an agreement (partition deed) between the parties and the second part being the court partitioning the joint property/properties by passing of a final decree of partition on account of lack of agreement between the co- owners/joint owners forcing one or more co-owners to approach the civil court seeking partition, are two parts with the same end result of finally dividing the joint property/properties between the co-owners/joint owners. Therefore, firstly it has to be held that what is the meaning of partition in the first part of Section 2(15) of the Stamp Act will also have to be meaning given to this expression of partition found in the second part of Section 2(15) of the Stamp Act.

(ii) In both the situations, firstly of whenever a partition deed is entered into or secondly of when a final decree of partition is passed by a civil court in a suit for partition, there would in many cases where there would exist a situation of existence of many shareholders and many properties, resulting in the position that one or more shareholders would have to get possession of whole or part of one or more properties from the one or more co-sharers and simultaneously one or more co-sharers would also have to give whole or part of joint properties with him/them to one or more of the other co-sharers who get such property/properties in physical possession of the other co- owners. When the case is of a partition deed being entered into which requires one or more co-owners to transfer possession of whole or part of one or more joint property/properties to one or more other co-owners, then this act of transferring possession of whole or part of joint property/properties is an act which has to take place after the entering into a deed of partition and in furtherance of the terms of the partition deed. In such cases a partition deed which is entered into is drawn up on a non-judicial stamp paper of the value specified in Article 45 of Schedule I of the Stamp Act, and thereafter because a shareholder or shareholders fail to get their properties or physical shares in the joint properties on account of refusal by a coparcener to perform his obligations under the deed of partition, then the aggrieved shareholder or shareholders will approach the civil court by filing a suit to enforce his/their rights in terms of the partition deed. In the other situation where the partition effected is by means of passing of a final decree in a suit for partition then obviously it is in execution proceedings that this final decree is executed/enforced by one or more parties to the suit for such one or more co-owners to get possession of their respective shares in one or more joint properties of which they are not in possession because the properties in which such party/parties have got shares are in the possession of the other co-owners i.e execution proceedings have to be filed to take possession of the physical shares (in whole or part of one or more of the joint property/properties) which have fallen to the shares of such person(s) in the final decree for partition. Since a deed of partition has to be stamped as per Article 45 of Schedule I of the Stamp Act, therefore similarly a decree for partition which is passed by a civil court, which is of the same nature as the a partition deed, has also to be necessarily stamped as per Article 45 of Schedule I of the Stamp Act. This is clear, not only from the discussion given hereinabove, but even on a plain reading of both the parts of Section 2(15) of the Stamp Act. Putting it in other words, whether the document is a deed of partition or it is a decree of partition, both of the documents have to be stamped in accordance with Article 45 of the Schedule I of the Stamp Act and merely because further acts are required for enforcing rights under the partition deed or the final decree of partition, will not mean that such deed of partition or the final decree of partition is not an 'Instrument of Partition' as envisaged in Section 2(15) of the Stamp Act.

17. We have therefore no doubt whatsoever that Section 2(15) of the Stamp Act will result in the requirement of non-judicial stamp duty being required to be paid in terms of Article 45 of Schedule I of the Stamp Act on a final decree of partition even though further acts after passing of the final decree are required to be taken for enforcement of the rights of the co-owners including of sale of the property/properties.

18. I therefore answer the reference by holding that order of sale which is passed in a partition suit is a final decree and that this final decree is a final order of partition under Section 2(15) of the Stamp Act with the consequence that such final order/decree of partition will have to be stamped as per Article 45 of Schedule I of the Stamp Act. In proceedings for enforcement of rights under a final decree of partition, including of one or more co-sharers seeking possession of one or more joint properties; whether wholly or in part; the same will be by execution proceedings of the final decree of partition. The proceedings and steps for sale of the joint property/properties as ordered in terms of order passed under Section 8 of the Partition Act will be steps in execution of the final decree and would not be steps prior to the passing of the final decree. An order of sale passed under Section 8 of the Partition Act is not a preliminary decree but is a final decree under Section 2(2) CPC as no further rights are required to be adjudicated but the declared rights only have to be enforced thereafter and which enforcement would be in execution proceedings of the final decree for partition being an order of sale of the joint property/properties.

3. The separate opinion penned by Valmiki. J. Mehta, J. (with which S. Ravindra Bhat, J. concurs by his separate opinion) proposes to answer the reference (as per draft which was circulated) by holding that:-

―... order of sale which is passed in a partition suit is a final decree and that this final decree is a final order of partition under Section 2(15) of the Stamp Act with the consequence that such final order/decree of partition will have to be stamped as per Article 45 of Schedule I of the Stamp Act. In proceedings for enforcement of rights under a final decree of partition, including of one or more co-sharers seeking possession of one or more joint properties; whether wholly or in part; the same will be by execution proceedings of the final decree of partition. The proceedings and steps for sale of the joint property/properties as ordered in terms of order passed under Section 8 of the Partition Act will be steps in execution of the final decree and would not be steps prior to the passing of the final decree. An order of sale passed under Section 8 of the Partition Act is not a preliminary decree but is a final decree under Section 2(2) CPC as no further rights are required to be adjudicated but the declared rights only have to be enforced thereafter and which enforcement would be in execution proceedings of the final decree of partition being an order of sale of the joint property/properties.‖