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IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

ORIGINAL SIDE

BEFORE:

THE HON’BLE JUSTICE OM NARAYAN RAI

WPO 506 OF 2025

SUBRATA NUNDY

VS.

THE COLLECTOR OF KOLKATA, STAMP AND REVENUE, OFFICE OF

THE COLLECTOR & ORS.

For the Petitioner : Mr. Sanjib Dawn, Adv.

For the State : Mr. Ayan Banerjee, Adv.

Mr. Soumyajit Ghosh, Adv.

Hearing Concluded on : 19.01.2026

Judgment on : 18.02.2026

Om Narayan Rai, J.:-

1. This writ petition has been filed seeking issuance of a Writ of Mandamus

declaring that the final decree dated November 29, 2023 is not an

“instrument of partition” within the meaning of Section 2(15) of the Indian

Stamp Act, 1899 (hereafter “the said Act of 1899”) and therefore not exigible

to stamp duty under Article 45 or Article 23 of Schedule 1A of the said Act of

1899.

FACTS OF THE CASE:

2. Briefly summed up, the facts of the case are as follows:-

a) A suit for partition being C.S. No. 91 of 2013 had been instituted on the

Original Side of this Court by one Smt. Sudha Nundy and her son Sri

Suprakash Nundy wherein the petitioner was also arrayed as a defendant

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along with others. In the said suit, a preliminary decree was passed on

December 03, 2013.

b) The preliminary decree was thereafter modified on January 20, 2016 and

the petitioner was declared to be the owner of 12.5% of the 3/4

th

share of

the suit property. A Commissioner was appointed for preparation of the

plan for partition who duly prepared a plan for partition.

c) On June 06, 2018 a structural engineer was appointed to assess the

condition of the property inasmuch as the same was dilapidated. The

structural engineer filed a report indicating that as per the plan, physical

partition was not feasible.

d) Subsequently, the original plaintiffs died and the legal heirs of the original

plaintiffs were substituted.

e) An application was thereafter filed by the plaintiffs (substituted), praying

for sale of the suit property by public auction so that the parties were not

deprived of their legitimate shares and claim in respect of the property.

f) Upon such application being filed, the petitioner (i.e. the defendant no.3

in the suit) sought for leave of the Court to allow him to purchase the

share of the plaintiffs at the prevalent market price.

g) On February 20, 2023 , it was agreed between the parties that the

plaintiffs’ share would be sold to the petitioner. Ultimately on August 05,

2023 a registered conveyance was executed by the plaintiffs in favour of

the petitioner upon payment of stamp duty.

h) On November 29, 2023 a coordinate Bench of this Court ultimately

disposed of the suit being C.S. No.91 of 2013 and directed drawing up of

decree “by making the proposed plan for partition being Annexure L of the

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Commissioner‟s report and the Deed of Conveyance dated 5

th

August, 2023

as part of the Decree”.

i) While passing the said decree, the Court took note of the report filed by

the structural engineer indicating that as the subject premises could not

bear the impact of fresh construction to effect partition as per plan

therefore partition of the premises was not possible.

j) The decree confirmed that the petitioner’s total share is 37.5%. The decree

department thereafter sent the draft decree to the Collector for the

purpose of assessment of stamp duty. On March 13, 2025 the Collector

imposed a stamp duty of Rs.2,61,000/ - which comprised two

components:-

i. Rs.45,000/- under Article 45 of Schedule 1A of the said Act of 1899

for partition and

ii. Rs.2,16,000/- under Article 23 of Schedule 1A of the said Act of

1899 for sale.

k) The petitioner objected to the same highlighting that stamp duty under

Article 23 of Schedule 1A of the said Act of 1899 for the purpose of

conveyance had already been paid during registration of sale deed on

August 05, 2023. The Collector rejected such objection and passed an

order dated April 08, 2025. Being aggrieved by the said order dated April

08, 2025, the petitioner approached this Court by way of this present writ

petition.

l) Subsequently, by an order dated July 16, 2025, the Collector of Kolkata,

Stamp and Revenue deleted the imposition of stamp duty for the purpose

of conveyance (to the tune of Rs.1,43,520/-) but retained the imposition of

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stamp duty to the tune of Rs.45,000/- for the purpose of partition. The

said fact was brought on record by way of a supplementary affidavit filed

in Court. The petitioner still remains aggrieved by the imposition of stamp

duty for the purpose of partition.

SUBMISSIONS ON BEHALF OF THE PETITIONER:

3. Mr. Dawn, learned Advocate appearing for the petitioner submits that in

terms of Section 2(15) of the said Act of 1899, a final order for “effecting a

partition” passed by a Civil Court is exigible to stamp duty but in the instant

case since partition has been held not to be physically possible, stamp duty

could not be levied.

4. It was submitted that a decree which actually effects partition is treated to

be dutiable and not a decree whereby physical partition by meets and

bounds has been held to be not possible. It was submitted that as partition

could not be affected physically, and there was no direction for effecting

partition in the final decree, there was no “final order for effecting partition”

passed by any Civil Court and that being so the decree could not be treated

as an instrument of partition.

5. It was submitted that in such view of the matter, it should be held that the

respondent State authorities are not authorised to claim any stamp duty.

6. It was further submitted that no new right had been created or fresh

partition had been effected therefore no stamp duty was chargeable.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

7. Mr. Banerjee, learned Advocate appearing for the respondent took this Court

through Section 3 of the said Act of 1899 to demonstrate the instruments

that are chargeable to duty. He then placed Section 2(15) of the said Act of

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1899 and Article 45 of Schedule 1A of the said Act of 1899 to show that the

decree by which partition had been effected in the present case was exigible

to stamp duty.

8. Relying on a judgment of the Hon’ble Supreme Court in the case of Subh

Karan Bubna vs. Sita Saran Bubna & Others

1

, it was submitted by Mr.

Banerjee that once a final decree was passed, it became irrelevant as to

whether physical partition could be done or not.

9. He next relied on a judgment of the Hon’ble Supreme Court in the case of

Bimal Kumar & Another vs. Shakuntala De bi & Others

2

and submitted

that a decree for partition takes the character of a joint decree.

10. Mr. Banerjee submitted that a final decree ultimately declaring the shares of

the parties would mean declaring them by metes and bounds and in the

case at hand when the report of the Commissioner had been made part of

the decree, there was no reason to hold that the same was not qualified to

be charged with stamp duty.

ANALYSIS & DECISION:

11. Heard Learned Advocates appearing for the respective parties and

considered the material on record.

12. The only point which needs to be decided by this Court is whether the

demand of stamp duty by the Collector is justified in the case at hand or

not.

13. Section 2(15) of the said Act of 1899 is relevant for the present purpose. The

same reads thus:-

1

(2009) 9 SCC 689

2

(2012) 3 SCC 548

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“(15) Instrument of partition— “instrument of partition” means any instrument

where by co-owners of any property divide or agree to divide such property in

severalty, and includes also a final order for effecting a partition passed by any

Revenue-authority or any Civil Court and an award by an a rbitrator directing a

partition;”

14. A meaningful reading of the aforequoted provision would reveal that a “final

order for effecting a partition” passed by a civil court would qualify for an

instrument of partition. Since the question that has fallen for consideration

by this Court pertains to the exigibility of the final decree to stamp duty,

therefore this Court would look at the final decree only with the intent of

deciphering as to whether the same satisfies the requirement of a “final

order for effecting a partition”.

15. Before proceeding further a brief survey of the relevant provisions of the

Code of Civil Procedure, 1908 (hereafter “the Code”) would be necessary for

the purpose of arriving at a just conclusion.

16. Order XX Rule 18 of the Code prescribes the procedure for Decree in suit for

partition of property or separate possession of a share therein. The same

reads thus:-

“18. Decree in suit for partition of property or separate possession of a

share therein— Where the Court passes a decree for the partition of property or for

the separate possession of a share therein, then,—

(1) if and in so far as the decree relates to an estate assessed to the payment of

revenue to the Government, the decree shall declare the rights of the several parties

interested in the property, but shall direct such partition or separation to be made by

the Collector, or any gazetted subordinate of the Collector deputed by him in this

behalf, in accordance with such declaration and with the provisions of section 54;

(2) if and in so far as such decree relates to any other immovable property or to

movable property, the Court may, if the partition or separation cannot be conveniently

made without further inquiry, pass a preliminary decree declaring the rights of the

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several parties interested in the property and giving such further directions as may be

required.”

17. As to the manner in which the inquiry indicated in Order XX Rule 18(2) of

the Code is to be done is provided in Order XXVI Rules 13 and 14 of the

Code. The same may now be noticed:-

“13. Commission to make partition of immovable property - Where a

preliminary decree for partition has been passed, the Court may, in any case not

provided for by section 54, issue a commission to such person as it thinks fit to make

the partition or separation according to the rights as declared in such decree.

14. Procedure of Commissioner -

(1) The Commissioner shall, after such inquiry as may be necessary, divide the

property into as many shares as may be directly by the order under which the

commission was issued, and shall allot such shares to the parties, and may, if

authorised thereto by the said order, award sums to be paid for the purpose of

equalizing the value of the shares.

(2) The commissioner shall then prepare and sign a report or the Commissioners

(where the commission was issued to more than one person and they cannot agree)

shall prepare and sign separate reports appointing the share of each party and

distinguishing each share (if so directed by the said order) by metes and bounds. Such

report or reports shall be annexed to the commission and transmitted to the Court; and

the Court, after hearing any objections which the parties may make to the report or

reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in

accordance with the same as confirmed or varied; but where the Court sets aside the

report or reports it shall either issue a new commission or make such other order as it

shall think fit.”

18. In the case at hand, the Court has conducted the relevant inquiry and the

report with partition plan filed by the Commissioner has been accepted by

the parties which has been made part of the decree. Ordinarily, in partition

matters, if property is physically impartible for any reason, the Court takes

the route of sale or equalisation of shares by payment of owelty money etc.

However nothing of that sort appears to have been done in the case at hand

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and the parties have also accepted the situation. In such view of the matter,

can the petitioner (or for that matter any of the parties to the proceeding)

contend that the decree is not final? The answer in the considered view of

the court must be in the negative.

19. After having accepted the partition plan and the final decree whereby the

suit was disposed of, the petitioner cannot now turn around and say that

the petitioner is not liable to pay any stamp duty as the decree is not

qualified to be called a “final order for effecting partition”.

20. At this juncture, the observations of the Hon’ble Supreme Court in the case

of Shankar Balwant Lokhande vs. Chandrakant Shankar Lokhande &

Another

3

may be noticed:-

“3. Order 20, Rule 7 of CPC envisages that the decree “shall bear the day on which

the judgment was pronounced, and, when the judge has satisfied himself that the

decree has been drawn up in accordance with the judgment, he shall sign the decree”.

Section 2(2) of CPC defines „decree‟ to mean “the formal expression of an adjudication

which, so far as regards the Court expressing it, conclusively determines the rights of

the parties with regard to all or any of the matters in controversy in the suit and may

be either preliminary or final”. A preliminary decree is one which declares the rights

and liabilities of the parties leaving the actual result to be worked out in further

proceedings. Then, as a result of the further inquiries conducted pursuant to the

preliminary decree, the rights of the parties are fully determined and a decree is

passed in accordance with such determination which is final. Both the decrees are in

the same suit. Final decree may be said to become final in two ways: (i) when the time

for appeal has expired without any appeal being filed against the preliminary decree

or the matter has been decided by the highest Court; (ii) when, as regards the court

passing the decree, the same stands completely disposed of. It is in the latter sense

the word „decree‟ is used in Section 2(2) of CPC. The appealability of the decree will,

therefore, not affect its character as a final decree. The final decree merely carries into

fulfilment the preliminary decree.”

[Emphasis supplied]

3

(1995) 3 SCC 413

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21. In the case at hand both the aforesaid conditions stand fulfilled. As already

indicated hereinabove, the partition suit being C.S.91 of 2013 was disposed

of by a coordinate Bench of this Court on November 29, 2023 inter alia with

a direction to draw up the decree “by making the proposed plan for partition

being Annexure L of the Commissioner‟s report and the Deed of Conveyance

dated 5

th

August, 2023 as part of the Decree”. The parties to the suit have

accepted the decree as it is without taking any recourse thereagainst. It is

worth noticing that upon the structural engineer filing his report observing

that the subject property would not be able to withstand the impact of

construction for the purpose of effecting partition as per plan, an application

was made by the plaintiffs seeking auction of the subject property for the

benefit of all the parties. However, the petitioner purchased the shares of the

plaintiffs and stopped at that. The plaintiffs having sold off their shares

obviously exited from the litigation. None of the defendants in the partition

suit who remained on board made any application for sale in terms of

Section 2 of the Partition Act, 1893 before passing of the final decree despite

it being known to them that the property was not physically partible. The

final decree was allowed to be passed upon making the plan for partition a

part of the decree and the decree has also been allowed to attain finality.

22. In the aforesaid context the following observations of the Hon’ble Supreme

Court in the case of Subh Karan Bubna (supra) deserve notice:-

“18. The following principles emerge from the above discussion regarding partition

suits:

******************** ******************** ********************

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18.2. In regard to immovable properties (other than agricultural lands paying land

revenue), that is, buildings, plots, etc. or movable properties:

(i) where the court can conveniently and without further enquiry make the division

without the assistance of any Commissioner, or where parties agree upon the manner

of division, the court will pass a single decree comprising the preliminary decree

declaring the rights of several parties and also a final decree dividing the suit

properties by metes and bounds.

(ii) where the division by metes and bounds cannot be made without further inquiry,

the court will pass a preliminary decree declaring the rights of the parties interested in

the property and give further directions as may be required to effect the division. In

such cases, normally a Commissioner is appointed (usually an engineer,

draughtsman, architect, or lawyer) to physically examine the property to be divided

and suggest the manner of division. The court then hears the parties on the report, and

passes a final decree for division by metes and bounds.

The function of making a partition or separation according to the rights declared by

the preliminary decree (in regard to non-agricultural immovable properties and

movables) is entrusted to a Commissioner, as it involves inspection of the property and

examination of various alternatives with reference to practical utility and site

conditions. When the Commissioner gives his report as to the manner of division,

the proposals contained in the report are considered by the court; and after hearing

objections to the report, if any, the court passes a final decree whereby the relief

sought in the suit is granted by separating the property by metes and bounds. It is

also possible that if the property is incapable of proper division, the court may direct

sale thereof and distribution of the proceeds as per the shares declared.

18.3. As the declaration of rights or shares is only the first stage in a suit for

partition, a preliminary decree does not have the effect of disposing of the suit. The

suit continues to be pending until partition, that is, division by metes and bounds

takes place by passing a final decree. An application requesting the court to take

necessary steps to draw up a final decree effecting a division in terms of the

preliminary decree, is neither an application for execution (falling under Article 136 of

the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of

the Limitation Act). It is only a reminder to the court to do its duty to appoint a

Commissioner, get a report, and draw a final decree in the pending suit so that the

suit is taken to its logical conclusion.”

23. In the instant case final decree has been drawn up by making the partition

plan a part of the decree. The parties have accepted the same. While it is

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true that in the instant case the Court has not directed sale of the property

and distribution of the proceeds as per the shares of the parties, it is equally

true that the parties have accepted such arrangement. In such context the

observations of the following observations of the Hon’ble Supreme Court in

the case of Rachakonda Venkat Rao & Others vs. R. Saty a Bai

4

may be

noticed:-

“19. The learned counsel for the respondents (plaintiffs) argued that the 1978

decree was partly preliminary and partly final. In support of this argument he drew

our attention to the application of the plaintiffs under Order 26 Rules 13 and 14 CPC

where it is stated that in the decree dated 13-7-1978, separate possession of

properties at Serial Nos. 1, 2, 3 and 5 of Schedule I had been allotted to the plaintiffs

while properties at Serial Nos. 4, 6 and 7 of the said schedule remained joint. From

this the learned counsel submits that so far as properties at Sl. Nos. 1, 2, 3 and 5 of

Schedule I are concerned, the decree was a final decree while for the rest of the

properties it was only a preliminary decree. It is further submitted by the learned

counsel for the plaintiffs that in the plaint they had asked for separate possession of

all the properties falling to their share. Accordingly, a final decree with respect to the

joint properties remained to be passed. Referring to sub-section (2) of Section 2 of the

Code of Civil Procedure it was argued that a suit has to be completely disposed of by a

final decree. In the decree dated 13-7-1978, properties were allotted to the plaintiffs as

per Schedule I. The said schedule shows that certain properties were exclusively

allotted to the plaintiffs while certain other properties i.e. properties at Serial Nos. 4, 6

and 7 of Schedule I remained joint. For purposes of determination whether the said

decree was a preliminary decree or a final decree or a decree partly preliminary or

partly final, reference has to be made to the decree itself. It is also important to gather

the intention of the parties from the compromise application because it was a

compromise decree. We have already made reference to both these documents. In our

view, intention of the parties is clear i.e. the entire controversy in the suit was sought

to be finally settled. In a partition it is not necessary that each and every property

must be partitioned and that the parties are put in separate possession of respective

portions of properties falling to their share. In the present case, the parties mutually

agreed to keep some of the properties joint. The reason for this is also available from

the record. The properties which were kept joint were in a state that a partition by

4

(2003) 7 SCC 452

Page 12 of 15

metes and bounds was not possible. Property at Serial No. 4 of Schedule I was under

acquisition and there was no point in partitioning it by metes and bounds. Regarding

Property No. 6 the share of the plaintiffs had been quantified in terms of money i.e. Rs

7500 (Rupees seven thousand five hundred only) payable by the defendants and the

plaintiffs were given a right to execute the decree to that extent. Property at Serial No.

7 was fully occupied by outsiders with whom litigation was going on. The fate of the

litigation was unknown. Therefore, understandably, it was not partitioned. These facts

clearly show that at the time of compromise itself the parties had taken a final

decision with respect to partition of all the joint family properties and the same had

been given effect to. The compromise application does not contain any clause

regarding the future course of action which gives a clear indication that nothing was

left for the future on the question of partition of the joint family properties. The curtain

had been finally drawn.

******************** ******************** ********************

21. We need not refer to the decisions cited by the counsel for the parties. The

judgments reiterate well-settled legal positions regarding which there is no

controversy. As already observed, the case has to be decided on the basis of the

proceedings held on 13-7-1978 including the compromise application which is an

accepted document. In view of our decision that the decree dated 13-7-1978 was a

final decree, the question whether there was an oral arrangement between the parties

in October 1985 or there was a fresh family arrangement on 5-7-1992 becomes wholly

irrelevant. In partition matters it is always open to the parties to enter into fresh

arrangement. They may even decide to be again joint with respect to the properties

which means that they may throw the properties in the common pool again. The

parties are free to adopt whatever course of action they may choose in future by way

of mutual arrangement.”

[Emphasis supplied]

24. The said judgment puts it beyond doubt that in a partition it is not

necessary that each and every property must be partitioned and that the

parties are put in separate possession of respective portions of properties

falling to their share. Although the aforesaid judgment was rendered in the

context of a compromise having been arrived at by the parties and there

being more than one properties in the partition hotchpotch, yet the ratio

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thereof is clearly applicable to the facts of the present case. Here too, the

parties have accepted the partition plan as well as the decree whereof the

said partition plan is a part. Such acceptance of the partition plan and the

decree is strongly suggestive of the parties’ intent to keep the property joint

as partition thereof by metes and bounds is not possible. However, that by

itself may not derogate from the position that the decree in question is a

final decree and would require payment of stamp duty for attaining validity.

25. The Hon’ble Supreme Court has subtly explained the difference between a

preliminary decree and a final decree in the case Renu Devi vs. Mahendra

Singh & Others

5

. Paragraph 8 of the report which is apposite is extracted

hereinbelow:-

“8. A preliminary decree declares the rights or shares of parties to the partition.

Once the shares have been declared and a further inquiry still remains to be done for

actually partitioning the property and placing the parties in separate possession of

divided property then such inquiry shall be held and pursuant to the result of further

inquiry a final decree shall be passed. A preliminary decree is one which declares the

rights and liabilities of the parties leaving the actual result to be worked out in further

proceedings. Then, as a result of the further inquiries conducted pursuant to the

preliminary decree, the rights of the parties are finally determined and a decree is

passed in accordance with such determination, which is, the final decree. (See CPC by

Mulla, Vol. 1, 1995 Edn., p. 21.) The distinction between preliminary and final decree

is this: a preliminary decree merely declares the rights and shares of the parties and

leaves room for some further inquiry to be held and conducted pursuant to the

directions made in the preliminary decree which inquiry having been conducted and

the rights of the parties finally determined a decree incorporating such determination

needs to be drawn up which is the final decree.”

[Emphasis supplied]

26. Here again upon the final decree incorporating the partition plan prepared

upon conducting the inquiry in terms of Order XX Rule 18 of the Code and

5

(2003) 10 SCC 200

Page 14 of 15

upon the parties having accepted the same, the same must mean “ final

order for effecting a partition”.

27. Bimal Kumar (supra) has quoted with approval an extract from a judgment

of the Hon’ble High Court at Patna which reads thus:-

“23. In Raghubir Sahu v. Ajodhya Sahu the Division Bench of Patna High Court

had ruled thus:

“In the present case, the decree was passed on compromise. It was admitted that

by the compromise, the properties allotted to the share of each party were clearly

specified and schedules of properties allotted to each were appended to the

compromise petition. Therefore, no further enquiry was at all necessary. In such

circumstances, the decree did not merely declare the rights of the several parties

interested in the properties but also allotted the properties according to the respective

shares of each party. Therefore, it was not a preliminary decree but it was the final

decree in the suit.”

28. In the case at hand too the partition plan that allotted specific portions to

the parties has been made part of the decree which the parties have

accepted. That being so, it cannot be contended that the decree is not a

“final order for effecting a partition” and would not be exigible to stamp duty.

29. As regards the petitioner’s submission that no stamp duty should be

imposed as in the present case no new right has been created the same

cannot be accepted. In cases like partition, stamp duty is levied as tax on

the instrument of partition irrespective of the fact whether the transaction

creates new rights or not. Moreover, the final decree is a formal record of the

division of shares of the parties.

30. This Court therefore holds that the decree satisfies the definition of a “final

order for effecting a partition” and would therefore be chargeable with stamp

duty. The petitioner cannot be granted any relief of the nature sought for in

the present writ petition.

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31. Looking at the matter from another angle, the petitioner has approached

this Court in effect assailing an order of assessment of stamp duty. This

Court while exercising its power of judicial review under Article 226 of the

Constitution of India, would interfere only if the order or action impugned is

wholly arbitrary or without jurisdiction or patently illegal or in violation of

the principles of natural justice. None of the aforesaid cases has been made

out by the petitioner.

CONCLUSION:

32. In such view of the matter, WPO 506 of 2025 stands dismissed. No costs.

33. Urgent photostat certified copy of this judgment, if applied for, be supplied

to the parties upon compliance of all formalities.

(Om Narayan Rai, J.)