1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR S.B.Civil Writ Petition No.7169/2005 Kushal Chand Sacheti & Ors. Vs. The State of Rajasthan & Ors. Date of Order :- 08.07.2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Ajeet Bhandari with Mr.Kinshuk Jain, for the petitioners. Mr. Nalin G. Narain, Dy.G.A. for the State. The petitioners have challenged the order dated 20.06.2005 and the order dated 04.07.2005, both passed by the Collector (Stamps), Circle Ajmer, Ajmer ('the Collector', for short). By the formal order, the learned Collector had held that the partition deed dated 19.02.2002, entered between the petitioners, was in fact a conveyance -deed. Therefore, the stamp duty paid on the partition deed was improper. For, the stamp duty should have been paid treating the deed to be that for conveyance and not for partition of property. Vide latter order, dated 04.07.2005, he had upheld the formal order. The facts of the case are that late Seth Heera Chand Sacheti was karta of Hindu Undivided 2 Family M/s. Birdhi Chand Gulab Chand. The HUF M/s. Birdhi Chand Gulab Chand was owner of the following properties:- (i) Haveli known as Sancheti Bhawan bearing AMC No.262 C/42 (Old No.137), C/4 situated at Lakhan Kotri, Ajmer. (ii) Property bearing No.882/08 known as “Sacheti Yatri Niwas”, Madar Gate, Ajmer. In 1980, an oral partition took place of Sacheti House Situated at Lakhan Kotri, Ajmer bearing House No.AMC 262-C/42 between the heirs of Shri Ratan Chand Sacheti, amongst the eldest brother and four other brothers namely, Shri Jatan Chand Sacheti, Daulat Chand Sacheti, Shri Kushal Chand Sacheti and Inder Chand Sacheti. In order to reduce the oral partition into writing, on 19.02.2002 a partition deed was drawn up partitioning the ancestral property i.e. “Sacheti Yatri Niwas”. The partition took place between the families of aforesaid five brothers; the partition deed was duly registered before the Sub-Registrar. Subsequently, a partition dated 01.12.2004 took place between the member of HUF of Shri Kushal chand Sacheti and the property was further sub-divided between him and his two sons, namely Kamal Chand Sacheti & Shekhar Chand Sacheti. The said partition deed was stamped for Rs.10,000/-, in accordance with 3 notification No.F4(14)(FD)/Tax Div/98-52 dated 09.07.1998; the registration fee of Rs.25,300/- was paid. Vide letter dated 17.03.2005, respondent No.3 referred the case to respondent No.2 under Section 51 of the Rajasthan Stamps Act, 1998 (hereinafter referred to as “Act”). Notices about the reference was issued to the petitioners. On receipt of notices, the petitioners submitted a reply in which it was submitted that there has been a partition of the property of Kushal Chand Sacheti HUF and there is no sale of the property. But, without considering the reply, respondent No.2 vide order dated 20.06.2005 held that the partition deed was not a partition, but was a conveyance. Therefore, the market value of the property which was Rs.97,04,029, a stamp duty of Rs.7,76,330/- was payable and the registration fees amounting to Rs.25,000/- was also payable. Thereafter, the petitioners submitted an application under Section 52 of the Act before the respondent No.2 in which it was submitted that the partition has been wrongly construed as a conveyance as is evident from its perusal. Thus, the same may not be treated as a sale deed, but as partition deed. However, vide order dated 04.07.2005, the respondent No.2 dismissed the 4 petitioner's application with the observation that there is no apparent mistake on the face of the record. Hence this writ petition before this Court. Mr. Ajeet Bhandari, with Mr. Kinshuk Jain, the learned counsel for the petitioners, has contended that initially the property was partitioned between five sons of Shri Heera Chand Sacheti vide partition deed dated 19.02.2002. According to the said partition deed, the portion marked as “A” was assigned to Shri Kushal Chand Sacheti and his “HUF”. Therefore, portion marked as “A” belongs to Shri Kushal Chand Sacheti and his “HUF”. Subsequently, vide partition deed dated 1st December, 2004, the said property was further sub-divided or re-partitioned between Kushal Chand Sacheti and his two sons Kamal Chand Sacheti & Shekhar Chand Sacheti. According to the learned counsel, partition is merely a demarcation of the respective shares of the co-sharers. Therefore, there is no conveyance or transfer of the property from one living person to other or from one sharer to another. Secondly, in a partition, the title is not transferred, only shares of the particular property are specified. Therefore, the property 5 was not conveyed from one person to another. Thirdly, the impugned order dated 20.06.2005 is a non-speaking order. For, no reason has been assigned for treating the partition deed as a conveyance. Moreover, the order dated 04.07.2005 has not appreciated the contentions raised before the learned Collector. On the other hand, Mr. Nalin G. Narain, Dy.G.A. for the State, has contended that in the partition deed dated 1st December, 2004, certain shops, acquired by Kushal Chand Sacheti by way of lease hold rights, were also partitioned, but the same were not part of the HUF property. Thus, there was a transfer of property in favour of Kushal Chand Sacheti. Thus, the learned Collector was justified in holding the partition deed as falling within the definition of word “conveyance”. Hence, he has supported the impugned orders. In rejoinder Mr. Ajeet Bhandari has contended that in fact the shops, which were acquired by Kushal Chand Sacheti by way of lease hold rights, were acquired by him for his own use. By way of abundant caution, he has merely 6 mentioned that he will keep the shops with himself, while relinquishing his interest in the HUF property. Since Kushal Chand Sacheti is keeping the property for his own use, the concept of transfer of property does not even arise. Heard the learned counsel for the parties and perused the impugned orders. It is, indeed, a settled principle of law that partition of a property is nothing more than specification of particular portion of the property which are to be assigned to particular person. Therefore, there is no transfer of title as even before the partition, the persons continue to be co-owners of the property. Since there is no transfer of the title, the very concept of conveyance is alien to partition deed. Moreover, no title is being transferred from one person to other. A bare perusal of partition deed dated 1st December, 2009 clearly reveals that the portion which was marked in the partition deed dated 19.02.2002 as part “A” was further sub-divided between Kushal Chand Sacheti and his two sons named above. Therefore, no title was being transferred from Kushal Chand Sacheti to his two 7 sons. In fact, both the his sons and Kushal Chand Sacheti were co-owners of the property Marked as part “A”. As far as the shops kept by Kushal Chand Sacheti are concerned, he was the holder of lease holds rights over the said shops. Even after the partition, he continued to hold the interest over the said shops. Therefore, the shops were not transferred to anyone else. The existence of the shops and the fact that Kushal Chand Sacheti would continue to hold the shops, these facts have been mentioned in the partition deed in order to explain the reason why he is relinquishing his rights over HUF property. But such an explanation possibly cannot turn a partition deed into a conveyance. Unfortunately, the order dated 20.06.2005 does not give a cogent reason as to why the partition deed is being considered as a conveyance. The only reason given is that the property was already partitioned vide partition deed dated 19.02.2002. The learned Collector has merely observed that “पुनः ͪवभाजन पğ जो Ĥèतुत ͩकया गया है वे ͪवभाजन पğ कȧ Įेणी मɅ नहȣं होने से कनवɅस कȧ Įेणी मɅ आता 8 है।”. However, no cogent reasons have been assigned for drawing this conclusion. However, the learned Collector has ignored the fact that partition deed dated 1st December, 2004 merely further sub- partitions the property. Therefore, the impugned order is not a speaking order. Moreover, a bare perusal of the order dated 04.07.2005 clearly reveals that none of the contentions raised by the petitioner were even addressed to. Thus, the said order suffers from the virus of non-application of mind. In the light of these facts and reasons, this Court has no hesitation in quashing and setting aside the orders dated 20.06.2005 & 04.07.2005. Therefore, the orders dated 20.06.2005 and 04.07.2005 are, hereby, quashed and set aside. The Collector (Stamps) is directed to treat and accept the partition deed dated 1st December, 2009 as a partition deed within a period of one months from the date of receipt of certified copy of this judgment. With these observations, the writ petition is allowed. (R.S.CHAUHAN)J. Manoj Solanki