1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7336 OF 2011 Nagoji Malhari Patil & Another ...Petitioner Versus Ramchandra Malhari Patil ...Respondent Mr.P.R.Arjunwadkar for the Petitioner Mr.P.D.Dalvi for the Respondent CORAM:- R.Y.GANOO, J. DATED:- 4th OCTOBER, 2011. P.C. 1. Rule. 2. Rule is made returnable forthwith. Learned Advocate Mr. Dalvi appearing on behalf of the respondent waives service. By consent, petition is taken up for hearing. 3. The respondent herein has filed Regular Civil Suit No.489 of 2010 in 2 the Court of Joint Civil Judge, Junior Division, Kolhapur (hereinafter referred to as the learned trial Judge). The respondent herein wanted to rely upon the document titled as Watani patra which is at page 32 of the petition. The petitioner filed application below Exhibit 18 before the learned trial Judge praying that the document be impounded as it does not bear the appropriate stamp. That application was rejected by the learned trial Judge by the impugned order dated 9.6.2011. This order is under challenge in this petition. 4. I have heard learned Advocates on both sides. I have perused the text of the order. The learned trial Judge has discussed very briefly what is the nature of the document as he understands. However, he has not given a prima facie finding that the document would fall in a particular item mentioned in the schedule of the Bombay Stamp Act, 1958 (hereinafter referred to as “Said Act”). In my view it was necessary for him to do so and thereafter decide whether the document is properly stamped. 5. Learned Advocate Mr. Dalvi, appearing on behalf of the petitioner submitted that according to him the document falls in item no.46 of 3 Schedule I to the said Act. A perusal of the said item would go to show that an institution of partition is required to be typed as per the stamp duty payable mentioned and it refers to the stamp duty payable on such a document is Rs.10/- for every Rs.500/- or part thereof of the amount or the market value of the separate share or share of the property. Even if the submission of the learned Advocate for the respondent is accepted, whether the document is typed on proper stamp or not will have to be ascertained with the assistance of the appropriate officer of the Superintendent of stamps. It is in these circumstances, the impugned order is required to be set aside, and in its place direction will have to be given to direct the learned trial Judge to impound the said document and forward it to the Collector, Kolhapur for appropriate action in accordance with the Bombay Stamp Act., 1958. Hence, following order is passed. ORDER i) Order dated 9.6.2011 passed by the learned Joint Civil Judge, Junior Division , Kolhapur, below Exhibit 18 in Regular Civil Suit No.489 of 2001 is set aside. The document titled as partition deed, copy of which is at page 32 of the petition is required to be impounded . Accordingly, aforesaid learned Judge shall impound the 4 said document and forward it to the Collector, Kolhapur for appropriate action on the said document as if it is improperly stamped. The concerned department of Collector at Kolhapur shall ascertain whether the proper stamp duty is paid. Only on the payment of appropriate stamp duty and penalty, if any, the document can be returned to the respondent. Upon payment of the appropriate stamp duty and penalty, if any, the respondent would be able to rely upon the said document. 6. There shall be no order as to costs. (R.Y.GANOO, J.)