THE HONOURABLE SRI JUTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR APPLICATION No.41 of 2008 In APPLICATION SR.Nos.2740 and 2741 of 2008 In C.S.No.14 of 1958 JUDGMENT: This case comes before us, on a reference made by the learned Single Judge Justice P.S.Narayana as per orders dated 31-12-2008 for laying down the principle on the following question: ‘Whether the stamp duty, which had been already paid on the assignment deeds, to be adjusted or to be taken into consideration for the present purpose of engrossing the final decree or not, in the light of the decisions placed before this Court and also the provisions of the Indian Stamp Act, 1989?’ While referring the said question, the brief account as given is that this present application No.41 of 2008 is filed directing the Registry to draft and draw a final decree, which has been passed already in Applications SR.Nos.2740 and 2741 of 2005 in favour of the applicants without insisting upon the payment of any further stamp duty or depositing stamp papers and furnish the same to the applicants herein and for further orders. In the affidavit stated to have filed in support of this application, it was stated that the petitioners placed reliance on a Memo No.28908/JA1/2004-1 dated 5-11-2004. Apart from the memo reliance is also placed in Exs.P2 and P.3 and other correspondences and the decisions reported in Dr.Chiranji Lal (D) by L.Rs. Vs. Hari Das (D) by L.Rs[1], Renu Devi V. Mahendra Singh and others[2] a n d Abdul Hassain Khan V. Mt.Mahmudi Begam[3]. For convenience sake the Memo dated 5-11-2005 is extracted hereunder: “The attention of the Collector, R.R.District is invited to the references cited. In the reference 6th cited, Govt, after examining the entire matter referred to by the Collector in the reference 1st to 3rd cited and the report of the Chief Commissioner of Land Administration in the reference 4th & 5th cited, have decided to entrust the matter to CCLA for examining the issue thoroughly by conveying meeting of all concerned officials and then submit a detailed report to Government covering all the lands involved in C.S.No.14/58 village wise, Sy.No.wise. In the reference 7th cited, the Sopecial Chief Secretary & Chief Commissioner of Land Administration after conducting number of meetings observed that since the title of private parties in respect of the lands in C.S.No.14/58 has become final as oper the preliminary decree in C.S.No.14/58, the claim of the Government in all such cases will be subject to Supreme Court order already passed in SLP.No.10622, 10623/01 and 4463 to 4470/02. The Special Chief Secretary & Chief Commissioner of Land Administration has stated that, it is clear that no useful purpose will be served in pursuing these cases any longer and also stated that, there is no option left to the Govt, except conceding the request of the purchasers from the decree holders to effect mutation in their favour. The special Chief Secretry & Chief Commissioner of Land Administration informed that, the Commissioner (Legal Affairs) has given his opinion saying that there is no need for pressing the court for passing the final decree. He had expressed his opinion that a preliminary decree is regarded as embodying the final decision of the court passing that decree i.e., there is not much of difference between a preliminary decree and a final decree. The Spl.C.S & CCLA has therefore requested the Government that the Collector, Ranga Reddy District may be permitted to effect mutation in the land records in respect of the lands in Sy.Nos.145, 163 and 172 of Hydernagar and in Sy.No.77, 78, 79 and 80 of Hafeezpet village of Balanagar and Serlingampally Mandals, Ranga Reddy District covered under C.S.No.14/58, following various orders of the Courts. Govt. after examining the matter hereby permit the Collector, Ranga Reddy District to effect the mutation in land Records in respect of the land sin Sy.No.145, 163 and 172 of Hydernagar and in Sy.No.77, 78, 79 and 80 of Hafeezpet village of Balanagar and Serilingampally Mandal respectively of Rangareddy District as recommended by the Special Chief Secretary & Chief Commissioner of Land Administration, subject to following the provisions of Urban Land (C&R) 1976 A.P.Agricultural Ceiling Act, 1973 and A.P. ROR Act, 1989 etc., and also following various orders of Courts. The Collector, Ranga Redy District is requested to take necessary action accordingly and not to seek any further clarification.” It was the case of the applicants that once a requisite stamp has already been collected and again insisting for the payment of stamp duty is unjust and impermissible even as per the aforesaid memo. However, on behalf of Revenue, the learned Government asserted that there should be no loss of revenue to the Government and having regard to the definition of instrument under Section 2 (14) of the Indian Stamp Act, 1899 read with Section 2 (15) thereof. Both these instruments being different, merely because some payment had been made for a particular purpose that would not inure to the benefit of the applicants and unless and until the stamp duty is paid in accordance with law, the final decree cannot be engrossed. Thus, the stand on behalf of the Revenue is to the effect that registration of assignment deed is something different from passing of final decree and each instrument being a separate instrument hence chargeable independently, and thus, the stamp duty paid earlier cannot be adjusted for the subsequent deeds. Though, the learned Government Pleader did not deny the issuance of the aforesaid correspondence including the memo, however, he stated that will not inure to the benefit of the applicants in this regard, and therefore, the adjustment as sought for is impermissible in law. Replying this, the contention on behalf of the petitioners advanced was to the effect that such a course of compelling the applicants once again to pay the stamp duty is nothing but penalizing them twice for the same purpose. Therefore, in view of the aforesaid rival contentions, the question of importance arose on a principle, which has to be followed and thus there is necessity for a decision thereon. Even though by the particular point of time the stamp duty had been paid, and it is no doubt explained that the present purpose of engrossing the final decree also is in continuity thereof, however, taking object of the stamp duty into consideration, it needs to be elicited more aptly. Heard Sri E.Manohar, the learned Senior Counsel appearing on behalf of the applicants and the learned Government Pleader for Revenue. The backdrop, in which the present situation arises, necessarily, needs to be adverted to, which has been sufficiently mentioned in the very affidavit filed in support of the application and without much denial on the correctness thereof reads to the fact that Smt.Didarunnissa Begum and others filed C.S.No.14/1958 for partition of Matruka properties of Kursheed Jahi Paigah and on compromise there was a preliminary decree on 28-6-1963. The majority decree holders threunder sold their shares under the preliminary decree to the H.E.H. Nizam and Nawab Kasim Nawaz Jung, who have been impleaded as defendants 156 and 157 respectively. Later the H.E.H Nizam i.e., defendant No.156 sold his share to M/s.Cyrus Investments Limited, which was also again added as defendant No.206 in the suit. As per orders passed in Application No.139/71 in C.S.No.14/1958 dated 31-01-1976, this Court referred the matter to the District Collector under Section 54 of the Code of Civil Procedure for division and distribution of suit schedule properties including the land in Sy.No.163 of Hydernagar village among the decree holders. The said Sy.No.163 constituted an item No.38 in Scheule-IV appended to the preliminary decree, which was totally admeasuring Ac.175-06 gts and the same was allotted to the aforesaid defendant No.206 and the defendant No.157. Since the defendant No.157 died, his legal representatives were added as defendants 334 and 335. Subsequently, the said defendant No.206 assigned part of its share to the extent of 18000/87575th and 7575/87575th share, which comes to an extent of Ac.18-00 gts and ac.7-23 gts, respectively, out of the total extent of Ac .87-23 gts in the said Sy.No.163, to the applicants in this application under two registered assignment deeds No.288/2004 and 290/2004 dated 15-09-2004 dated 15-9-2004. The legal representatives of the defendant No.157 viz., the defendants 334 and 335 were also parties to the said assignment deeds acknowledging the share of defendant No.206. At the time of registration of these two documents, the registering authority collected Rs.1900/- and Rs.5400 towards the stamp duty and Rs.200/- and Rs.550/- towards registration fee respectively on both the documents. Basing on these two registration assignment deeds, the applicants had filed Application No. 1011/2004 and batch for impleading them as defendants and to recognize their assignment. Thereupon, this Court as per orders dated 18-1-2005 allowed the applications and impleaded as defendants 840 to 842 and 844 to 846 and recognized the assignments in their favour. Therefore, these applicants have filed the aforesaid mentioned applications in Application Nos.726 and 727 of 2007 for passing a final decree in their favour as assigned to them under the decree. These applications had to be dealt initially before it is processed and numbered as the Applications (SR) Nos.2740 and 2741 of 2005. In the meanwhile, on the applications filed by some of the decree holders/assignees before the Government, the mutation was sought for in respect of the lands as allotted. Thereupon, the Government in consultation with the Chief Commissioner, Land Administration A.P, Hyderabad, as per orders in Memo No.28908/JA-1/2004-1 dated 5-11-2004, permitted the District Collector, Ranga Reddy to effect mutation in the revenue records in respect of lands in Sy.Nos.145, 163 and 172 of Hydernagar village in Balanagar Mandal and Sy.Nos.77,78,79 and 80 of Hafeezpet village of Serlingampally Mandal in favour of the purchasers from the decree holders by treating the preliminary decree as final decree. Basing on these orders, these applicants submitted petitions dated 8-11- 2004 and 10-11-2001 to the Collector, Ranga Reddy District for effecting the mutation to an extent of Ac.7-23 gts as stated above under the aforesaid registered assignment deed No.290/2004 dated 15-9-2004 and extent of Ac.18-00 gts under registered assignment deed No.288/2004 dated 15-9-2004 in the said Sy.No.163 and for issuance of pattedar passbooks along with the title deeds under the A.P. Rights in Land and Pattedar Pass Books Act, 1971. These petitions were referred to the Deputy Collector and M.R.O, Balanagar Mandal with a direction to take necessary action as per the aforesaid government orders in Memo No.28908/JA-1/2004-1 dated 5-11-2004 without any loss of revenue to the government. Thereupon, the Collector issued a letter dated 28-12- 2004 to the M.R.O, Balanagar and Serilingampally Mandals, Ranga Reddy District to take necessary action for registration of the lands in all the cases in C.S.No.14 of 1958 after registration of the documents by paying the stamp duty and to see that there should be no loss of revenue to the Government. Thereupon, the M.R.O, Balanagar Mandal by his letters No.B/504/2005 and B/15360/2004 dated 29-1-2005 directed the applicants to file their registered documents in respect of the lands in Sy.No.163 for the purpose of mutation. Thereupon, the applicants filed these two registered assignment deeds before the said authority and the M.R.O again issued notices on 29-1-2005 purportedly under sub-section (3) of Section 5 of Andhra Pradesh Record of Rights in Land and Pattadar Pass Books Act, 1971 to all the persons interested after calling for objections, if any. In response to the said notices, the assignor of the applicants by letter dated 12-2-2005 confirmed that they have alienated their share to an extent of Ac.7-23 gts and Ac.18-00 in Sy.No.163 as stated above in pursuance of the registered assignment deeds. Thereupon, the M.R.O, Balanagar issued a letter dated 3-3-2005 requesting the Joint Sub-Registrar, R.O, Hyderabad to clarify as to whether the registered assignment deeds can be considered as registered sale deeds or not and whether the stamp duty paid on registered assignment deeds in respect of the shares is sufficient for the purpose of effecting the mutation in respect of the aforesaid extents. In reply the District Registrar, Ranga Reddy District by letter dated 25-06- 2005 clarified that as per Memo No. CCRA1/5784/2005 dated 11-5-2005 issued by I.G. Registration and Stamps, the stamp duty of 5% is chargeable on the market value of the land involved under Article 20 of Schedule 1A of Indian Stamp Act. Accordingly, in compliance thereto, the applicants have paid Rs.7,55,500/- towards 5% of stamp duty on market value along with a penalty of Rs.4500/- in the office of the District Registrar, Ranga Reddy district vide file No. 3572/AR/2005 dated 28-6- 2005 and the same was endorsed on the aforesaid two assignment deeds. However, later in view of certain disputes as to which of the registrar office is having a jurisdiction and in compliance of the notices and as per Memo.No.1426/G1/2006 dated 18-2-2006 issued by the District Registrar, Ranga Reddy, applicants paid an amount of Rs.21,72,050/- for Ac.18-00 gts of land covered under the document Nos.288/2004 and Rs.1,58,975/-, this is in addition to Rs.7,55,500/- for Ac.7-23 gts covered by the Document No.290/2004, under Challans Nos.330215 and 330216, dated 20-2-2006 of S.B.H, Kukatpally Branch towards deficit stamp duty on the market value. Thereupon, the applicants have resubmitted the registered documents before the sub-Registrar, Kukatpally along with the said challans for which receipts were issued in receipts Nos.6217 and 6218 with an endorsement on the documents, which were re-numbered as Document Nos.1554 and 1555 of 2006, dated 21-02-2006 in Book-I and annexed the certificate of presentation to the said documents. At this point of time, certain objections were raised as against the passing of final decree in between the rival claimants and the applicants. Thereafter, there was a compromise by amicably settling all such disputes and the said compromise memo with Application (SR) No.4359 of 2007 was filed before this Court to record the same and pass final decree. Accordingly, the said application was ordered as per order dated 23-8- 2007 recording the terms of the said compromise and passed the final decree. Thus, there is a final decree in favour of the applicants herein for an extent of Ac.4-00 gts in Sy.No.163 against their original entitlement of Ac.25-23 gts under the aforesaid two assignment deeds. Though, it is stated by the applicants the stamp duty has to be paid as per the final decree, but in view of the payment and compliance thereof earlier as mentioned above, there is no necessity of repayment of any stamp duty. Hence, the present application. During the course of the argument, it has been pointed out that denial in regard to the claim made on behalf of the applicants herein and certain objections are being raised by the parties. However, having regard to the scope of the enquiry on the question as referred to by the learned single Judge, we are not going into the same. With the aforesaid documents, and referring to the rival contentions, it necessitates considering the relevant provisions in this regard. Section 2 (14) of the Indian Stamp Act reads as follows: “Instrument”:- “Instrument” includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. Section 2 (15) of the Said Act reads as follows: “Instrument of Partition”:- “Instrument of partition” means any instrument whereby co-owners of any property divide or agree to divide such propeorty 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 arbitrator directing a partition [ and a memorandum regarding past partition;] Much reliance is placed on behalf of the applicants herein on the aforesaid Memo No.28908/JA-1/2004-1 dated 5-1-2004, which has been extracted above. On a bare reading of the aforesaid memo itself it would amply show that it is not the case of the parties to fall back on repayment of stamp duty for the purpose of giving effect to the transaction, which had its original finality. It is only, taking into consideration the chequered events, the litigation and the fact that this Court had held that the government does not have any right, title or interest of whatsoever in respect of the lands in question; therefore, there is a direction to effect mutation in the land records in respect of the lands in question. There is also no serious denial on the part of the Revenue and even by the learned Government Pleader during the course of the arguments that the applicants about the payment of 5% stamp duty initially at Rs. Rs.7,55,500/- and Rs.4.500/- respectively and later Rs.21,77,450/- and Rs.1,58,975/-. These payments apparently are only towards the final transaction of conveyance or transfer whatever can be called in pursuance of the said assignments in favour of the applicants herein. Curious enough, the entire gamut and all the steps taken by the parties to the decree, though a preliminary one, passed as long as back as on 28-6-1963 is based on a compromise wherein once for all, the shares and entitlement were settled between the parties. It is amongst these shares were recognized as entitled to their respective shares, the applicants claim as assignees and purchasers therefrom. Therefore, in the circumstances, the said preliminary decree for all the purpose is a final one in respect of the shares to which they are entitled to and the extent of the land under such each share. Thus, once the applicants have approached the authorities for effecting mutation as per the provisions of Andhra Pradesh Record of Rights in Land and Pattadar Pass Books Act, 1971 and there is already payment of aforesaid substantial amounts towards stamp duty i.e., at the required rate of 5%, there cannot be any impediment nor any doubt as to calling upon the applicants to make further payments or to warrant any such exercise. It is needless to mention that the Stamp Act is a taxing statute, and necessarily, it has to be interpreted in letter as contemplated under it provisions. In respect of a transaction, there is no necessity of repeated payment of stamp duty, even though, it involves more than one exercise. It may not be out of place to mention that even as per the provisions of the amended provisions of the Stamp Act in Andhra Pradesh, if a stamp duty is already paid even under the agreement, the same is adjustable at the time of final sale decree. Therefore, the theory of adjustment is only based upon one time payment. Thus, we are of the view, prima facie, that having regard to the fact that the applicants have already paid the stamp duty as they were called upon in the mutation proceedings and that itself would suffice that required stamp duty is paid for the purpose of effecting the final decree. It is not the contention on behalf of the Revenue by the Government Pleader that the said stamp duty, which has been paid as mentioned above, is not commensurate to the required rate of duty as per the provisions of the Act. In the circumstances, we hold that the said payment would suffice enough to meet the requirement under the law. In this connection, the reliance is placed by the applicants in Abdul Hassain Khan v. Mt. Mahmudi Begam[4], Chiranji Lal v. Hari Das[5] and Renu Devi v. Mahendra Singh[6]. In Abdul Hassain Khan (supra 4) it was held as under: “It is not permissible to ad to or subtract from the definition as given in S.2 (15). Similarly it would be illegal to engraft any exceptions or impose any limitations on Art.45 beyond those that are clearly set forth in the provisos. Every final order effecting a partition passed by any civil Court is an instrument of partition and so is every award by an arbitrator directing a partition. Standing by itself therefore either of the two is chargeable with duty of the amount indicated in Art.45 as the proper duty therefore. If therefore the award had been stamped with proper duty, 12 annas only would have sufficed for the decree, but if it is not so stamped there is no provision of law which can save the decree from stamp duty as prescribed in Art.45 Sch.I:” In Chiranji Lal (supra 5), the Supreme Court held as under: “A decree in a suit for partition declares the rights of the parties in the immovable properties and divides the shares by metes and bounds. Since a decree in a suit for partition creates rights and liabilities of the parties with respect to the immovable properties, it is considered as an instrument liable for the payment of stamp duty under the Indian Stamp Act. The object of the Stamp Act being securing the revenue for the state, the scheme of the Stamp Act provides tht a decree of partition not duly stamped can be impounded and once the requisite stamp duty along with penalty, if any, is paid the decree can be acted upon. The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing a stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. There is no rule requiring the Court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp papers cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and only thereafter the period of twelve years will begin to run would lead to absurdity.” In Renu Devi (Supra 6), the Supreme Court held as under: “In the instant case the decree dated 13-2-1978 passed in the suit for partition and the contents of the compromise application with the three schedules of properties annexed thereto shows that the property actually falling to the share of each of the 3 groups were actually defined and given to the party entitled thereto. Therefore for all practical purposes the decree dated 13- 2-1978 was a final decree. Under O.20 Rule 18 it is not necessary to pass a preliminary decree; the Court may pass preliminary decree if it is required. If the rights of the parties are finally determined and no further inquiry remains to be held for the purposes of completing the proceedings in partition then there is nothing in law which prevents the Court from passing a final decree in the very first instance. Often such are the cases which are based on compromise. The present one is such a case. However, still one of the parties sought for a final decree being drawn up. The Court and the parties acted under the misapprehension that the decree dated 13-2-1978 was a preliminary decree and, therefore, a final decree was need to be drawn up. The final decree dated 24-5-1979 is nothing but a reproduction of the schedules contained in the preliminary decree dated 13-2-1978. The only difference is that the decree dated 24- 5-1979 is engrossed on stamp papers which the decree dated 13- 2-1978 was not. The decree dated 13-2-1978 being a decree effecting partition by metes and bound ought to have been engrossed on requisite stamp papers. The deficiency stood supplied by the same being rewritten on stamp papers on 24-5- 1979 The event dated 24-5-1979 validated the decree dted 13-2- 1978 and it became effective and binding with effect from 13-2- 1978 itself.” Even on a reading of the principles as reiterated in the aforesaid decisions, what all contemplated is the required payment of Stamp duty for giving effect to the