Calcutta High Court
Subrata Nundy vs The Collector Of Kolkata on 18 February, 2026
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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 onDecember 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 3/4th 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 August, 2023
thas 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. Thesaid 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 & Others1, 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 Debi & Others2 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 548Page 5 of 15
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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 arbitrator 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 thePage 6 of 15
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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 &
Another3 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 5th 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. Satya Bai4 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 by4 (2003) 7 SCC 452
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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 & Others5. 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
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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.)
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