SUBRATA NUNDY v. THE COLLECTOR OF KOLKATA, STAMP AND REVENUE, OFFICE OF THE COLLECTOR & Ors.

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 Commissioner‟s report and the Deed of Conveyance dated 5th 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 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 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:

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.

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.

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.

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:

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 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.

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.

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.

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:

Heard Learned Advocates appearing for the respective parties and considered the material on record.

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.

Section 2(15) of the said Act of 1899 is relevant for the present purpose. The same reads thus:-