Calcutta High Court
Dakshesh Umiyashanker Dave vs Maneshkumar Umiyashanker Dave & Ors on 13 August, 2025
OD- 2
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
C.S. No. 65 of 2023
Dakshesh Umiyashanker Dave
Vs.
Maneshkumar Umiyashanker Dave & ORS.
BEFORE :
The Hon'ble JUSTICE KRISHNA RAO
Hearing Concluded On : 01.08.2025
Order On : 13.08.2025
Appearance:
Mr. Shuvasish Sengupta, Adv.
Mr. Aurin Chakraborty, Adv.
Mr. Prasanta Naskar, Adv.
... for the plaintiff.
Mr. Soumyajit Mishra, Adv.
...for the defendant.
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ORDER
1. By an order dated 19th September, 2024, this Court disposed of the C.S.
No. 65 of 2023 on the basis of the Terms of Settlement entered between
the parties dated 17th September, 2024. At the time of disposal of the suit,
this Court directed to draw up the decree by making the Terms of
Settlement as part of the decree. In compliance of the order passed by this
Court dated 19th September, 2024 when the department was processing
for drawing up of final decree, the Learned Advocate for the plaintiff and
defendants have submitted their request along with the copy of the
judgment passed by the Hon’ble Supreme Court in the case of Mukesh Vs.
The State of Madhya Pradesh and Another dated 20th December, 2024
in Civil Appeal No. 14808 of 2024 and informed that the compromise
decree does not fall under the instruments mentioned in the Schedule and
that it only asserts the pre-existing rights and hence, the consent decree
will not operate as conveyance as no right is transferred and the same
does not require any payment of stamp duty.
2. On receipt of the said letter along with the judgment passed by the
Hon’ble Supreme Court above, the matter is placed before this Court for
clarification.
3. The plaintiff had filed the suit for decree for partition of the suit properties
as mentioned in Schedule – A, B, C, D, E, F and G. As per the case of the
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plaintiff in the plaint, the plaintiff and the defendants are brothers and
sons of Late Umiyashanker Chhaganlal Dave. The father of the parties
during his life time owned various movable and immovable properties. The
properties mentioned in Schedule – A, B, C, D, E and F are the immovable
properties and Schedule “G” are movable properties.
4. During pendency of suit, all parties to the suit entered into a Terms of
Settlement on 17th September, 2024, which reads as follows :
“TERMS OF SETTLEMENT
1. The plaintiff and the defendants are the full
blooded brothers and the only heirs and/or legal
representatives of Late Umiyashanker Chhaganlal
Dave and Late Shanta Ben Dave. The said
Umiyashanker Chhaganlal Dave expired on 17th
October, 1999 and his widow, Shanta Ben passed
away on 12th April, 2011.
2. Subsequent to the death of Umiyashanker
Chhaganlal Dave and Shanta Ben Dave, disputes
and differences arose between the plaintiff and the
defendants regarding the distribution of the estate
left behind by Late Umiyashanker Chhaganlal Dave,
since he died intestate.
3. At such juncture, the plaintiff filed the present suit
for partition of the properties, both movables and
immovable, left behind by Late Umiyashanker
Chhaganlal Dave, in accordance with the shares of
the respective parties.
4. During the pendency of the present suit, the
parties herein have arrived at an amicable
4settlement amongst themselves with mutual consent
and covenants.
5. In view of the mutual consent and covenants, the
parties do hereby agree as hereunder:
A) The parties herein have amicably settled the
disputes between themselves out of court.
B) The plaintiff, Dakshesh Umiyashanker Dave,
would be entitled to get the entire Flat No. 18
on the Second Floor of Southern Building at
premises No. 9, Dacres Lane, Kolkata,
consisting of 3 (three) bed rooms, 1 (one)
kitchen, 2 (two) bathrooms with total covered
area of 1250 sq. ft. (more or less), being
Schedule-A property to the suit forever, in
exclusion of others.
C) The plaintiff would also be entitled to get the
entire self-contained Flat at the backside on
the Ground Floor of the building named
“SHANTUMESH”, consisting of 2 (two) bed
rooms, 1(one) Hall, 1 (one) kitchen and 1
(one) bathroom with total covered area of
admeasuring 118.63 square meter
(equivalent to 1276.93 square feet)
approximately, lying situate at Survey No.
2337-4, F. P. No. 676, Opposite Shastri Bag,
Bank of India, Anand, Taluka and District-
Anand, Gujarat, Pin-388 001, being
Schedule-E property to the suit forever, in
exclusion of others.
D) The plaintiff is further entitled to receive the
Block/Survey No. 36 admeasuring an area of
1,189 sq. mtrs. at Village Morad, Taluka
Pellad, District-Anand, Gujarat, Pin-788 130,
within Morad Gram Panchayat, being part of
Schedule-F property forever, in exclusion of
others.
E) The defendant no.1, Maneshkumar
Umiyashanker Dave, would be entitled to get
the landed property, being Block/Survey No.
5379 admeasuring 15,816 sq. mtr. at Village
Morad, Taluka Pellad, District-Anand,
Gujarat, Pin-788 130, within Morad Gram
Panchayat, being part of Schedule-F
property forever, to the exclusion of others.
F) Further, the defendant no. 2, Yogeshkumar
Dave, would be entitled to get the piece and
parcel of land admeasuring 127.16 square
meter (equivalent to 1368.74 square feet)
approximately, together with brick built two
storied building standing thereon, being
numbered as Property, no. 160 at Village
Morad, near Chabutari, Opposite to Ramji
Temple, Taluka Pellad, District Anand,
Gujarat, Pin-388 130, being the Schedule-B
property forever, to the exclusion of others.
G) The defendant no. 2, Yogeshkumar Dave,
would also be entitled to get the self-
contained Flat at the front side on the
Ground Floor of the building named
“SHANTUMESH”, consisting of 2 (two) bed
rooms, 1(one) Hall, 1 (one) kitchen and 1
(one) bathroom with total covered area of
admeasuring 118.63 square meter
(equivalent to 1276.93 square feet)
approximately together with basement area
of 26.97 square meter (equivalent to 290.31
square feet) approximately, lying situate at
Survey No. 2337-4, F. P. No. 676, Opposite
Shastri Bag, Bank of India, Anand, Taluka
and District-Anand, Gujarat, Pin-388 001,
being the Schedule-D property forever, to the
exclusion of others.
H) The defendant no. 2 would further be
entitled to get the landed property, being
Block/Survey Nos. 44 and 53 aggregating to
4,756 sq. mtr. at Village Morad, Taluka
Pellad, District-Anand, Gujarat, Pin-788 130,
within Morad Gram Panchayat, being part of
Schedule-F property forever, to the exclusion
of others.
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I) Likewise, the defendant no. 3, Nishesh U.
Dave, would be entitled to get the piece and
parcel of land admeasuring 117.46 square
meter (equivalent to 1264.33 square feet)
approximately, together with brick built two
storied building standing thereon, being
numbered as Property no. 162 at Village
Morad, near Chabutari, Opposite to Ramji
Temple, Taluka Pellad, District Anand,
Gujarat, Pin-388 130, being the Schedule-C
property forever, to the exclusion of others.
J) The defendant no. 3, Nishesh U. Dave would
further be entitled to get the landed property,
being Block/Survey Nos. 74, 120 and 831
aggregating to 10,346 sq. mtr. at Village
Morad, Taluka Pellad, District-Anand,
Gujarat, Pin-788 130, within Morad Gram
Panchayat, being the residue part of
Schedule-F property forever, to the exclusion
of others.
K) It has been further agreed by and between
the parties herein that the moneys lying in
different fixed deposit bank accounts of Bank
of India, both at Burrabazar, Kolkata and
Anand, Gujarat branch, morefully and
particularly described in Schedule-G to the
plaint, the plaintiff and the defendant no. 1
would jointly be entitled to withdraw the said
sum together with accrued interest thereon
on the basis of the decree that would be
passed by the Hon’ble High Court at Calcutta
in C. S. No. 65 of 2023 and they would
disbursed and/or distributed amongst the
parties herein in equal shares.
6. The parties shall file the instant Terms of
Settlement before the Hon’ble High Court at Calcutta
and the suit for partition, being C.S. No. 65 of 2023
[Dakshesh Umiyashanker Dave Vs.- Maneshkumar
Umiyashanker Dave & Ors.] along with the pending
applications, if any, be decreed of on the basis of the
instant Terms of Settlement executed by and
between the parties herein.
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7. This Terms of Settlement shall be executed in
quintuplicate, one of each such copy is to be retained
by the plaintiff and the three defendants and one to
be filed before the Hon’ble High Court at Calcutta in
C. S. No. 65 of 2023 [Dakshesh Umiyashanker Dave
-Vs.- Maneshkumar Umiyashanker Dave & Ors.].
8. The parties herein agree and declare that they
have no claims and/or counter claims against each
other in respect of the properties which are subject
matter of C. S. No. 65 of 2023 and the said suit,
being C. S. No. 65 of 2023 [Dakshesh Umiyashanker
Dave -Vs.- Maneshkumar Umiyashanker Dave &
Ors.] be decreed in terms of the present Terms of
Settlement accordingly.
Dated this the 17th day of September, 2024.”
5. In the case of Mukesh (supra), the Hon’ble Supreme Court held that:
“13. In respect of the issue relating to
payment of stamp duty for mutation of the subject
land, it is the specific plea of the appellant that
“consent decrees” / “decrees” are not chargeable
with “stamp duty” under the Indian Stamp Act,
1899 as applicable to the State of Madhya
Pradesh. Section 3 of the Indian Stamp Act, 1899
provides the instruments which are chargeable
with duty and the same reads as under:
“3. Instrument chargeable with duty– Subject
to the provision of this Act and 8 the
exemptions contained is Schedule I, the
following instrument shall be chargeable with
duty of the amount indicated in the schedule
as the proper duty therefore, respectively, that
is to say-
(a) Every instrument mentioned in that
schedule which, not having been previously
executed by any person, is executed in India
on or after the first day of July 1899;
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(b) Every bill of exchange payable otherwise
than on demand or promissory note drawn or
made out of on or after that day and accepted
or paid, or presented for acceptance or
payment, or endorsed, transferred or
otherwise negotiable in India; and
(c) every instrument (other than a bill of
exchange or promissory note) mentioned in
that schedule, which not having been
previously executed by any property situate,
or to any matter or thing done, or to be done,
in India and is received in India:
Provided that, except as otherwise expressly
provided in this Act, and notwithstanding
anything contained in clause (a), clause (b), or
clause (c) of this section or in Schedule I, the
amount indicated in schedule I-A to this Act
shall, subject to the exemptions contained in
that Schedule, be the duty chargeable on the
instruments mentioned in clauses (aa) and
(bb) of this proviso, as the proper duty thereof,
respectively, –
(aa) every instrument, mentioned in schedule
I-A as chargeable with duty under that
schedule, which not having been previously
executed by any person, is executed in
Madhya Pradesh on or after the
commencement of the Central Provinces and
Berar Indian stamp (Amendment) Act, 1939;
and
(bb) every instrument mentioned in Schedule I-
A as chargeable with duty under that
schedule, which not having been previously
executed by any person, is executed out of
Madhya Pradesh on or after the
commencement of the Central Provinces and
Berar Indian Stamp (Amendment) Act, 1939
and relates to any property situated or to any
matter or thing done or to be done, in Madhya
Pradesh and is received in Madhya Pradesh:
Provided further that no duty shall be
chargeable in respect of- (1) any instrument
9executed by, or on behalf of, or in favour of,
the Government in cases where, but for this
exemption, the Government would be liable to
pay the duty chargeable in respect of such
instrument; (2) any instrument for the sale,
transfer or other disposition, either absolutely,
or by way of mortgage or otherwise, of any
ship or vessel, or any part, interest, share or
property of or in any ship or vessel registered
under the Merchant Shipping Act, 1894 or
under Act 19 of 1838, or the Indian
Registration of Ships Act, 1841 as amended
by subsequent Acts.”
From the above, it is apparent that stamp duty is
not chargeable on an order/decree of the Court as
the same do not fall within the documents
mentioned in Schedule 22 I or I-A read with Section
3 of the Indian Stamp Act, 1899. Though the
Collector of Stamps determined the stamp duty for
the subject land as per Article 22 of Schedule IA of
the Indian Stamp Act, 1899, which states about
conveyance, in this case, we have already held
that the compromise decree does not fall under the
instruments mentioned in the Schedule and that it
only asserts the pre-existing rights. Therefore, in
the facts of the case, the consent decree will not
operate as conveyance as no right is transferred
and the same does not require any payment of
stamp duty. Since the appellant has only asserted
the pre-existing right and no new right was created
through the consent decree, the document
pertaining to mutation of the subject land is not
liable for stamp duty.”
6. In the present case the plaintiff has filed the suit for partition of the
properties left behind by his father and during the pendency of the suit,
the plaintiff and the defendants have entered into a Terms of Settlement
on the basis of which this Court had decreed the suit. All the properties
involved in the suit were owned by their father during his life time. The
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parties to the suit claimed their respective shares in the suit properties by
way of inheritance.
7. The plaintiff as well as the defendant no. 2 has filed their supplementary
affidavits disclosing the details of the properties left behind by their father.
Taking into consideration of the details of the properties disclosed by the
parties by way of supplementary affidavits and schedule of properties
mentioned in the plaint, it reveals that the properties belongs to the father
of the parties and after the death of the father, they have acquired their
right, title and interest by way of inheritance.
8. In the case of Mukesh (supra), the plaintiff has filed the suit claiming that
he is the owner of the subject land and is in long and continuous
possession of the same by doing cultivation. In the case in hand, the
plaintiff has prayed for partition of the suit property left behind his father
and during pendency of the suit, the plaintiff and the defendants settled
their disputes and have entered into a Terms of Settlement. The father
was the owner of the properties and only after the death of their father,
the parties to the suit acquired their right by way of inheritance. The
plaintiff and the defendants were not having any pre-existing right over
the property. Mere by executing a Terms of Settlement on the basis of
which decree was passed, it cannot be said that stamp duty is not
chargeable. This Court finds that the case relied by the parties (the
plaintiff and the defendants) is distinguishable from the facts of the
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present case. The reference made by the department is accordingly
answered.
(Krishna Rao, J.)
p.d/-