Bhaskar Bhattacharya, J.@mdashThis revisional application under Article 227 of the Constitution of India is at the instance of a defendant in a suit
for partition and is directed against Order No. 3 dated July 15, 1999 passed by the learned District Judge. Howrah in C.R. No. 112 of 1999
thereby affirming Order No. 103 dated May 25, 1999 passed by the learned Civil Judge, Junior Division, 7th Court, Howrah in title Suit No. 41
of 1989. A partition suit valued at Rs: 14,000/- was decreed in preliminary form and no appeal has been taken by either of the parties against such
preliminary decree.
2. Pursuant to the application for final decree, an Advocate Commissioner was appointed. The said Commissioner submitted a report thereby
assessing the valuation at Rs. 38,388.88 paise. Although neither of the parties disputed the aforesaid valuation assessed by the Advocate
Commissioner, the learned Judge by Order No. 102 dated April, 1, 1999 opined that the pecuniary jurisdiction of the Court being limited to Rs.
15.000/-, the matter is required to be clarified and ultimately by Order No. 103 dated May 25, 1999 decided to send the matter to Collector.
Howrah for ascertaining the actual valuation of the property.
3. Being dissatified, the present petitioner preferred a revisional application u/s 115A of the CPC before the learned District Judge and by the
Order No. 3 dated July 15, 1999 which is the subject matter of the instant revisional application, the learned District Judge affirmed the said order
passed by the learned trial Judge with observation that the valuation assessed by the Advocate Commissioner cannot be taken as final. According
to him, in order to determine the correct valuation, a report may be reasonably obtained from the Collector concerned so that the parties may not
deprive the state of the actual court fees payable.
4. Being dissatisfied, the defendant has come up in revision.
5. Mr. Bhattacharya, the learned advocate appearing on behalf of the petitioner contends that since the suit was valued at Rs. 14,000/- and the
preliminary decree has already been passed without any objection as regards valuation, even if the Commissioner assesses the valuation of the
property as above Rs. 15,000/-. the learned trial Judge would still be competent to pass final decree. Therefore. Mr. Bhattacharya. submits, there
was no necessity of sending the matter to the Collector.
6. Mr. Chatterjee, the learned advocate appearing for the opposite parties has supported the contention of Mr. Bhattacharya.
7. In my view, once a suit for partition is decreed in preliminary form, the court is not competent to set aside the preliminary decree and return the
plaint to the learned advocate for the plaintiff for presentation before appropriate court even if it discovers at the final decree stage that the suit was
initially undervalued. [See Ratikanta Moyre vs. Sanatan Baidhya & Ors., reported in AIR 1930 Cal page 147 (D.B.))
8. Therefore, I agree with the learned counsels for the parties that for the purpose of ascertaining whether the court had pecuniary jurisdiction over
the subject matter of the suit, there was no necessity of sending the matter to the Collector because there was no scope of such further
investigation, the suit having already been decreed in preliminary form.
9. But this court cannot lose sight of the fact that a final decree effecting a partition is an Instrument of Partition as defined in Section 2(15) of the
Indian Stamp Act and according to Article 45 of Schedule 1A therefore which is applicable to West Bengal, the stamp duty payable on such
document should be the same duty payable on a Bond (Article No. 15) for the amount or the value of the separated share or shares of the
property subject to the note given in that Article.
10. There is no dispute with the proposition of law that a final decree in a partition suit should be engrossed on the requisite stamp paper and until
that is done and the Judge signs the decree so engrossed, the suit does not terminate nor does the legal title accrue in favour of the allottees.
11. Therefore if the learned Judge is in doubt about the valuation of share mentioned in the Commissioner''s report, he is entitled to seek the
opinion of the Collector in terms of Section 31 of the Indian Stamp Act. For the purpose of calling for such an opinion it is not necessary that the
deed in question must be an ""executed deed"". Even before actual execution, the opinion of the Collector may be sought.
12. Thus, although the learned revisional court below while affirming the order of the learned trial Judge wrongly mentioned about the payment of
Court fees"", in my opinion, there is no bar in referring the matter to the Collector for ascertaining the actual ""stamp duty"" payable on the final
decree.
13. I therefore modify the orders impugned to this extent that although the learned trial Judge is not competent to reassess the question of
pecuniary jurisdiction after passing of preliminary decree, he can. if he is of the opinion that a reference should be made to the Collector in terms of
Section 31 of the Stamp Act, make appropriate reference after complying with the formalities provided in the said section.
14. The matter is therefore remanded to the learned trial Judge for considering the matter afresh in the light of the aforesaid observation. Revisional
application is thus disposed of. No costs. S.B.M.