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Suit No. 29 of 1967, decided on 8th December 1975.

S. 2(15) read with Partition Act (IV of 1893), S. 2 and Civil Proce dure Code (V of 1908), O. XX, r. 18(2)-Stamp duty--Partition of property not being otherwise convenient, property ordered to be sold-Order of sale to be followed by further action distributing proceeds of sale amongst heirs according to shares determined by Court-Preliminary decree directing sale of property, held, merely assigns an act resulting in achievement of ultimate object of partition and consequently an instrument of partition as defined in S. 2(15), Stamp Act, 1899, and has to be stamped.

Kunwar Mukhtar Ahmed for the Decree-Holder.

Nizam Ahmad for the Judgment-Debtor.

Ghulam Ali Memon, A.-G, pursuant to Court Notion.

An objection has been raised that this decree is not executable for, it has not been drawn on the requisite stamp paper as required under the Stamp Act, and on that account it had been ordered on 10-4-1975 that notice be given to the Advocate-General for his assistance on this question of law t have heard the learned Advocate-General, beside the counsel for the decree holder and the judgment-debtor on this question.

This was a suit for partition of property i. e. plot No. 36 with construc tions thereon in the Muslimabad Co-operative Society, Karachi and it was ordered that this property be sold under section 2 of the Partition Act, 1893 read with Order XX, rule 18 (l), C. P. C., and the sale proceeds be distributed amongst the heirs of the owner late Mukeemuddin Ansari. Pursuant to this the Execution Application is filed seeking attachment and sale of this property and the dispute is, whether the decree is for partition or for sale. According to Mr. Mukhtar Ahmad, learned counsel for decree-holder, the decree is a final decree for sale to which the procedure laid down under section 7 of the Partition Act, 1893 read with rule 552 of the Sind Chief Court Rules will be applicable. But the learned Advocate-General has referred to the Judgment and findings on issue Nos. 9 and 10 and pointed out that reference to Order XX, rule 18, C. P. C. itself shows that this decree is preliminary decree within the meaning of that order which is as follows :

"18(2).-If in so far as such decree relates to any other immovable pro perty or to movable property, the Court may, if partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."

The final order according to him would be passed only after the property is sold and proceeds out of the same are to be distributed. The learned Advocate-General in this context referred to section 2 of the Partition Act which may also be usefully reproduced as under :-

"(2) Whenever in any suit in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property, and distribution of the proceeds would be more beneficial for all the shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds."

Obviously, therefore, the property has been ordered to be sold only because the partition of the same is otherwise not convenient. Mr. Mukhtar Ahmad has not pointed out why this order of sale of property is a final decree, although it is clearly to be followed by a further action whereby the proceeds of the property sold will have to be distributed amongst the heirs according to the shares as determined by the Court.

This preliminary decree directing the sale of the property only assigns an act whereby the ultimate object of the partition of property is to be achieved and is, therefore as rightly pointed out by the learned Advocate-General as well as by Mr. Nizam Ahmad, the learned counsel for the Judgment-Debtor an instrument of partition within the meaning of the term defined in section 2 (15) of the Stamp Act, II of 1899. Sale is only an interim measure and does not change the character of the decree from being that of Partition. I entirely agree with the opinion of the learned Advocate-General in this respect. Under the provision of the Stamp Act this decree has to be stamped. The objection is therefore allowed.

S. A. H. Orders accordingly.

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