Stamp duty on partition decrees bars execution where a final decree effects partition through sale and distribution of proceeds.

A final decree directing sale of joint property and distribution of the sale proceeds in fixed shares was treated as an instrument of partition because it prescribed the mode of partition and fell within the statutory definition covering final civil court orders effecting partition. On that basis, it had to be duly stamped before enforcement. The text also states that objection to insufficient stamping could be raised in execution and in possession proceedings, because a court cannot act on an unstamped or insufficiently stamped instrument and any order founded on such a defect is vulnerable as a nullity for want of jurisdiction.

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Issues: (i) whether a final decree directing sale of joint property and distribution of sale proceeds in fixed shares was an instrument of partition requiring stamp duty; and (ii) whether objections based on absence of proper stamping could be raised in execution and in proceedings for delivery of possession.

Issue (i): Whether a final decree directing sale of joint property and distribution of sale proceeds in fixed shares was an instrument of partition requiring stamp duty.

Analysis: The decree did not merely record shares but prescribed the mode by which partition was to be effected, namely sale of the joint house and division of the proceeds according to the declared shares. Such an order fell within the statutory definition of an instrument of partition, which includes a final order of a civil court effecting partition. Being chargeable as such, it was required to be engrossed on proper stamp paper under the relevant provision governing instruments of partition.

Conclusion: The final decree was an instrument of partition and was liable to be duly stamped; the objection was well founded.

Issue (ii): Whether objections based on absence of proper stamping could be raised in execution and in proceedings for delivery of possession.

Analysis: The statutory bar against acting upon an insufficiently stamped instrument prevented the executing court from proceeding on the decree. A decree or order passed in breach of such a bar was treated as one made without jurisdiction and therefore as a nullity. A jurisdictional defect of this kind could be set up whenever enforcement was sought, including at the stage of execution and in collateral proceedings for possession.

Conclusion: The objections were maintainable in execution and the resulting sale and possession proceedings could not be sustained.

Final Conclusion: The appeals succeeded, the objections were upheld, and the auction sale proceedings, sale certificate, and warrant of possession were set aside.

Ratio Decidendi: A civil court cannot act upon a decree required by the Stamp Act to be stamped unless it is duly stamped, and any execution or collateral proceeding founded on such an order is vulnerable as a nullity for want of jurisdiction.

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