February 11, 2026

The Calcutta High Court has ruled that a final decree passed in a partition suit cannot be executed unless it is first written (engrossed) on proper stamp paper and the required stamp duty is paid, which means the Stamp Act must be followed before the decree can be enforced.

Exercising its revisional jurisdiction, the Bench of Justice Shampa Dutt (Paul) also clarified that to avoid delay, the decree-holder can pay the full stamp duty for the entire property upfront and later recover each co-sharer’s share of the amount from them.

Background of the Partition Suit:

The matter came from Title Suit No. 1843 of 2005, a long-pending partition suit. First a preliminary decree was first passed, and later a final decree gave one-fourth share to each co-sharer. The decree remained valid after appeals, as both the Division Bench and the Supreme Court dismissed challenges to it. After that, the decree holders initiated execution proceedings.

At the stage of execution, the judgment debtor raised an objection, contending that the decree was insufficiently stamped. The argument was that stamp duty had been paid only for the decree- holder’s one -fourth share, and not for the entire property covered by the final decree.

On this basis, it was submitted that the decree was not executable. It was further argued that the final decree could not be treated as executable unless full stamp duty was paid on the total value of the property.

However, the executing court rejected this objection. The court recorded that the office had already assessed the stamp duty and that the decree had been engrossed after payment under Article 45 of Schedule 1A of the Indian Stamp Act as applicable in West Bengal. Since all parties were given equal one-fourth shares, the court noted that stamp duty equal to one such share had been paid.

Before the High Court, the decree-holders agreed to pay the stamp duty for the entire property to remove any technical obstacle to execution, while keeping the right to later recover the proportionate amounts from the other co-sharers.

Ruling:

The bench examined the legal position and reiterated that a final decree can be executed only after it is properly prepared and stamped. The Court observed that unless the decree is written on the required stamp paper, it cannot be acted upon or enforced.

At the same time, the Court underscored that procedural rules should not defeat the substantive rights settled after long litigation.

Directions Issued By High Court:
Taking note of the undertaking given by the decree holders, the Court allowed them to pay the stamp duty for the full value of the property and then recover the respective shares from the other co-owners through due process. It ordered that once this payment is made, the executing court will proceed with the execution and ensure full satisfaction of the decree within one month.

The revisional application was disposed of on these terms, and all interim orders were vacated.

Detailed order awaited.

Case Details: Sri Sandip Kumar Saha v. Somnath Saha & Ors.

Case No.: C.O. 262 of 2024

In a significant development, the Supreme Court has appointed Senior Advocate Shoeb Alam as amicus curiae to assist it in an appeal challenging a Kerala High Court ruling that allows Muslim women to dissolve their marriages through khula without the husband’s consent. The decision is now being examined about how it interprets Muslim Personal Law.

A bench of Justice Sanjay Kumar and Justice K. Vinod Chandran has fixed the case for a full hearing on April 22, 2026, noting the need for expert assistance:

“List for hearing in the list of regular hearing matters on 22.04.2026. We request Mr. Shoeb Alam, learned senior counsel, to assist this Court in this matter, as it involves a question of Muslim personal law.”

Background of the dispute:

The controversy began with a Kerala High Court judgment in which Justices A. Muhamed Mustaque and C.S. Dias held that a Muslim woman has the right under Islamic law to end her marriage through khula without needing her husband’s consent.

The ruling came while dismissing a review petition against an earlier order that had granted a divorce decree to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939.

In that earlier decision, the bench said, “the right to terminate the marriage at the instance of a Muslim wife is an absolute right conferred by the Holy Quran and is not subject to the acceptance or will of her husband.” The court compared this to a husband’s talaq rights and clarified that khula becomes effective when the wife declares that the marriage has ended, returns the dower or benefits received, and follows reconciliation efforts.

Court’s Criticism While Dismissing Review:

While dismissing the review petition, the High Court strongly criticised where the plea seemed to come from:

“This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of khula, unilaterally.”

The court also clarified:

“In the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband.”

The court rejected the arguments that a wife must first ask her husband for talaq and go to a qazi or judge only if he refuses, stating:

“It is acknowledged by Islamic law that the Muslim wife has the right to demand termination of marriage. The argument that if the husband refuses, she has to move the Court stares at us. For what purpose she has to move the Court, begs the question. The Court is neither called upon to adjudicate nor called upon to declare the status, but simply has to pronounce termination of marriage on behalf of the wife. The Court in our country is not a guardian of an adult and able woman.”

The bench also rejected the claim that women do not have an absolute right to khula and emphasised judicial independence, saying courts “shall not surrender to opinions of Islamic clergy who have no legal training on point of law,” while still respecting their views on matters of faith and rituals.

Case Detail: X v. Y (Petition for Special Leave to Appeal (C) Nos. 8936-8937/2024)

Day: 11 February 2026

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