K.N. Khanna vs B.K. Khanna
2000 Latest Caselaw 659 Del

JUDGMENT

Devinder Gupta, J.

1. There two appeals arise out of common order dated 14.7.1999 passed by learned Single Judge of this Court deciding objections ol the appellant to the execution of decree and thereby holding the Execution Application maintainable and consequently, directing the properly in question to be put to sale by advertisement.

2. Facts in brief are that property No. 22, Ratendon Road, now known as 22 Amrita Shergil Marg, New Delhi including leasehold rights in the plot of land measuring 0.91 acre was purchased jointly on 12-5-1955 by K.N. Khanna, the appellant and his late brother B.K. Khanna. Their divorced sister Mrs. Kamla Rathour and mother Mrs. Shama Khanna also lived in the property, in separate portions. On 6-2-1973 suit No. 59/73 was filed by Industrial Finance Corporation of India (IFC1) against K.N. Khanna and B.K. Khanna and the family Company, namely B.K. Khanna and Company Private Limited, who were guarantors to the loan advanced by IFC1 to Shama Forge Limited, a Company promoted by B.K. Khanna and Company Private Limited. By an interim order passed on 6-2-1973 B.K. Khanna and K.N. Khanna were restrained from alienating amongst others the property in question. This interim order was confirmed on 26-2-1974.

3. On 6-12-1976 suit No. 878/76 was filed by B.K. Khanna seeking partition of the property. Kamla Rathour was also pleaded as one of the defendants to the suit. The suit was opposed by K.N. Khanna on various grounds. One of the grounds on which suit was resisted was that the property was neither capable of division by metes and bounds, nor the property was partible. He also pleaded that the only way to partition the suit property was to put the same to sale by auction and to divide the sale proceeds in equal shares between him and his brother K.N. Khanna. During pendency of the partition suit, B.K. Khanna and K.N. Khanna agreed to refer their disputes for settlement to the sole arbitration of Mr. C.K. Daphtary, Senior Advocate, Supreme Court and formerly the Solicitor General of India. Accordingly, an application under Section 21 of Arbitration Act, 1940 (1A 2020/78) was filed on 17-5-1978. By an order passed on 23-5-1978, subject matter of suit No. 878/76 namely, the dispute about partition of property No. 22, Ratendon Road, New Delhi and other matters and proceedings pending between the parties were referred to the sole arbitration of Mr. C.K. Daphtary.

4. During arbitration proceedings, K.N. Khanna filed his claim on 2-10-1978 and prayed to the Arbitrator to inspect the property and then to examine the evidence and only thereafter to make his award. It was stated by him that the property was not capable of being partition, without causing substantial damage to the interests of both the parties. According to him, proper thing would be to bring about sale of property No. 22, Ratendon Road, New Delhi so that sale proceeds are divided between him and B.K. Khanna. He also suggested that sale can be effected with consent of IFCI the basis of undertaking to be given by him and B.K. Khanna that the proceeds will be invested in some securities for satisfaction of the claim of IFCI, if any. In the application K.N. Khanna assigned various reasons due to which it was not at all possible to partition the property and pleaded that partition would substantially destroy its value. The property according to him was not capable of being physically partitioned in any reasonable or suitable manner and any effort to divide the property, if made, would lead to drastic results.

5. The record suggests that the Arbitrator on request of K.N. Khanna inspected the suit property and also examined evidence produced by the parties. He accordingly proceeded to make his award on 27-11-1980. As per the award, the house was built for residence of a single family and is a ground floor structure and in his opinion was incapable of being reasonably divided into two half.

6. The Arbitrator then proceeded to say that one would have ordered the property to be sold in order to effect a partition, but according to him there was an injunction operating in suit filed by IFCI against the two brothers amongst others, restraining them from alienating the property. He observed that it was not possible to shell the property until the said suit was dismissed., Submission made on behalf of B.K. Khanna to the effect that his Architect was capable of dividing the property into two livable half was turned down. The arbitrator suggested that it was better that they should continue as joint owners until the end of IFCI's suit and observed "it can then be seen what can be done with the property and in the meantime all that I can do is to try and effect a reasonable division of the house itself and to allow each brother roughly equal floor space." The Arbitrator then proceeded to earmark certain portions, which were to remain in exclusive possession of B.K. Khanna and K.N. Khanna, leaving occupation of their mother Shania Khanna intact. It was specified in the award that Mrs. Shama Khanna was in no sense an owner of the three rooms, but was in occupation of the property as a member of the family. In the ultimate para of the award, the Arbitrator further said:-

"I should add that, in my opinion, to divide the property somehow in two equal half, even if it were possible, would not be conducive to the ultimate benefit of the owners and I counsel them to wait until the determination of the Industrial Finance Corporation of India suit. However, if in the meantime, there is any obstruction or difficulty in making out the award, it is open to either brother to approach the Court for an order for sale of the house and disposal of the proceeds or their investment depending upon the position in the Industrial Finance Corporation of India suit. If the said suit is finished, then, the proceeds will be divided equally between the two brothers. As to the rooms in occupation of Mrs. Shama Khanna, as and when they are not required by her, they should be divided also between the two brothers half and half as they may agree."

7. Then finally the Arbitrator in the award stated:-

"I wish to make it clear that the arrangement as to the occupation of the house at 22 Ratendon Road, New Delhi, is a temporary one and that if the brothers cannot agree or does not pay his share of it, the other party or either party can apply to the Court for permission to sell the house and deposit the proceeds in Court to await the result of the Industrial Financial Corporation of India suit."

8. On award being filed in Court by the Arbitrator, the same was separately registered as suit No. 557-A/80.

9. B.K. Khanna and Kamla Rathour filed objections to the award whereas K.N. Khanna filed an application under Section 15 of Arbitration Act, 1940 praying modification to be made to the award. Objections filed by B.K. Khanna and Kamla Rathour and the application filed by K.N.Khanna were dismissed by order dated 15-4-1983. Award of Mr. C.K. Daphtary was made Rule of Court. A decree in terms of the award was passed. Award was to form part of the decree.

10. While deciding issue No. 1 framed on the objection to the award, learned Single Judge specifically held that division of the suit property into two portions was not possible and the only course open was to partition the property and to sell it and divide the sale proceeds in two equal portions between K.N.Khanna and B.K. Khanna. Decree in terms of the award was prepared. An appeal was preferred against the order dated 15-4-1983 before Division Bench, which was dismissed on 6-1-1984. Mrs. Kamla Rathour filed SLP (Civil) bearing No. 788/84, which was dismissed on 27-8-1984 by Supreme Court. Thus the award made by C.K. Daphtary as regards the property in question and the manner in which it was to be dealt with including the decree passed by the Court became final.

11. During pendency of the proceedings for making award Rule of Court, Mrs. Shama Khanna, mother of K.N. Khanna and B.K. Khanna expired on 31-8-1982. On 6-5-1983 B.K. Khanna filed another suit seeking division of that portion of the property, which was in occupation of the mother. In the said suit bearing No. 668/83, a preliminary decree was passed on 2-8-1983, pursuant to which a Local Commissioner was appointed to allocate the property in occupation of the mother in two portions and hand over possession of the same to K.N. Khanna and B.K. Khanna, which according to the award of C.K. Daphtary was only temporary arrangement subject of course to sale of property and division of its proceeds in equal shares between K.N. Khanna and B.K. Khanna.

12. In order to have the course implemented B.K. Khanna on 10-11-1983 filed an application (1A 4682/83), purporting to be under order 20 Rule 18 read with Order 26 Rules 13 and 14 and Section 151 C.P.C. Application was filed in suit No. 878/76, interalia praying:-

1. The decree passed by Hon'ble Mr. Justice Chadha on 15-4-83 intuit No. 551-A of 1980 be taken on record of this suit and be treated as a preliminary decree having been passed therein.

2. The award which was filed by the learned arbitrator be taken on the file of the suit and further proceedings in accordance with law be taken thereupon.

3. A preliminary decree dated 2-8-83 passed in suit No. 668 of 1983 be also taken on the record of this suit and proceedings for passing of a final decree after going through the procedure prescribed under Order 26 Rules 13 and 14 of the Civil Procedure Code be taken.

4. A Local Commissioner as provided under Order 26 Rules 1.3 and 14 of the Civil Procedure Code be appointed to make the partition by separation of the suit property bearing No. 22, Ratendon Road according to the shares of the plaintiff and defendant No. 1, i.e. half and half and file the report before this Hon'ble Court.

5. On filing of the report by the Local Commissioner, a final decree of partition as provided in Sub-rule (3) of Rule 14 of Order 26 read with Order 20 Rule 18 of the Civil Procedure Code be passed.

13. This application was decided on 21-5-1984. On the first prayer it was held that Suit No. 557-A/80 for all intents and purpose was the same suit as originally filed, i.e. Suit No. 878/76. New number was assigned only when the Arbitrator filed his award in Court. Therefore, decree passed in Suit No. 557-A/80 is really a decree passed in Suit No. 878/76. On the second prayer learned Single Judge held that decree passed on 15- 4-1983 is final in so far as it had held that Kamla Rathour has got no share in immovable property, which means that K.N. Khanna have equal share in immovable property and it was also final in the sense that the Arbitrator had held that the property could not be divided into two equal half. The decree, however, was preliminary to the extent to which direction was made by the Arbitrator that nothing can be done for enabling actual partition of the property till the suit filed by 1FC1 against B.K. Khanna and the Company and others is decided. Third prayer was given up. So far as prayers (4) and (5) are concerned, it was ordered that no further proceedings can be taken as per the award till suit filed by IFCI is decided.

14. Finding that no other way was left for him to reap the fruits of decree, B.K. Khanna on 24-12-1983 filed another application (1A 10/84) in Suit No. 557-A/80. It was pointed out by him that though in terms of the award parties were in occupation of the property separately, but the said arrangement was temporary one. He was unable to make profitable use of the property as an exclusive owner because of the rider in the award of the Arbitrator that the property cannot be sold because of pendency of Suit No. 59/73 filed by IFCI. Thus there was no alternative left except to execute that part of the decree, which authorises the applicants to pray for development of the property and in case K.N. Khanna would not agree to develop, the only alternative thereafter would be to order sale of half share of K.N. Khanna. This application was opposed by K.N. Khanna. By order dated 21-5-1984, the application was kept pending. Ultimately this application was withdrawn on 5-5-1999 and was dismissed as such.

15. On 27-4-1989 an application (IA 3189/89) was filed in Suit No. 59/73 (1FC1 v. B.K. Khanna and Company) by B.K. Khanna seeking modification of the order of injunction dated 6-2-1973 as confirmed on 6-2-1974 with respect to property No. 22, Ratendon Road, New Delhi. It was prayerd that the said property was allowed to be sold subject to the condition that the purchaser pays the amount to the extent of the claim of IFCI directly in Court with direction to the Registrar that on deposit of the said amount, the same be invested in interest bearing security and be dealt with in accordance with the decree passed in suit filed by IFCI. The said application was ultimately disposed of on 3-9-1991. The interim prohibitory orders passed on 6-2-1973 and 26-9-1974 were modified to the extent that there will be no restraint order on sale of the property subject, however, to the condition that in case sale of the property is effected, the amount equivalent to the claims of IFCI in Suit No. 59/73 and the claim of Union of India in Suit No. 1179/82 including their claims for interest both pendente lite and future be invested in terms of Section 54(e) of Income Tax Act, 1961 and those amounts with interest accruing thereupon shall be kept as security for satisfaction of decrees that may be passed in suits of IFCI and Union Bank of India.

16. K.N. Khanna feeling aggrieved against the order dated 3-9- 1991 in IA 3187/89 preferred an appeal, being FAO (OS) 230/91. The same was dismissed on 6-2-1992. SLP preferred against the said order was also dismissed by the Supreme Court. B.K. Khanna thereafter filed Execution Application No. 173/91, seeking to execute the decree dated 15-4-1983 passed in Suit No. 878/76. He prayed that in order to meet the requirements of various orders passed from time to time including the order dated 3-9-1991 in IA 4682/83, execution was sought by sale of property as per decree and orders passed on 21-5-1984 and 3-9-1991. It was prayed that sale be got conducted by public auction and sale proceeds be divided half and half.

17. On 21-5-1992 K.N. Khanna filed objections to the decree. The objections are:-(a) Only a preliminary decree has been passed; no final decree for partition has been passed so far. As such execution petition is premature and the decree is not capable of execution being only a preliminary decree; (b) Procedure under Order 26 Rules 13 and 14 and Order 20 Rule 18 C.P.C. has not been followed so far. A Local Commissioner has not been appointed to partition the suit property by metes and bounds. As no final decree for partition has been passed, the execution petition is premature and non maintainable; (c) Execution can be sought only of a final decree for partition and not of a preliminary decree. Suit No. 878/76 is still pending in which no final decree has been passed and as such, execution is not maintainable; (d) no formal decree required under Order 20 Rule 6 has been drawn up, therefore, execution petition is not maintainable; (e) decree has not been engrossed no non-judicial stamp papers. It cannot be put to execution unless the decree is engrossed on requisite non- judicial stamp papers; (f) award made by C.K. Daphtari on 27-11-1980 required registration. As the award is unregistered, the decree passed thereon is a nullity and no execution of a decree which is nullity is maintainable.

18. B.K. Kharnia lied his reply on 29-7-1992 to the objections of K.N. Khanna. During pendency of the decision on objections, B.K. Khanna expired on ,29-6-1998. The respondents were brought on record as his legal representatives. Arguments were concluded on 5-5-1999 and on 14-7-1999, learned Single Judge dismissed the objections by the impugned order and proceeded to direct sale of the property by public auction fixing Rs. 10 crores as the reserve price of the property.

19. Another intervening circumstance, which deserves to be noticed is that IA 11003/90 was filed in Suit 878/76, being an application under Section 3 of the Partition Act by K.N. Khanna praying that the Court may fix the value of share of B.K. Khanna in the property and he (K.N. Khanna) be given option to buy the share at the price fixed by the Court. This application was opposed by B.K. Khanna, who filed his reply on 7-12-1990. On 8-1-1991 the application was dismissed as withdrawn. Another similar application under Section 3 of Partition Act, being IA 1392/92 was moved by K.N. Khanna making a prayer that he be allowed to buy share of B.K. Khanna in the property according to the value fixed by the Court and necessary and proper direction be given for its sale to him at the price ascertained by the Court. This application was also opposed by B.K. Khanna. On 6-4-1999 this application was dismissed by the following order:-

"......However, in the present case as I mentioned above whether the exercise of the right irrespective of the fact that whether any previous application has been dismissed as withdrawn or otherwise defendant has to satisfy this Court that the application is made bona fide, during the course of hearing of this application, I had pointedly made a query from the learned counsel for the defendant/applicant as to what would be the reasonable value of the property in question. On instructions from the defendant who is present in Court, Mr. Aggarwal has stated that to his information half undivided share of the property in dispute was sold two years back for five crores of rupees. Even if that value is taken to be the reasonable value without ascertaining the market value of the property in question, the total value of the property in dispute would come to Rs. 10 crores.

I had directed Mr. Aggarwal whether he is willing to deposit a sum of Rs. 5 crores in the Court within a period of one week to test the bonafide of the applicant. Mr. Aggarwal on instructions has stated that he is not in a position to deposit the said amount. However, he could arrange if more time is given for the bank guarantee. In my opinion this stand of the applicant/defendant is bereft of bonafide intention. An applicant who comes to the Court to invoke in its aid Section 3 of the Partition Act, with an application filed way back in 1992 cannot say that he is unable to deposit half value of the share of which he would like to buy the property. Therefore, I would not like to go into the further aspect of the controversy in this application. The application is totally bereft of bonafides. The same is dismissed."

20. Appeal was preferred by K.N. Khanna against the above order. It was dismissed on 11-8-1999 by a Division Bench of this Court by the following order:-

"This is an Appeal against the Order dated 6th April, 1999 Briefly stated the facts are as follows:-

The Appellant herein and his deceased brother were co-owners of property 24, Amrita Shergil Marg, New Delhi. Disputes arose the two brothers. Suit No. 878/76 was filed. The disputes were referred to the sole arbitration of Shri C.K. Daftary. The Arbitrator made his Award on 27th November, 1980. We are informed that before the Arbitrator the Appellant herein had submitted that the property was not capable of partition. The Arbitrator accepted this submission and by his Award held that the property was not capable of being partitioned and that the property should be sold. The Arbitrator thus directed sale of the property, objections were taken to the Award. These were dismissed on 15th April, 1983. First Appeal No. 73/83 was dismissed on 6th January, 1984. An Appeal was then filed to the Supreme Court by another Respondent. The same was dismissed on 27th August, 1984 by the Supreme Court.

The Respondent herein took out Execution Application bearing No. 183/91. In this it was prayed that as per the Award and the decree the property be sold. The Appellant therefore took out an application under Section 3 of the Partition Act, The Application has been dismissed by the learned Single Judge by the impugned order.

Subsequent to this, by an order dated 14th July, 1999, the learned Single Judge has directed sale of the property. He has directed that advertisement be issued in the newspapers and bids have been called for. The learned Single Judge has also permitted both the parties to send their respective bids. After all bids are received, they are to be brought before the Court. By this order, the learned Single Judge had fixed a reserve price of Rs. 10 Crores. However, subsequently, by an order dated 30th July, 1999, it has been clarified that the reserve price would be Rs. 20 Crores. This clarification is issued because even the Appellant had agreed that reserve price should be Rs. 20 Crores. Till date no appeal is filed against order dated 14th July, 1999.

In our view, it is doubtful that the appellant could avail of the provisions of Section 3 of the Partition Act. Section 3 of the Partition Act comes into play only if an application for sale is made under Section 2. The Application for sale has to be by the other party. A reading of Section 2 shows that such an application has to be made prior to a decree being passed in a suit for partition. In this case, the decree directing sale has been passed as far back as 15th April, 1983. To be remembered that before the Arbitrator it was the Appellant who had contended that the property was not capable of being partitioned. It was on the Appellant's submission that the Arbitrator directed sale.

Even otherwise today the position is that by order dated 14th July, 1999, as modified by order dated 30th July, 1999, the property is directed to be sold and bids are called for. We, therefore, enquired of the Appellant whether on such bids being received he would be satisfied if he was given the first option to purchase the property at the highest bid. It was clarified that as he was 50% owner he would only have to pay half the amount. This would have ensured that he would have a preemptive right of purchase even if Section 3 of the Partition Act did not apply. On taking instructions, we are informed that the order. To us it is clear that Appellant is not agreeable to such an Appellant is not really keen on purchasing the property. He is merely seeking to delay the execution of the decree which has already been passed.

In this view of the matter, we see no reason to interfere. The Appeal stands dismissed."

21. In the impugned order, considering the objections raised by the appellant to the execution of the decree, learned Single Judge, after narrating relevant facts, observed that the following five points arise for consideration from the arguments advanced on behalf of the appellant:-

1. Whether the decree dated 15-4-1983 interpreted by the Court on 21-5-1994 was a preliminary decree or a final decree?

2. Whether the decree has been prepared in terms of Order 20 Rule 6 or Order 20 Rule 18 of the CPC?

3. Whether procedure prescribed under Order 26 Rules 13 & 14 CPC is gone through and a Local Commissioner is appointed for dividing the property by metes and bounds and can the present execution petition be maintainable?

4. What is the effect of the decree if the same has not been engrossed on a non judicial stamp paper?

5. Whether award dated 27-11-1980 in respect of immovably property in the absence of compulsory registration, the decree passed thereupon is a nullity

22. Learned Single Judge held that the decree passed on 15-4- 1983, as interpreted by order dated 21-5-1994, was a final decree. It was not required to be engrossed on a non-judicial stamp paper and even the award of the Arbitrator was not required to be compulsorily registered. Execution petition is maintainable and the decree is executable. No proceedings in the suit were pending. Rights of the parties finally stood adjudicated. Accordingly, while dismissing the objections, direction was given to put the property to sale by advertisement. A Court Commissioner was appointed authorising him to give due and wide publicity in newspapers. Reserve price was also fixed.

23. Learned counsel for the parties were duly heard at length by us and we were also taken through the entire record.

24. Grievance of learned counsel for the appellant is that though learned Single Judge had formulated, on his submissions, five questions, but two questions have not been decided by him, namely questions Nos. 2 and 3. Same and similar arguments have been addressed by learned counsel for the appellant that the decree passed in terms of the award in a partition suit is required to be drawn up in accordance with the provisions of Order 20 Rule 6 CPC. It is mandatory requirement; (b) Till decree is drawn in terms of Order 20 Rule 6 CPC and is engrossed on a non-judicial stamp paper, in terms of the law laid down by various decisions of the Courts, execution petition is not maintainable; (c) Modification of the interim orders passed on 6-2-1973 and 26-2-1974 in Suit No. 59/73 by Order dated 3-9-1991 cannot amount to passing a final decree in Suit No. 878/76 and as no final decree has separately been passed in Suit No. 878/76, execution petition is not maintainable; Executing Court has got no jurisdiction to entertain an application for supply of stamp papers and engrossing the decree thereupon, which is the function only of the original Court. A party to the suit cannot, of his own, file stamp papers in Court of any value for engrossing the decree.

Original Court is required to assess the value of immovable property in order to enable it to call upon the parties to supply the requisite stamp papers for engrossing the decree. The Court was required to follow the procedure prescribed in Rule 18 of Order 20 CPC and cannot dispense with the procedure prescribed under Rules 13 and 14 of Order 26 CPC in a partition suit.

25. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the appellant. It was contended that the objections are misconceived and untenable. Cogent reasons have been assigned by learned Single Judge based on well established principles of law, while rejecting the objections. It has rightly been held that the decree passed on 15-4-1983 was not a preliminary decree. Because of the clarification issued on 3-9-1991 the decree became executable. Learned Single Judge was also right in holding that as per the decree, suit property was not conveniently and reasonably capable of division by metes and bounds. The only mode open was to sell the property and divide the sale proceeds in equal shares. There was no question of following the procedure prescribed in Rule 13 and 14 of Order 26 or of Rule 18 of Order 20 CPC. Such procedure is required to be followed only when the suit property is to be partitioned by metes and bonds and not in a case where the suit property is to be sold and sale proceeds are to be divided. It has rightly been held that the award was not required to be engrossed on non-judicial stamp papers nor decree was required to be drawn on stamp papers. The award was also not required to be registered.

26. Learned counsel for the parties also cited number of decisions of various High Courts and of Supreme Court. We have given due consideration to the submissions made at the Bar and are of the view that appeals have no merit and are liable to be dismissed.

27. Sub-section (2) of Section 2 of the Code of Civil Procedure defines a decree to mean the formal expression of an adjudication which, in so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It also says that the decree may either be preliminary or final. Explanation to Sub-section (2) says that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. A decree may be partly preliminary or partly final. In nutshell, the definition ex-facie suggests that where an adjudication decides the right of the parties with respect to all or any of the matters in controversy in the suit but does not completely dispose of the suit, it will be a preliminary decree. Where it completely disposes of the suit, it is final decree. A preliminary decree is passed in those cases in which the Court has first to adjudicate upon rights of the parties and has then to stay its hands for the time being until it is in a position to pass a final decree in the suit. The question whether the decree is a preliminary decree or a final decree, has to be decided on a reference to the decree itself. The Code of Civil Procedure provides for passing of preliminary decree only in some classes of cases, one of which is a suit for partition and separate possession. Order 20 Rule 18 makes such a provision, which reads:-

"Decree in suit for partition of property or separate possession of a share therein.

18. Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-

1. If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provision of Section 54;

2. If and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made with out 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."

28. A preliminary decree in a suit for partition is not a tentative decree in so far as the matters dealt with by it are concerned, but is regarded as conclusive. In suit which contemplate making of two decree-a preliminary and a final, the decree which will be executed, would be the final decree and not the preliminary decree. However, finality of a decree or decision does not necessarily depend upon its being executable. A preliminary decree passed by a Court is not executable except as otherwise provided for in the decree itself.

29. After making this general statement of law as regards preliminary and final decree, it is but necessary for us now to refer to the order passed on 15-4-1983 making the award of Arbitrator as Rule of Court. Before doing so, a reference be made to the award dated 27-11-1980 made by C.K. Daphtary, sole Arbitrator. Portions of the award have already been quoted above. After having come to the conclusion that the property was jointly owned by K.N. Khanna and B.K. Khanna in which they had one half share each, the Arbitrator opined that the property was incapable of being divided into two reasonably livable half. To divide the property somehow in two equal half, even if it were possible would not be conducive to the ultimate benefits of the owners. He further opined that the best course was to sell the property by auction and divide sale proceeds. Immediate sale was not possible due to restraint in any suit. He proceeded to say that, "I counsel them to wait until determination of the Industrial Finance Corporation of India suit. However, if in the meantime, there is any obstruction or difficulty in working out the award, it is open to either brother to approach the Court for an order for sale of the house and disposal of the proceeds or their investment depending upon the position of the Industrial Finance Corporation of India suit. If the said suit is finished, then the proceeds will be divided equally between the two brothers. The Arbitrator proceeded to tentative allotment of various portions of the house stating that the said arrangement as to the occupation is temporary.

30. Learned Single Judge while deciding the objections of B.K. Khanna to the award of the Arbitrator and the applicant's application seeking modification also held that it is not possible to effect partition of the property No. 22, Ratendon Road, New Delhi. Decree which was drawn in terms of the award reads: -

"The suit coming on this day for final disposal before this Court in the presence of counsel for the parties as aforesaid; it is ordered that the objections contained LA. No. 891, 1401, 1402 and 1403/81 filed by the parties to the award dated 27-11-80 as corrected by the decision of this Court under issues 8 and 9 given by Sh. C.K. Daphtary, Arbitrator be and the same are hereby dismissed and the said award appended hereto as annexure 'A' be and the same is hereby taken on record and made a rule of the Court and a decree is hereby passed in terms of the said award, which shall form part of the decree.

It is lastly ordered that the parties will bear their own costs. Given under my hand and the seal of the Court this the 15th day of April, 1983."

31. In so far as rights of the parties to the suit property, are concerned, there is no manner of doubt and it is also not disputed that the same were declared in the award, which was made Rule of Court that the parties have half and half share. The award also made it clear and finally declared that the property was incapable of being partitioned. Therefore, no direction was made in the award for actual division of the property by metes and bounds and for putting in possession the parties in separate portions as exclusive owners, Rather the award made a provision that the parties will have to wait till embargo put by the two orders passed in Suit No. 59/73 is lifted, which had restrained the parties from effecting sale of the property. Award clearly stipulated the mode and manner of partition of the property, i.e., only by sale and to distribute the sale proceeds equally amongst the two co-owners. No other mode or manner was suggested or provided for in the award except in case that if the parties would agree to jointly develop the property, they may do so by applying to the Court. In so far as the Court is concerned, rights of the parties stood concluded that both K.N. Khanna and B.K. Khanna had one half share in the property. The property not being capable of being partitioned by metes and bounds has to be sold and sale proceeds divided in equal shares by the parties. It was so pleaded by the appellant in his written statement while resisting the suit for partition filed by B.K. Khanna and also in the application moved before the Arbitrator. It was also so observed in the order passed on 20-9-1984 while disposing of suit No. 668/83 wherein Court held:-

"Both parties agree that, in the event of the property, being finally sold or disposed of in any other manner, the sale proceeds or other consideration received should be divided in equal shares between two brothers irrespective of the actual areas of the property which has been allotted to them under the award of Shri Daphtary and under the present arrangement."

32. The property was not capable of being divided by metes and bounds. Nothing else was required to be done in the suit in which decree was passed on 15-4-1983 except that as and when the embargo, which was put by orders dated 6-2-1973 and 26-2-1974 in Suit No. 59/73, was lifted restraining the parties from alienating or disposing of the property, to approach the Court for executing the decree by sale of property and for distribution of sale proceeds in equal shares.

33. Clause (2) of Rule 18 of Order 20 envisage that only in case where decree relates to immovable or movable property, the Court may if partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of several parties interested in the property and giving such further directions as may be required. When a Court is in a position, without any further inquiry to put to an end finally to the rights of the parties, it is not necessary that in each partition suit a preliminary decree be passed. It depends upon the facts and circumstances of each case. The example is no case other the present one. Accordingly while declaring the rights of the parties and holding that the property is incapable of being partitioned by metes and bounds, it was declared that the property be sold and sale proceeds be distributed equally among the parties. In such a case it was not at all necessary to have firstly passed a preliminary decree and then proceed to pass a final decree. The decree passed on 15-4-1983 itself was a final decree. The mere fact that one of the parties did not consider it to be a final decree, but sought clarification of the Court, will also not make any difference. Even an order passed by the Court subsequently on the nature of decree cannot be considered to be an order militating against the true nature of the order passed on 15-4-1983.

34. In Venkata Reddy and Ors. v. Pethi Reddy, , it was held:-

"A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which mean a decision which would be operative as resjudicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types would be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it."

35. On the ratio of the decision aforementioned, the order passed on 15-4-1983 making the award of Arbitrator dated 27-11-1980 a Rule of Court has to be treated as final and conclusive amongst the parties as regards the matters adjudicated therein. Appeal to the Division Bench against the said order was dismissed. Further SLP filed before Supreme Court was also dismissed. The matters decided therein were the shares of the parties in the property in question, and the mode and manner of partitioning the property, namely the property was incapable of being partitioned by metes and bounds. The only mode suggested was sale of the property and to distribute the sale proceeds in equal shares amongst the parties. Such questions having become final long ago cannot be permitted to be reagitated. The decree passed on 15-4-1983 is final and is capable of execution.

36. We are also of the view that the learned single judge was justified in making observations that the appellant ,who has throughout the litigation ,for a period of about 15 years been opposing the claim of the respondent on the ground that the property cannot be ordered to be partitioned since it is incapable of being partitioned and that the same be sold, is now interested only to drag on to the litigation by unnecessarily delaying the same. Learned counsel for the appellant also tried to vehemently contend that the property is capable of being partitioned. It is the only residence of the appellant and he would be rendered homeless and, therefore, order for sale be sat aside and the property be ordered to be partitioned in equal shares, but we are of the view that the appellant cannot be permitted to urge this point now at this stage when he was successful in opposing the case of the respondents for partition of the property by taking up the plea that the property is incapable of being partitioned. After the appellant succeeded, the rights of the parties culminated in award, which was made rule of court, which became final and now he cannot permitted to turn around and re-open the matter.

37. The next question is about registration of the award made by the arbitrator. The award in so far as the property in question is concerned simply declared the pre-existing rights of the parties that they had equal shares therein and further provided for the mode and manner in which partition of the same would take place. Same in our view would not require registration under any part of Section 17 of the Registration Act. An arbitration award in which a recital is no more than a reference to a pre-existing fact does not create, declare or extinguish by virtue of the award any right, title and interest in immovable property and as such, is not compulsorily registrable. Only such of the awards, which purport to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, are compulsorily registrable by virtue of Clause (b) of Sub-section (1) of Section 17 of the Registration Act. In Nawab Usmanali Khan v. Sugar Mal, where the award stated merely existing facts as regards rights of the parties, it was held that the award did not either create or of its own force declare any interest in any immovable property and did not, therefore, come within the purview of Section 17 and was not required to be registered.

38. In Mattapalli Chelamayya (dead) by his legal representatives and Anr. v. Mattaplli Venkataram (dead) by his legal representatives and Anr., , considering the award of an Arbitrator made, while resolving the disputes among members of Joint Hindu Family, it was observed that the award so far as it refers to the partition of immovable property, does not purport to create or declare any interest or title in immovable property. Therefore, the same was not required to be compulsorily registered under Section 17 (1) (b) of Indian Registration Act.

39. In Captain (Now Major) Ashok Kshyap v. Mrs. Sudha Vasisht and Anr., while reversing the decision of this Court dated 16-5-1986 on the question whether the award therein required to be compulsorily registered, the Apex Court held that Section 17(1)(b) of Registration Act enjoins that any non-testimony instrument, which purports or operates to create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, should be registered. Analysing the award, the Supreme Court held that the award did not create any right in immovable property, therefore, it was not required to be compulsorily registered. The award in that case had declared the shares of the parties by saying: -

"Therefore, the question is, does the document itself extinguish or purport to create or declares any right in immovable property. It certainly declares the share of the parties in the property but it enjoins that only upon payment of Rs. 40,800/-. Mrs. Vasisht would vacate the house. It further enjoins that "she will be entitled to live in the house in the portion occupied by her till the full payment of Rs.40,800/- is made to her and she will not be liable to pay any rent for the occupation of the portion and on the said payment, she will not have any right and also no interest left in the said property". So her right in the said property and her interest in the property ceases on payment of the amount of Rs.40,800/- and not otherwise, not by the operation of document itself. The document itself creates a right by itself to get Rs.40,800/- and right to obtain the payment and on payment the obligation of relinquishment of her right or interest in the property. It does nothing more."

40. Learned counsel for the appellant placed reliance on the decision of this Court in Sardar Singh v. Smt. Krishna Devi and Anr., in support of his submissions that the award required registration. Needless to add that much prior to making submissions, the decision relied upon by learned counsel for the appellant had already been reversed by Supreme Court in Sardar Singh v. Krishna Devi and Anr., . The Supreme Court held:-

"It is, thus, well settled law that the unregistered award per se is not inadmissible in evidence. It is a valid award and not a mere waste, paper. It creates rights and obligations between the parties thereto and is conclusive between the parties. It can be set up as a defense as evidence of resolving the disputes and acceptance of it by the parties. If it is a foundation, creating right, title and interest in present or future or extinguishes the right, title or interest in immovable property of the value of Rs.100 or above it is compulsorily registrable and non- registration render it inadmissible in evidence. It contains a mere declaration of a pre-existing right, it is not creating a right, title and interest in present in which event it is not a compulsorily registrable instrument. It can be looked into as evidence of the conduct of the parties of accepting the award, acting upon it that they have pre-existing right, title or interest in the immovable property."

41. Judgement of this Court was reversed while making reference to the contents of the award. It was held that the award was not compulsorily registerable since it did not create any right, title or interest in the appellant for the first time, but it declared the pre-existing factum, namely the appellant and Kartar Lal purchased the property jointly and that Kartar Lal was the benamidar and that both of the brothers had half share in the house, with a right to enjoyment of the property in equal moiety. Thus the award was not compulsorily registrable.

42. In the light of the aforementioned decisions and in the light of the admitted position; that the property was purchased jointly by the parties, we are of the view that the award made by C. K. Daphtary was not required to be compulsorily registered since it did not create or declare any new rights, but declared the pre-existing rights that the parties, i.e. K.N.Khanna and B.K.Khanna were co-owners in equal shares. This takes us to the next point of stamping of the decree.

43. There is no manner of doubt that in a suit for partition after a preliminary decree is passed declaring rights, title or interest of the parties, which decree makes a provision for partition of the suit property by metes and bounds and of separate possession in terms of the rights declared under the said decree, which has to be treated as preliminary, further inquiry is required to be held to enable the Court to finally and conclusively determine rights of the parties by actually partitioning the said property by metes and bounds. In order to do so, usually the task is assigned to a Commissioner to suggest mode of partition, who usually suggests the mode and manner of dividing the property. On receipt of such a report and deciding objections of the parties, if any, the Court then proceeds to pass a final decree declaring the persons entitled to separate shares, which enable the parties thereafter to hold and enjoy the property separately. Such a division of the property has the effect of creation of an exclusive right of a person in that portion of the property, which falls to his share and extinguishes his right, title or interest in those portions, which fall the exclusive shares of i the others. This decree of course would be covered by the definition of "instrument of partition", as defined in Clause (15) of Section 2 of Indian Stamp Act. "Instrument of partition" is defined therein to mean any instrument whereby co-owners of any property divide or agree to divide such property in severality, and include also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an Arbitrator directing partition. In case partition is effected of a property even by an Arbitrator by his award, the same would fall in the definition of "instrument of partition". So also a decree of Civil Court affecting partition of the property would fall in the said definition and the same would be required to be stamped according to the provisions of Indian Stamp Act.

44. But it is not that every decree in a partition suit would be required to be drawn up on a stamp paper. Only those decrees will be required to be drawn up on a stamp paper, which divide any property in severality amongst co-owners. In the instant case neither by award made by C.K. Daphtary nor by order dated 15-4-1983 the property has been ordered to be divided or agreed to be divided in severality. Only a tentative arrangement was made for enjoying the property separately, which was only a temporary measure whereby the parties continued to be the joint owners of each and every part of the property though separately enjoying separate portions. The decree nowhere provided for separation or division of the property in severality since it was held that the property is incapable of being divided in two equal shares or that the division by metes and bounds was not possible. Therefore, the mode suggested was to sell the property and then divide sale proceeds in equal shares. Such an award or a decree would not come within the definition of "instrument of partition", pursuant to the said decree passed in the suit, in case the property is sold, the rights, title and interest of the appellant and the respondents would come to an end, on sale deed being drawn and executed on a stamp paper, after the sale is confirmed by the Court. Only the said instrument of sale will be required to be stamped and thereafter got registered. Such a decree as was passed on 15-4-1983, is not required to be drawn on a stamp paper. Only such of the decrees are required to be drawn on a stamp paper, which allot and vest particular share in each co-sharer and not those decrees, which only make a provision for sale of the property. In later decrees only the instrument of sale would be required to be drawn on a stamp paper so as to vest exclusive rights in the property in favour of the auction purchaser.

45. In view of the discussion aforementioned, there is hardly any force in the appeal, which merits dismissal. Appeals are accordingly dismissed with costs quantified at Rs.10,000/- in each appeal.