Delhi High Court
Manjeet Kaur And Anr. vs Amarjeet Kaur And Ors. on 2 May, 2005
Author: S Agarwal
Bench: S Agrawal
JUDGMENT
S.K. Agarwal, J.
1. This is an application moved by the parties, praying for directions to Registry to draw the decree in the suit in terms of Order dated 4.12.2002 without requiring filing of valuation report and supply of non-judicial stamp papers.
2. Facts in brief are as follows: The plaintiff filed a suit for partition and rendition of accounts, pleading that Kartar Singh was the absolute owner in possession of immovable properties (1) Two and a half storeyed building bearing No. C-4/6. Rama Pratap Bagh, Delhi, (2) Garage Nos. 9-10 at Gulabi Bagh, Delhi, and (3) Property No. C.W. 71, Sanjay Gandhi Transport Nagar, Delhi. He died on 4.4.1992 leaving behind Plaintiffs and defendant Nos. 2 & 4 (daughters), Smt. Amarjit Kaur (widow) and Karamjit Singh (minor son). Kartar Singh got married with defendant No. 1 after the death of his first wife. Plaintiffs and defendant Nos. 3 and 4 are children from the first wife. Plaintiffs prayed for a decree of partition, by metes and bounds of 1/6 share in the immovable properties. On 4.12.2002, an application was moved by the parties under Order XXIII Rule 3 read with Section 151 CPC, praying for disposal of the suit in terms of compromise. It was inter alia agreed that all the three suit properties shall be sold and out of the sale proceeds both the defendant Nos. 1 and 2, namely Amarjit Kaur and her son Karamjit Singh shall get 62% of the same and balance 38% shall be divided amongst four daughters (plaintiffs and defendant Nos. 3 & 4). The suit was decreed, as per the compromise. It was ordered that terms contained in the application shall form part of the decree. Thereafter Registry wrote to the parties requiring them to submit the valuation report of the properties from the approved valuer and for supply of requisite non-judicial stamp papers. On receipt of the letter, the parties moved the present application for directions to Registry to draw the decree without insisting upon the said requirement.
3. Looking to the nature of controversy involved Shri Suresh Singh, Advocate was appointed as amices Curiae. I have heard learned counsel for parties, learned amices Curiae and have been taken through the record.
4. Learned counsel for the plaintiff and defendants argued that Clauses (a) to (e) of Sub-section (1) of Section 17 of the Registration Act, enumerate the kind of documents which require compulsory registration. The decree in the present case being for partition in relation to immovable properties, would fall under Section 17. However, in view of the exception contained in Section 17, the decree of partition under Clause (b) of Sub-section (1) of Section 17, would not require registration and not required to be engrossed on the stamp paper. Reliance is placed on the decision of this Court in Gaj. Singh Yaday (Lt. Col.) v. Satish Chander Yadav and Ors., , Chander Sain Jain v. Shri Sumer Chand, , and P.K. Nangia v. Land & Development Officer, New Delhi and Anr., .
5. Learned amices Curiae, supporting the plaintiffs submission on facts argued that in this case compromise decree does not require compulsory registration and stamping, as the deed of agreement or decree does not affect the division of immovable property by metes arid bounds, but only defines shares.
6. The circumstances under which the exception engrafted in Section (vi) of Section 17(2) of the Registration Act would apply, were considered in detailed by the Supreme Court in Bhoop Singh v. Ram Singh Major, , and it was held as under:
"(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. It a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100 or upwards in favor of any party to the suit, the decree or order would require registration.
(3) if the decree were not to attract any of the Clauses of Sub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of compromise, as was, the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.
(5) If the property dealt with by the decree be not the "subject matter of the suit or proceeding", Clause (vi) of Sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated."
(Emphasis supplied)
7. Law in this regard appears to be well settled. Every decree in partition suit is not required to be registered or drawn on a stamp paper. Each case would depend upon its own facts. The decrees which divide the properties by metes and bounds amongst the co-sharers, and create new right, title or interest in the immovable property of the value of Rs. 100 or upwards, are required to be drawn on stamp paper. In this case, by virtue of preliminary decree only shares have been ascertained and the parties continue to be joint owner of each part of the property. The decree nowhere provides for separation or division of property by metes and bounds. The properties are required to be sold and only sale proceeds are to be divided in particular manner. This being so, a decree would not fall within the definition of instrument of partition. The right, title or interest of the parties in suit properties in question, would come to an end on execution of sale deeds, which will have to be drawn on the stamp paper. The instrument of sale would be required to be executed on the stamp paper and registered. Reference in this regard is made to the decision of Division Bench of this Court in K.N. Khanna v. B.K. Khanna, 2001 III AD (Delhi) 196, wherein it was held:
"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 favor of the auction purchaser."
8. The ratio of the above decision is fully applicable to the facts at hand. In view of the same, no stamp duty is chargeable and the decree in terms of Order dated 4.12.2002 is not required to be engrossed on stamp paper. The Registry is directed not to insist for filing the valuation report from an approved valuer and supply of requisite stamp paper in terms of their letter dated 17.9.2003.
9. With the above directions, application stands disposed of.
