Delhi High Court
Nirmal Kumar Jain vs Sukhdev Kumar Jain & Ors. on 17 November, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 9th October, 2009
Date of Order: November 17, 2009
IA No. 5936/2009 in CS(OS) No. 1118/2006
% 17.11.2009
Nirmal Kumar Jain ... Plaintiff
Through: Mr. Sachin Dutta, Advocate
Versus
Sukhdev Kumar Jain & Ors. ... Defendants
Through: Mr. R.K.Jain, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? No.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
ORDER
In this suit for partition, it was held by the Court that both plaintiff
and defendant had equal shares in the property. Thereafter, an architect was
appointed to explore the possibility of division of the property by metes and
bounds. The fee of the architect was shared by both the parties and a final
decree came to be passed vide order dated 9th April, 2008 after the parties had
agreed, as to how the property was to be divided by metes and bounds. There
were two suits and both the suits were decreed in terms of the settlement arrived
at between the parties for division of the properties by metes and bounds. The
Court directed for preparation of final decree in accordance with this division as
agreed between the parties.
2. The plaintiff made an application for deposit of necessary non-
judicial stamp papers for preparation of final decree of partition by both the
parties in accordance with their shares however, the Counsel for defendant has
raised an issue that since the parties had agreed to a mutual settlement, no
stamp duty was required to be paid for preparation of final decree. He has relied
on an order dated 4th May, 2006 passed by this Court in IA No. 5014/2006 in
CS(OS) No. 134/2005. A perusal of this order show that no decree for partition of
the property was passed on the basis of mutual settlement rather the suit was
disposed of in view of agreement between the parties, the office note requiring
parties to pay stamp duty on settlement was considered not justified for this
reason. I consider that this order relied on by the defendant is not applicable in
this case. This Court in CS(OS) No. 826/2005 on 2nd July, 2007 had discussed
this issue in detail and had came to the conclusion that the parties were bound to
pay the stamp duty as required to be affixed on a final decree for partition.
Similar is the observation made by the Supreme Court in Shankar Balwant
Lokhande (Dead) v. Chandrakant Shankar Lokhande & Anr. (1995) 3 SSC 413
wherein Supreme Court observed as under:
12. "x x x Therefore, executing court
cannot receive the preliminary decree unless final decree
is passed as envisaged under Order 20, Rule 18(2). After
final decree is passed and a direction is issued to pay
stamped papers for engrossing final decree thereon and
the same is duly engrossed on stamped paper(s), it
becomes executable or becomes an instrument duly
stamped. Thus, condition precedent is to draw up a final
decree and then to engross it on stamp paper(s) of
required value. These two acts together constitute final
decree, crystallizing the rights of the parties in terms of the
preliminary decree. Till then, there is no executable
decree as envisaged in Order 20, Rule 18(2), attracting
residuary Article 182 of the old Limitation Act. ............"
I, therefore consider that the parties are bound to deposit non-
judicial stamp paper(s) of appropriate value for drawing final decree and unless
the stamp paper are not deposited by the parties, the final decree cannot be
drawn.
November 17, 2009 SHIV NARAYAN DHINGRA, J.
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