Delhi High Court

Mst. Razia Begum vs Mohd. Ilyas & Ors. on 17 February, 2012

Author: Anil Kumar

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CS(OS) No. 456/2009

%                      Date of Decision: 17.02.2012

Mst. Razia Begum                                            .... Plaintiff

                     Through Mr. B.B. Gupta, Advocate.

                                Versus

Mohd. Ilyas & Ors.                                     .... Defendants

                     Through Ms. Mukta Kapoor, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR


ANIL KUMAR, J.

This suit is listed pursuant to a communication received by the

Registry from the office of the Sub Divisional Magistrate, Daryaganj,

New Delhi dated 20th April, 2010 with a direction to submit valuation

report of municipal property bearing No. 838-839, Ward No. XI (Old),

situated at Haveli Azam Khan, Bazar Chitli Qabar, Delhi-110006

taking into consideration the latest sale deeds at the higher side of

the transaction of the property situated in and around the same

locality showing the market value of the property as on the date of

decree, i.e., 27.5.2009.

Pursuant to the letter received from the Sub Divisional

Magistrate, Daryaganj, the plaintiff was directed to give a reply to the

demand by the Sub Divisional Magistrate to give the valuation report

of the property. A reply dated 22nd April, 2010 has been filed by the

plaintiff/decree holder contending, inter alia, that judgment and

decree dated 27th May, 2009 reveals that the suit was disposed of in

terms of the oral settlement arrived at between the parties which was

incorporated in IA No. 7301/2009.

According to the plaintiff/decree holder, the oral settlement

arrived at between the parties during the pendency of the suit, was

reduced into writing and also incorporated in the application being

IA No. 7301/2009 under Order 23 R. 2 & 3 of CPC. Consequent to

the said application filed by the plaintiff/decree holder incorporating

the oral settlement, the suit was decreed by judgment dated 27th

May, 2009.

The plaintiff/decree holder, in the circumstances, has

contended that the Court has not passed a decree of partition but

has only declared the existing factual position on the date when the

compromise application was filed incorporating an oral settlement

already entered into amongst them. Relying on Section 2(15) of the

Stamp Act, it is contended that no stamping on such a decree is

required.

The learned counsel for the plaintiff/decree holder has relied

on Nitin Jain Vs. Anuj Jain & Ors., AIR 2007 Delhi 219 (DB);

Rajinder Kumar Vs. Iqbal Singh & Ors., 2003 V AD (Delhi) 469 and

B.S. Goel and Ors. Vs. The Registrar, High Court of Delhi, AIR 2007

Delhi 72.

This Court has heard the learned counsel for the parties.

Perusal of the judgment dated 27th May, 2009 shows that the

application being IA 7301/2009 incorporated the oral settlement

arrived at between the parties, under which it was agreed that the

defendants would sell their 1/3rd undivided share in the property in

favour of the plaintiff Mst. Razia Begum or her nominee by executing

and getting registered the sale deed. The parties had also agreed

that the defendants shall hand over the possession of the portion of

the property in suit under their occupation comprising of 1st floor

and open terrace to the plaintiff. The defendants had also

undertaken to the Court for the execution of sale deed in favour of

the plaintiff and that the physical possession of the property in their

portion shall be handed over to the plaintiff.

The learned counsel for the defendants/judgment debtors Ms.

Mukta Kapoor does not dispute that the judgment and decree was

passed pursuant to the oral settlement arrived at between the

parties, which was reduced into writing in the application by the

parties, which was allowed by order dated 27th May, 2009 and

consequent thereto, this Court had passed the judgment dated 27th

May, 2009 and had directed that the decree sheet be drawn.

The learned counsel for the plaintiff/decree holder has also

relied on the sale deed dated 29th May, 2009 executed by defendants

in favour of the plaintiff in respect of their 1/3rd share in compliance

with the undertaking given by them. The sale deed dated 29th May,

2009 is duly registered as Registration No. 3963 in Additional Book

No. 1 Vol. No. 13228 at pages 78 to 87 on 2nd June, 2009. The

defendants have also paid stamp duty of ` 38,000/- on the sale deed

executed by the defendants in favour of the plaintiff pursuant to the

judgment and decree dated 27th May, 2009.

In the circumstances, the point for consideration is whether

the plaintiff is liable to pay stamp duty on the decree which has been

passed and whether the decree tantamounts to instrument of

partition.

In Nitin Jain (supra), a suit for partition and rendition of

account was filed between the members belonging to an undivided

Hindu family. Parties were constituents of various bigger and

smaller HUFs and during the pendency of the proceedings the

parties had negotiated and arrived at an oral settlement. Pursuant

to the settlement, the movable and immovable properties were

distributed and the possession of respective portions had also been

taken over by the parties. The oral settlement which was arrived at

between the parties was also reduced into writing and incorporated

in the application which was filed before the Court. The compromise

application was accepted by the Court and the suit was decreed and

the compromise application was directed to form part of the decree.

The question had arisen as to whether such a decree incorporating

an oral partition between the parties will be an instrument of

partition and will require stamp duty or not.

In para 10 of the said judgment, the Division Bench had held

that the compromise application had recorded the oral family

settlement to avoid any ambiguity and the Court was not required to

pass any decree of partition but only declared the existing factual

position on the date when the compromise application was filed that

the parties had entered into an oral family settlement and had

partitioned and separated the properties among themselves. In para

10 of the said judgment, the Court had held as under:-

"10. Relevant paragraphs of the application for compromise and the orders passed by the Court have been quoted above. In the application it is specifically stated that the parties had entered into an oral family settlement and had distributed movable and immovable properties. In fact it is further stated that the parties had already been put in possession of the respective portions and the possession had been taken over. The compromise application merely records the oral family settlement to avoid any ambiguity. Therefore, in this case the Court was not required to pass any decree of partition but only declare the existing factual position on the date when the compromise application was filed, that the parties had entered into an oral family settlement and had partitioned and separated the properties amongst themselves. It was a decree of declaration that there exists an oral family settlement that was passed and no decree that amounts to an instrument of partition under Section 2(15) of the Stamp Act was passed. Thus, the objection raised by the Registry that the appellant and other co-owners must furnish valuation report and pay stamp duty is not correct and legally tenable. However, it is clarified that in case the appellant or any of the co-sharers want to have a decree of partition prepared by the Registry, they shall have to file valuation report and also pay stamp duty."

Consequently, it was held that the objection raised by the

Registry that the parties to the suit were required to furnish

valuation report and pay stamp duty was held to be not legally

tenable and correct.

Similarly in B.S. Goel and Ors. (supra) another Division Bench

of this Court has held that if a decree is passed on the basis of oral

family settlement, which is reduced into writing, the decree of a

partition will not be an instrument which will require stamp as

contemplated under Section 2(15) of the Stamp Act and will not

attract the stamp duty. Another Single Judge of this Court in

Rajinder Kumar (supra) has also reiterated the same legal

proposition.