Bhai Manjit Singh And Ors. vs Bhai Analjit Singh And Ors.
2012 Latest Caselaw 5900 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+         IA No.13464/2012 in CS(OS) 1673/2006

      BHAI MANJIT SINGH AND ORS.          ..... Plaintiffs
              Through: Mr. Anil Airi, Advocate .

             versus

      BHAI ANALJIT SINGH AND ORS.           ..... Defendants
              Through: Mr. B.B.Sawhney, Senior Advocate
              with Mr. B.K. Sood, Advocate.


%                         Date of Decision : October 01, 2012

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

                          ORDER (ORAL)

: REVA KHETRAPAL, J.

1. The present application has been filed by the Defendant No.3 under Section 151 of the Code of Civil Procedure praying for appropriate directions to be issued to the Registry to draw up the decree without requiring the parties to file stamp duty.

2. The abovementioned suit, filed by the Plaintiff No.1 in August, 2006 seeking, inter-alia, partition of the estate of late Dr. Bhai Mohan Singh, as mentioned in Schedule-I of the plaint, on the premise that late Dr. Bhai Mohan Singh had died intestate and assailing the validity of the registered Will dated 24.08.2005, was decreed on

27.4.2012 in terms of the Memorandum of Family Settlement dated 26.04.2012 and the application bearing IA No.7789/2012 filed under Order XXIII Rule 3 CPC. The Registry was directed to draw up a decree sheet in terms thereof.

3. The Registry of this Court, by its letter dated 15.06.2012, called upon the parties to file stamp duty amounting to Rs.1,10,00,000/- to facilitate drawing up of the decree by the Registry. The present application has been preferred by the Defendant No.3 on the premise that the said communication calling upon the parties to file stamp duty of Rs.1,10,00,000/- has been addressed mistaking the compromise decree incorporating the Memorandum of Family Settlement passed in the suit to be an "instrument of partition" falling under Article 45 of the Stamp Act, 1899.

4. It is contended by the learned counsel for the Applicant (defendant No.3) that the decree incorporating the Memorandum of Family Settlement dated 26.04.2012 is not an „instrument of partition‟ because the oral family settlement was concluded on 20.04.2012, and subsequently on 26.04.2012, recorded in writing by way of Memorandum of Family Settlement. It is further contended that no part of the estate of late Dr. Bhai Mohan Singh or any other assets as set out in Schedule I of the plaint and alleged by Plaintiff no. 1 to be forming part of the estate, were actually divided/partitioned between the parties. In fact, by way of the Memorandum of Family Settlement, the Plaintiffs accepted the Will dated 24.08.2005 of late

Dr. Bhai Mohan Singh as genuine, valid and binding and undertook to withdraw his objections to the grant of probate of the said Will dated 24.08.2005, pending before the Tis Hazari Courts, Delhi. The Plaintiffs further withdrew, gave up and released the defendants from all allegations, contentions and claims made against them in the present suit.

5. To buttress his contentions, the learned counsel for the Applicant relied upon the following judgments:-

(i) Nitin Jain v. Anil Jain & Ors., AIR 2007 Delhi 21

(ii) B.S. Goel and Ors. v. Registrar, High Court of Delhi, AIR 2007 Delhi 72

(iii) Mukarramuddin v. Rahimuddin and Ors., AIR 1989 Delhi

(iv) Shri Rajinder Kumv v. Sh.Iqbal Singh and Ors, AIR 2003 Delhi 441

(v) Manjeet Kaur v. Amarjeet Kaur and Ors., ILR (2005) 1 DEL 633

(vi) Mst.Razia Begum v. Mohd.Ilyas & Ors., CS(OS) No. 456/2009 dated 17th February 2012.

(vii) Mahip Singh Thakur v. Hema Thakur., 120(2005) DLT173

6. The Law in this regard is fairly well settled. An „instrument of partition‟ as defined in Section 2(15) of the Stamp Act, 1899 includes a final order for effecting a partition passed by any Civil Court.

However, by a catena of judgments, including those relied upon by the Applicant, it is well settled that every decree in a partition suit is not an „instrument of partition‟ and cannot be required to be registered and drawn on a stamp paper. Each case would depend upon its own peculiar facts. A Division Bench of this Court in the case of B.S.Goel (Supra) 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 as it affects partition of a property and hence requires to be stamped. Such a division of property has the effect of creation of an exclusive right, title or interest in those portions, which fall to the exclusive shares of the others. Such a decree shall be covered by the definition of instrument of partition as defined in clause (15) of Section 2 of the Act. In such a case, the provisions of Article 45 of Schedule I would be attracted and stamp duty would be leviable and as a result, the decree shall have to be drawn up on a stamp paper of adequate value."

7. It is also trite that the Courts have recognized that an oral family settlement, when reduced in writing in the form of a Memorandum of Settlement, the said Memorandum does not by itself create or extinguish any rights in immovable properties, but only records for information/reference pre-existing rights of the parties as created by oral settlement and does not require compulsory registration. On the same analogy, any decree drawn by the Court recognizing an oral settlement between the members of a family which had taken place earlier and subsequently concretized in a

Memorandum of Family Settlement, does not require execution on a stamp paper or require compulsory registration.

8. Applying the aforesaid legal position to the facts of the present case, I find merit in the prayer made in the present application. The present suit was decreed on 27.4.2012 in terms of the Memorandum of Family Settlement dated 26.4.2012 and joint application filed by the parties under Order XXIII Rule 3 CPC. The Registry was directed to draw up a decree sheet incorporating the contents of the aforesaid Memorandum and the said application. The joint application bearing IA No.7789/2012, filed by the parties under Order XXIII Rule 3, praying for passing of a decree in terms of the settlement, contains the parties‟ contention that the parties had amicably resolved all their disputes during the pendency of the suit, and the said settlement had been duly recorded in the Memorandum of Family Settlement dated 26.04.2012.

9. A perusal of the Memorandum of Family Settlement dated 26.04.2012 further reveals that no right of any nature whatsoever was either created or extinguished by the said Memorandum in any immovable or movable properties. The plaintiffs have in fact through an oral agreement withdrawn their objections to the Will dated 24.08.2005 of late Dr. Bhai Mohan Singh. No division of properties in any manner has been effected by the Memorandum in question, which is merely a contemporaneous record of the family settlement entered into the parties a few days prior to the recording of the same

in the Memorandum. Thus, the plaintiffs have, in effect, withdrawn the allegations made in the plaint. The Memorandum in question also contains the following recital, evidencing the factum of oral settlement:-

"And whereas to avoid costly and lengthy litigation and to protect and maintain the substantial assets of the BMFS Trust and to enable the BMFS Trust to use such assets to further its objectives, and also to settle the disputes and differences between BAS and BMS and their various holdings, affiliates etc., the parties had discussions to amicably resolve and settle all disputes, differences and litigations and arrived at and concluded a full and final settlement on 20.04.2012 and now desire to record the same in the present Memorandum."

10. It is, therefore, clear that the settlement between the parties does not result in any partition or in any manner creating or extinguishing any right in immovable or movable properties. Even if for the sake of argument, it is assumed that any right is created or extinguished, the settlement between the parties was arrived orally on 20.04.2012 and subsequently was reduced in writing on 26.04.2012. Accordingly, neither the Memorandum of Family Settlement nor the decree passed in terms thereof can be said to be an „instrument of partition‟ within the meaning of Section 2(15) of the Stamp Act, 1899 requiring payment of stamp duty as per Article 45 thereof.

11. In view of the aforesaid discussion, the Registry‟s letter dated 15.06.2012 can not be said to be justified. The Registry is directed to draw up a decree sheet without insisting on payment of stamp duty by the parties.

12. The application stands disposed of in the above terms.

REVA KHETRAPAL (JUDGE) October 01, 2012 km