Delhi High Court
A.V.M. (Retired) K.G. Mohan ... vs Arun Mohan Chandra & Ors. on 8 October, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS)No.1236/2003
% 8th October, 2012
A.V.M. (RETIRED) K.G. MOHAN CHANDRA ..... Plaintiff
Through: Mr. Varun Gupta, Advocate for the
plaintiff.
Mr. Gourav Duggal, Advocate
appointed as Court receiver.
versus
ARUN MOHAN CHANDRA & ORS. ..... Defendants
Through: Ms. Deepali Chandhoke, Advocate
for defendant No.1.
Mr. I.S. Alag, Advocate for
defendant No.2.
Mr. D.R. Thadani, Advocate for
defendant Nos.3 and 4.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
I.A. No.18662/2012 (exemption)
Exemption allowed subject to just exceptions.
Application stands disposed of.
+ CS(OS) No.1236/2003 and I.A. No.18652/2012 (under Section 151
CPC by plaintiff)
1. In the present suit, a preliminary decree was passed on
CS(OS)No.1236/2003 Page 1 of 5
1.5.2009 giving the plaintiff and the defendant Nos.1 to 4 1/5 th share each
in the suit properties including the property bearing No.C-735, New
Friends Colony, New Delhi. After passing of the preliminary decree,
parties have agreed that suit property has to be sold. Once there is an
order for sale of the properties, a final decree for partition has to be drawn
up. Final decree has to be prepared on non-judicial stamp papers in
accordance with law. I have had an occasion to consider this aspect in
the judgment dated 3.9.2012 in CS(OS) No.541/2003 in suit titled as Sh.
Ashok Kumar Arora Vs. Sh. Om Prakash & Ors. and paras 2 to 5 of the
said judgment read as under:-
"2. As per Section 2(15) of the Indian Stamp Act,
1899, an instrument of partition includes a decree which is passed
by a Court. Stamp duty is payable as per Article 45 of the Stamp
Act, 1899 on an instrument of partition. Once there exists a
preliminary decree declaring the shares and thereafter it is agreed
that the properties have to be sold, at that stage, a final decree for
partition has to be drawn up because Government Revenue has to
be paid before further steps are taken for sale of the suit property.
3. It has been held by the learned Single Judge of this Court
in the case of Must. Shahabia Begum Vs. Must. Pukhraj Begum
and ors. AIR 1973 Delhi 154 (V 60 C 47) that once there is an
order of sale of the properties in a partition suit, a final decree has
to be passed. Para 7 of the said judgment reads as under:-
"7. Mr. S. I.Bhatia, the learned counsel for the respondents
submitted that the property which was joint was the , which
was ordered to be auctioned without being partitioned. The
shares of parties concerned had been declared and the sale
proceeds, when recovered were to be given over to them in
proportion to their shares so fixed. There was, accordingly, no
order for effecting a partition to the property in suit; and the
final decree, according to Mr. Bhatia, could not be said to be
an instrument of partition. This contention, however, is not
correct. The decree directing the sale of the house and the
division of the sale proceeds, was a final order effecting a
partition. There would have been no occasion for ordering
sale of , if it was not to be partitioned. The sale of the house
and the distribution of the sale proceeds were methods by or
the manner in which the partition was to be effected. The sale
itself was in the course of partition, which was to be
completed by the division of the sale proceeds. The order
giving such direction was, therefore, an instrument of partition
as defined in Sec.2(15) of the Stamp Act, as it did effect a
partition of the property. The payment to the parties
concerned were to be made out of the sale proceeds of the
joint property, which otherwise might not have been sold at
all. (See Pandivi Satvanandam V. Paramkusum Mammayya
AIR 1938 Madras 307). The final decree thus being an
instrument of partition was chargeable with duty, as already
noticed, under Article 45." (underlining added)
4. In my opinion, drawing up of a final decree, once there is
an order of sale is also otherwise beneficial to the parties to the
suit. Firstly, the value of the property gets fixed as on the date of
passing of the final decree for partition and thereafter whatever the
value, on which the property is sold, the stamp duty which would
be payable, will be only as on the date of passing of a final decree.
Secondly, parties need not go in execution and there can be
negotiations outside the Court to sell the suit property. It is well
known that when the properties are sold through the Court, and in
a way are considered as disputed properties, parties do not have
benefit of actual values of the properties. Thirdly, there may be
other reasons also for taking benefit of sale of the properties
without the assistance of the Court in execution proceedings.
5. In view of the above, let a final decree be passed
confirming the preliminary decree passed on 23.12.2010 and the
shares of the parties as stated therein. It is ordered that the suit
property will be sold. The proceedings for sale, if necessary, will
take place in execution proceedings and where the net sale
proceeds will be distributed between the parties. Since there are
earlier orders of this Court with respect to the sale of the property,
to the extent such earlier orders passed in the suit are required in
execution proceedings they are preserved. Parties can take the
benefit of such orders which have been passed including the order
dated 23.12.2010."
2. Today, there is also an application on behalf of the plaintiff
being I.A. No.18652/2012 for modification of the preliminary decree as
the plaintiff has relinquished his 1/5th share in favour of the defendant
No.1. The preliminary decree therefore stands modified limited to the
extent that defendant No.1 will now have 2/5th share in the suit property
and defendant No.1will stand transposed as the plaintiff, however, this
Court makes no observations with regard to possession or its entitlement
of any of the parties except observing that orders which have been passed
after passing of the preliminary decree, the same will enure for the benefit
of the parties in execution proceedings.
3. The order with respect to appointment of a receiver and
other related orders will also be available for the benefit of the parties in
execution proceedings.
4. Suit is disposed of with the aforesaid observations and
parties are at liberty to get further issues decided in execution
proceedings after preparation of the final decree. Any of the parties are at
liberty to get the final decree prepared by depositing the requisite non-
judicial stamp papers. If the receiver has to file any report, the same can
be filed in the execution proceedings or in the present suit and the report
would be considered in the execution proceedings.
VALMIKI J. MEHTA, J
OCTOBER 08, 2012
Ne
