Shri Ashok Kumar Arora vs Shri Om Prakash & Ors.
2012 Latest Caselaw 5242 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No. 541/2003
%                                                            3rd September, 2012

SHRI ASHOK KUMAR ARORA                                     ..... Plaintiff
                 Through:                Mr. G.B.Tulsiani, Adv.


                            VERSUS

SHRI OM PRAKASH & ORS.                                     ......Defendants
                  Through:               Mr. Radhey Shyam and Mr. Laxman
                                         Mehta, Advs. for LRs of deceased defendant
                                         no.2.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?            YES


VALMIKI J. MEHTA, J (ORAL)

1.             This is a suit for partition. A preliminary decree was passed on

23.12.2010. By the same order, it was directed that the suit property be sold.


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


CS(OS) 541/2003.                                                             Page 1 of 4
 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

CS(OS) 541/2003.                                                            Page 2 of 4
              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

CS(OS) 541/2003.                                                             Page 3 of 4
 can take the benefit of such orders which have been passed including the order

dated 23.12.2010.

6.           Let a final decree be drawn up on the party/parties filing the

appropriate non-judicial stamp papers in accordance with law giving the respective

shares as per the preliminary decree and also recording that the property will be

sold as the same cannot be partitioned by metes and bounds as per the common

stand of the parties. Parties are left to bear their own costs.




SEPTEMBER 03, 2012                                    VALMIKI J. MEHTA, J.

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