Delhi High Court
Narinder Singh vs Devender Kaur And Ors. on 18 September, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.1213/1996
% 18th September, 2012
NARINDER SINGH ..... Plaintiff
Through: Mr.S.N.Kumar, Sr. Adv. with
Mr. K.B.Soni, Adv.
versus
DEVENDER KAUR AND ORS. ..... Defendants
Through: Mr. A.P.Agarwal, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. A preliminary decree was passed in this suit on 3.3.2005 giving
the original plaintiff-Sh.Narinder Singh a 2/7th share in the suit property.
Defendant no.1 was to have 1/7th share in the suit property and defendants
no. 2 and 3 were also to have 2/7th share each in the suit property. The suit
property is 72, Ring Road, Lajpat Nagar-III, New Delhi-3.
2. Lot of water has flown under the bridge since then. The
original plaintiff-Sh.Narinder Singh had entered into an agreement to sell
with one Sh. Rajinder Kumar Lamba and who has now been substituted in
place of Sh.Narinder Singh inasmuch as the suit for specific performance
CS(OS) No.1213/1996 Page 1 of 4
filed by Sh. Rajinder Kumar Lamba was decreed. A sale deed is still
however yet to be executed in favour of Sh.Rajinder Kumar Lamba.
Defendants no. 1 to 3 have also transferred their rights in the suit property
under a registered agreement to sell after paying the necessary stamp duty.
Formally however there are no sale deeds in favour of Sh.Rajinder Kumar
Lamba and the defendant no.4 who was added as a party to this suit as he
had purchased the rights of the defendants no. 1 to 3 under a registered
agreement to sell.
3. Counsel for the parties agree that the suit property cannot be
partitioned inasmuch as since on account of passage of time there is increase
in FAR for construction, and therefore, if the property is sold, shares of each
of the party will have much greater value than on the physical partition.
4. Once it is agreed in a partition suit that the suit property cannot
be physically partitioned and will have to be sold, a final decree has to be
passed. This has been so held by me in the judgment dated 3.9.2012 in
CS(OS) No. 541/2003 titled as Shri Ashok Kumar Arora vs. Shri Om
Prakash & Ors. The relevant paras of this judgment are paras 3 and 4
which read as under:-
3. It has been held by the learned Single Judge of this
Court in the case of Must. Shahabia Begum Vs. Must.
CS(OS) No.1213/1996 Page 2 of 4
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. Accordingly, a final decree for partition be now drawn up in
favour of the original plaintiff and the defendants no. 1 to 3 in the suit
inasmuch as there are no sale deeds on record in favour of Sh. Rajinder
Kumar Lamba and the defendant no.4. However, it is clarified that after the
final decree for partition is drawn up in favour of the original parties to the
suit, whatever rights Sh. Rajinder Kumar Lamba or defendant no.4 have, the
same can be exercised in accordance with law, including in any execution
proceedings which may be filed for this final decree.
6. Finally decree be drawn up by the Registry on any of the party
filing the necessary stamp duty in terms of Article 45 of the Stamp Act, 1899
as applicable to Delhi. Suit is accordingly disposed of.
VALMIKI J. MEHTA, J
SEPTEMBER 18, 2012
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