Delhi High Court
Krishna Lakra And Anr. vs Satbir Singh Dahiya And Ors. on 19 September, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.2251/1999
% 19th September, 2012
KRISHNA LAKRA AND ANR. ..... Plaintiffs
Through: Mr. Bishwajit Singh, Adv.
versus
SATBIR SINGH DAHIYA AND ORS. ..... Defendants
Through: Ms. Sangeeta Chandra, Adv. for DDA.
Mr. S.Sood, Adv. for D-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. In this suit for partition, the preliminary decree was passed on
16.9.2008. By the last order dated 18.5.2012 parties agreed that the suit
property cannot be partitioned by metes and bounds and will have to be sold.
Once there is an order for sale of the property, a final decree will have to be
passed.
2. I have had an occasion to consider this aspect in the judgment
dated 3.9.2012 in CS(OS) No. 541/2003 titled as Shri Ashok Kumar Arora
CS(OS) No.2251/1999 Page 1 of 4
vs. Shri Om Prakash & Ors.. Paras 3 and 4 of the judgment are relevant
and reproduced here-in-under:-
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."
3. After passing of the preliminary decree on 16.9.2008, plaintiff
no. 2 has sold her 1/4th share to the legal heirs of defendant no.1, a position
which is not disputed by any of the parties appearing before me today and
therefore, preliminary decree dated 16.9.2008 will be amended accordingly.
The legal heirs of the defendant no.1 will now be 50% owner of the suit
property and the plaintiff no.1 and defendant no.2 will be the owners of
1/4th share each.
4. Accordingly a final decree is passed in terms of the preliminary
decree as modified by me today above and also observing that property will
have to be sold. Final decree be drawn up on the requisite non-judicial
stamp duty being filed by the concerned party or any of the parties.
5. It is clarified that any issue with respect to sale, if it does not
take place outside the court, will be an issue to be decided in execution
proceedings. However, once the final decree is drawn up after payment of
stamp duty, DDA will necessarily act in terms of the same.
VALMIKI J. MEHTA, J
SEPTEMBER 19, 2012
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