Delhi High Court
Smt. Seema Thakur And Ors. vs Smt. Panchi Devi & Ors. on 21 September, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.2211/2003
% 21st September, 2012
SMT. SEEMA THAKUR AND ORS. ..... Plaintiffs
Through: Mr. Atul Bandhu, Adv
VERSUS
SMT. PANCHI DEVI & ORS. ..... Defendants
Through: Mr. Ashok Kr. Verma, Adv. For D-1
to D-4.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This suit was compromised and the compromise was recorded
on 16.11.2005. Rights of the parties in various properties were decided.
Defendants had to pay a particular amount to the plaintiff.
2. In a partition suit once shares are determined and there is an
order that properties have to be sold, in law, a final decree has to be passed
inasmuch as, government revenue in the form of stamp duty has to be
deposited in terms of Article 45 of the Stamp Act,1899 read with Section
2(15) of the said Act, as per which, a decree of a Court for partition would
CS(OS) No.2211/2003 Page 1 of 4
be included in the expression „instrument of partition‟.
3. I have had an occasion to consider this aspect in the judgment
titled as Sh. Ashok Kumar Arora Vs. Sh. Om Prakash & ors. in CS(OS)
541/2003 dated 3.9.2012. Paras 2 to 4 of the said judgment are relevant and
the same 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."
4. In view of the above, the suit is disposed of by confirming the
order dated 16.11.2005 declaring the shares of the parties as also the other
directions containing therein. It is directed that physical partition cannot
take place and the sale/purchase will take place in terms of the order dated
16.11.2005. Any issue with regard to the sale of the properties and
valuation, if any, will be decided in execution proceedings. Since various
orders have also been passed after 16.11.2005, although, a final decree was
to be passed at that stage, any of the parties to the present suit can take
benefit of the orders passed after 16.11.2005, to the extent the same are
necessary for effectuating the order dated 16.11.2005. The suit is disposed
of in terms of the aforesaid observations.
5. Since the suit is disposed of, all pending applications stand
disposed of.
SEPTEMBER 21, 2012 VALMIKI J. MEHTA, J
ib
