Prem Dass And Ors vs Sujata
2016 Latest Caselaw 1270 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Judgment reserved on : 15.02.2016
                   Judgment delivered on : 18.02.2016


+      CM(M) 988/2012 & C.M. No.15331/2012

       PREM DASS AND ORS                               ..... Petitioners
                            Through      Mr.Om    Prakash    and             Mr.
                                         Shwetank Vedi, Advocates.
                            versus
       SUJATA                                          ..... Respondent
                            Through      Mr.C.S.Prasher     and              Mr.
                                         S.K.Badal, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 Orders impugned before this Court are the orders dated

02.6.2011, 08.8.2011, 06.02.2012 and 11.6.2012. This petition arises

out of a suit filed by the plaintiff-sister against her other siblings seeking

a partition of the suit properties.

2 Record discloses that Ram Swaroop was the owner of two

properties -(i) property bearing no.1915/43, Naiwala Karol Bagh, New

Delhi, (ii) property bearing no.8264, Multani Building, Roshanara Road,

Subzi Mandi, Delhi. Ram Swaroop expired on 20.7.2004. He died

intestate. His daughter Sujata has filed the present suit against her

siblings. This was qua aforenoted properties. Submission being that she

is entitled to a partition of the suit properties as their father had died

intestate.

3 In the course of the proceedings, on 14.9.2009, a preliminary

decree was passed by the Trial Court. It was noted that there are five

siblings all of whom are entitled to an equal share in the suit properties

i.e. 1/5th share. This is an admitted position even on date.

4 On 07.4.2010 a local commissioner was appointed. He had filed his report stating that the properties cannot be divided by metes and bounds.

5 The plaintiff on 13.6.2010 filed a valuation report qua the two

properties. The property at 1915/43, Naiwala Karol Bagh, New Delhi

has a market value of Rs.19 lacs; the property at 8264, Multani

Building, Roshanara Road, Subzi Mandi, Delhi has a market value of

Rs.9 lacs.

6 There is no order dated 02.6.2011 on the court record. Order

dated 08.8.2011 was an order vide which the Court had noted that the

two properties (afore-detailed) have a market value of Rs.30 lacs

cumulatively. It had been noted that each party has a 1/6 th share. This

was later on modified on an application filed before the Court and the

modified order (dated 06.02.2012) read as 1/5th share of each party.

There is no quarrel on this 1/5th share. Vide the order dated 08.8.2011

the Court had further held that since the share of the four defendants in

the property at Roshanara Road, Subzi Mandi amounts to Rs.4 lacs and

on the plaintiff paying a sum of Rs.4 lacs to all the four defendants, the

plaintiff will have exclusive possession of the property at 8264, Multani

Building, Roshanara Road, Subzi Mandi, Delhi where the plaintiff is

already staying. This order was passed in the presence of the plaintiff

and the counsel for the defendants. Payment of this amount of Rs.4 lacs

was to be paid by the plaintiff within a period of two months to the

defendants.

7 This order dated 08.8.2011 was challenged by an application

dated 13.10.2011 which was filed within two months of passing of this

order. In this application (under Sections 151 and 152 C.P.C.) the

contention of the defendants was that a fresh order of payment should

be given keeping in view the valuation report filed by the defendants as

the valuation report filed by the plaintiff dated 13.6.2010 is incorrect;

payment of Rs.4 lacs to be paid by the plaintiff in favour of all the

defendants pursuant to which the plaintiff would be entitled to all rights

in the property at 8264, Multani Building, Roshanara Road, Subzi

Mandi, Delhi is required to be reconsidered.

8 On 06.02.2012 (second impugned order) vide which the

correction from 1/6th share to 1/5th share qua each of the parties was

made but the submission that the amount of Rs.4 lacs to be paid by the

plaintiff to all the defendants requires a reconsideration was declined.

9 A subsequent application was thereafter filed on 11.6.2012

seeking a modification of the orders dated 08.8.2011 and 06.02.2012.

The Court dismissed the application on the same day. It was noted that

that there were five share holders in the two properties and the property

at Roshanara Road was valued at Rs.9 lacs whereas the property at

Naiwala Karol Bagh was valued at Rs.19 lacs; since each party had a

1/5th share, keeping in view the valuation of the properties the order

dated 08.8.2011 directing the plaintiff to pay a sum of Rs.4 lacs to all

the defendants in lieu of the property at Roshanara Road suffers from no

infirmity; the share of each party in the two properties being Rs.6 lacs

and on payment of Rs.4 lacs to the defendants she was entitled to retain

this property at Roshanara Raod which was valued at Rs.9 lacs.

10 The foremost arguments urged before this Court is that the file

has now been consigned to record room. During the course of trial at

best it could be said that a preliminary decree had been passed but no

final decree of partition has been passed. The order passed on 02.6.2012

reveals that on that date the file was consigned to the record room.

Admittedly, perusal of this order shows that the file has been consigned

to record and final decree has yet not yet been passed.

11 Queries and counter-queries have been put to the learned

counsels. Admittedly, it was a preliminary decree of partition which has

been passed in the pending proceedings. This was in this suit for

partition. The report of the local commissioner filed before the Trial

Court (dated 13.6.2010) had reported that the properties cannot be

divided by metes and bounds.

12 It is a settled proposition of law that a preliminary decree only

declares rights and interests of the parties. In certain cases a decree may

be both preliminary and final. What is executable is, however, a final

decree and not a preliminary decree unless and until the final decree is a

part of the preliminary decree. Admittedly, no final decree has been

passed in this case.

13 In (2007) 2 SCC 355 Harsham Abbas Sayyad Vs. Usman Abbas

Sayyad and Ors. the Apex Court while dealing with a similar factual

matrix has noted what can be executed is a final decree and not a

preliminary decree within the meaning of Section 2(2) of the CPC. The

explanation under Section 2(2) presupposes that the decree is final when

the adjudication completely disposes of the suit. Under Order XX Rule

18 of the CPC the Court may pass a preliminary decree and proceedings

for a final decree may be initiated thereafter; there being no limitation

for the initiation of the said proceedings. However, what can be

executed is a final decree and not a preliminary decree.

14 In the instant case, admittedly, there is no final decree. Question

of execution of a final decree thus does not arise. Record before this

Court shows that the parties had agreed for adjudication of their rights

and interests inter se only qua one property i.e. the property at

Roshanara Road, Subzi Mandi. The status of the second property of

Naiwala, Karol Bagh and the rights of the four defendants had not been

adjudicated upon. As such even a preliminary decree was not passed as

the rights of the defendants yet remained to be answered. The order

dated 02.6.2012 had thereafter consigned the file to the record room

without passing a final decree.

15 This Court also notes the grievance of the four defendants (before

this Court ) that their valuation reports were not considered by the Trial

Court and the valuation per se of the plaintiff had been noted while

recording the order dated 08.8.2011. No doubt they were represented

through their counsel but their counsel did not have instructions to make

a submission on their behalf pursuant to which this order was passed

directing the plaintiff to pay a sum of Rs.4 lacs and keep the entire

property of Roshanara Road. Submission being that this order has been

wholly prejudicial to the interest of the defendants and it was on

13.10.2011 itself i.e. within a span of two months that they had moved

an appropriate application seeking correction in that order. A written

complaint dated 08.12.2011 against their counsel Shri Madan Sagar was

also made before the Bar Council of Delhi. The fate of that application

has already been noted above; it was declined.

16 This Court is of the view that in its power of superintendence it

would be just and equitable that all the parties should be given a fair

hearing before the Trial Court who shall pass an order afresh on the inter

se rights of the parties. A preliminary decree/final decree may be passed

after objections and counter-objections made by all the five siblings

(four defendants before this Court and one plaintiff) on the record which

has already been placed before the Trial Court but which as per the

contention of the defendants was not considered as their valuation

reports qua the two properties was never assessed. Accordingly,

impugned orders are accordingly set aside. The Trial Court shall after

hearing the parties pass a preliminary decree and thereafter on the

initiation of appropriate proceedings by the respective parties proceed to

pass a final decree.

17     Petition disposed of in the above terms.
18    parties are directed to appear before Trial Court on 11.03.2016.




                                        INDERMEET KAUR, J

FEBRUARY 18, 2016
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