Delhi High Court
Padmawati Bhalla vs Master Sahil And Ors on 8 February, 2017
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 08.02.2017
+ FAO(OS) 24/2017
PADMAWATI BHALLA ..... Appellant
versus
MASTER SAHIL AND ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr Abhishek Singh.
For the Respondent : Mr Vaibhav Jain, Adv. for R-1 & R-3 along with respondent
Nos.1 and 2 in person.
Mr Amit Bhalla, Adv. for R-4 & R-5 with R-6 (ii) in person.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE ASHUTOSH KUMAR
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This appeal has been filed being aggrieved by the order dated
22.12.2016 whereby the learned single Judge refused to clarify/modify
the order dated 23.05.2016 passed by another learned single Judge in IA
No.6536/2016 which was an application under Order 23 Rule 3 CPC.
2. The appellant is aggrieved by the fact that the Registry is insisting
that the decree followed by the order dated 23.05.2016 ought to be
stamped as an instrument of partition under Section 2 (15) of The Indian
Stamp Act, 1899 read with Schedule I of Article 45 thereof.
3. The case of the appellant as also of the respondents, who are all
aggrieved, is that the decree which is to be drawn up pursuant to the order
dated 23.05.2015 should not be construed as a decree of partition but as a
declaratory decree. Their case is that although in the suit for the partition
a preliminary decree had been passed, subsequently, the parties entered
into an oral settlement and also divided the properties by metes and
bounds without any written instrument. It is thereafter that the
Memorandum of Understanding, for the reason of recording for posterity
the terms of the settlement already arrived at, was entered into. The
Memorandum of Understanding was entered into on 15.05.2016 and the
oral settlement was made the basis for the application under Order 23
Rule 3 CPC.
4. We agree with the submissions made by the learned counsel for the
parties that the decree that followed the order dated 23.05.2016 ought to
be regarded as a declaratory decree and not as an instrument of partition.
There is a judicial authority for this. A Division Bench of this court in
the case of Nitin Jain vs. Anuj Jain & Ors. observed as under:-
"7. However, Courts have recognised oral partitions in cases
of joint families. An oral partition is not an instrument of
partition as contemplated under Section 2(15) of the Stamp
Act. Therefore, as it is not an instrument, on an oral partition
no stamp duty is payable.
8. The Courts have recognised that it is legally permissible
to arrive at an oral family settlement dividing/partitioning the
properties and thereafter record a memorandum in writing
whereby the existing joint owners for the sake of propriety
record that the property has been already partitioned or
divided. The memorandum does not by itself partition the
properties but only records for information what has already
been done by oral partition. The memorandum itself does not
create or extinguish any rights. A record of oral partition in
writing is created. The writing records a pre existing right
and does not by itself partition the properties for the first
time. As the memorandum only records oral partition which
has already taken place but does not in praesenti create any
right, it cannot be treated as an instrument creating partition.
Refer, Tek Bahadur Bhujil versus Debi Singh Bhujil and
others reported in AIR 1966 SC 292), Bakhtawar Singh v.
Gurdev Singh reported in (1996) 9 SCC 370, Kale v. Dy.
Director of Consolidation reported in (1976) 3 SCC 119 :
Rosan Singh v. Zile Sing reported in AIR 1988 SC 881 and
Bachan Singh v. Kartar Singh and others reported in 2001
(10) JT (SC) 64.
9. In view of the legal position explained above, it follows
that a decree of partition is an instrument of partition and
therefore is required to be stamped under Schedule 1 of
Article 45 r/w Section 2(15) of the Stamp Act. However, an
oral family settlement dividing or partitioning the property is
not required to be stamped. Similarly, a memorandum
recording an oral family settlement which has already taken
place is not an instrument dividing or agreeing to divide
property and is therefore not required to be stamped.
10. Relevant paragraphs of the application for compromise
and the orders passed by the Court have been quoted above.
In the application it is specifically stated that the parties had
entered into an oral family settlement and had distributed
movable and immovable properties. In fact it is further stated
that the parties had already been put in possession of the
respective portions and the possession had been taken over.
The compromise application merely records the oral family
settlement to avoid any ambiguity. Therefore, in this case the
Court was not required to pass any decree of partition but
only declare the existing factual position on the date when
the compromise application was filed, that the parties had
entered into an oral family settlement and had partitioned
and separated the properties amongst themselves. It was a
decree of declaration that there exists an oral family
settlement that was passed and no decree that amounts to an
instrument of partition under Section 2(15) of the Stamp Act
was passed. Thus, the objection raised by the Registry that
the appellant and other co-owners must furnish valuation
report and pay stamp duty is not correct and legally tenable.
However, it is clarified that in case the appellant or any of
the co-sharers want to have a decree of partition prepared by
the Registry, they shall have to file valuation report and also
pay stamp duty."
5. Consequently, following the said decision inasmuch as the decree
by itself does not create or extinguish any right but only declares the
rights of the parties as already settled amongst them orally, the same shall
be regarded as a declaratory decree. Thus the objection of the Registry
that the parties must furnish a valuation report and pay stamp duty is not
correct and is not legally tenable. The obvious corollary of this is that the
Registry shall draw up the declaratory decree without insisting for the
stamp duty under Section 2(15) of the Stamp Act.
6. The appeal is allowed as above.
BADAR DURREZ AHMED, J
ASHUTOSH KUMAR, J
FEBRUARY 08, 2017
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