Krishna Lakra and Another vs Satbir Singh Dahiya and Others

Valmiki J Mehta, J.—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. 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 vs. Shri Om Prakash & Ors.. Paras 3 and 4 of the judgment are relevant and reproduced here-in-under:-

It has been held by the learned Single Judge of this Court in the case of Shahabia Begum Vs. Pukhraj Begum and Others, 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:-

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 Satyanandam and Others Vs. Paramkusam Nammayya and Another, ). The final decree thus being an instrument of partition was chargeable with duty, as already noticed, under Article 45.

(Underlining added)

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.

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.

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. 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.