Narinder Singh vs Devender Kaur and Others

Valmiki J Mehta, J.—A preliminary decree was passed in this suit on 3.3.2005 giving the original plaintiff-Sh. Narinder Singh a 2/7th share in the suit property. Defendant no. 1 was to have 1/7th share in the suit property and defendants no. 2 and 3 were also to have 2/7th share each in the suit property. The suit property is 72, Ring Road, Lajpat Nagar-III, New Delhi-3. Lot of water has flown under the bridge since then. The original plaintiff-Sh. Narinder Singh had entered into an agreement to sell with one Sh. Rajinder Kumar Lamba and who has now been substituted in place of Sh. Narinder Singh inasmuch as the suit for specific performance filed by Sh. Rajinder Kumar Lamba was decreed. A sale deed is still however yet to be executed in favour of Sh. Rajinder Kumar Lamba. Defendants no. 1 to 3 have also transferred their rights in the suit property under a registered agreement to sell after paying the necessary stamp duty. Formally however there are no sale deeds in favour of Sh. Rajinder Kumar Lamba and the defendant no. 4 who was added as a party to this suit as he had purchased the rights of the defendants no. 1 to 3 under a registered agreement to sell.

Counsel for the parties agree that the suit property cannot be partitioned inasmuch as since on account of passage of time there is increase in FAR for construction, and therefore, if the property is sold, shares of each of the party will have much greater value than on the physical partition.

Once it is agreed in a partition suit that the suit property cannot be physically partitioned and will have to be sold, a final decree has to be passed. This has been so held by me in the judgment dated 3.9.2012 in CS(OS) No. 541/2003 titled as Shri Ashok Kumar Arora vs. Shri Om Prakash & Ors. The relevant paras of this judgment are paras 3 and 4 which read as 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.

Accordingly, a final decree for partition be now drawn up in favour of the original plaintiff and the defendants no. 1 to 3 in the suit inasmuch as there are no sale deeds on record in favour of Sh. Rajinder Kumar Lamba and the defendant no. 4. However, it is clarified that after the final decree for partition is drawn up in favour of the original parties to the suit, whatever rights Sh. Rajinder Kumar Lamba or defendant no. 4 have, the same can be exercised in accordance with law, including in any execution proceedings which may be filed for this final decree. Finally decree be drawn up by the Registry on any of the party filing the necessary stamp duty in terms of Article 45 of the Stamp Act, 1899 as applicable to Delhi. Suit is accordingly disposed of.