Shri Ashok Kumar Arora vs Shri Om Prakash and Others

Valmiki J Mehta, J.—This is a suit for partition. A preliminary decree was passed on 23.12.2010. By the same order, it was directed that the suit property be sold. 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.

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 Del. 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:-

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.

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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.

In view of the above, let a final decree be passed confirming the preliminary decree passed on 23.12.2010 and the shares of the parties as stated therein. It is ordered that the suit property will be sold. The proceedings for sale, if necessary, will take place in execution proceedings and where the net sale proceeds will be distributed between the parties. Since there are earlier orders of this Court with respect to the sale of the property, to the extent such earlier orders passed in the suit are required in execution proceedings they are preserved. Parties can take the benefit of such orders which have been passed including the order dated 23.12.2010. Let a final decree be drawn up on the party/parties filing the appropriate non-judicial stamp papers in accordance with law giving the respective shares as per the preliminary decree and also recording that the property will be sold as the same cannot be partitioned by metes and bounds as per the common stand of the parties. Parties are left to bear their own costs.