Full Text
CS(OS) 1098/2005
27th November, 2017 INDU SINGH AND ANR. ..... Plaintiffs
Through: Mr. Y.P Narula, Sr. Advocate with Mr. Abhay Narula and Ms. Tara Narula, Advocates.
Through: Mr. Pranav Vashishtha, Advocate.
To be referred to the Reporter or not? YES VALMIKI J. MEHTA, J (ORAL)
CPC, filed by plaintiffs 1, 2 and D-1)
JUDGMENT
1. This suit was disposed of by passing a preliminary decree on 7.7.2008. The order dated 7.7.2008 contains detailed terms. The preliminary decree is with respect to both immovable and movable properties.
2. Though, the order dated 7.7.2008 refers to the decree passed as a preliminary decree, however, so far as the suit being 2017:DHC:7262 decreed for the immovable property bearing no. 6/1, Roop Nagar, Delhi is concerned, the decree will not be a preliminary decree but in fact will be a final decree because it has been directed in the order dated 7.7.2008, in view of para 9 of the joint application filed by the parties, that the property at Roop Nagar will be sold. An order for sale of a property is deemed to be a decree, i.e a final decree, as per Section 8 of the Partition Act, 1983. Section 8 of the Partition Act reads as under:- ―8. Orders For Sale To Be Deemed Decrees.—Any order for sale made by the court under section 2, 3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure, (14 of 1882).‖
3. A learned Single Judge of this Court (Hon'ble Mr. Justice Rajiv Sahai Endlaw) vide a subsequent order dated 14.2.2013, and more particularly another later order dated 12.7.2016, has held that the issue of sale of the property or further directions to the Local Commissioner can only be after a final decree is prepared by paying of the stamp duty. A final decree was ordered to be prepared by payment of requisite stamp duty. The order dated 12.7.2016 reads as under:- “IA No.7970/2016 (of the plaintiffs no.1&2 and defendant no.1 for directions to the Court Commissioner to sell the property).
1. In this suit for partition of property no.6/1, Roop Nagar, Delhi – 110 007, as far back as in 7th July, 2008 a preliminary decree for partition was passed in accordance with the compromise arrived at between the parties. As per the said compromise, the parties had inter alia agreed to sale of the property and for distribution of sale proceeds as provided therein.
2. Thereafter the proceedings have been pending though no steps for a final decree were taken by the parties. On the contrary the parties first attempted to sell the property themselves and thereafter applied to this Court for appointment of a Court Commissioner for sale of the property. However it appears that after the order dated 14th November, 2014 of appointment of Court Commissioner, the parties again tried to sell the property themselves but remained unsuccessful.
3. Now this application has been filed for directions to the Court Commissioner to sell the property.
4. What the plaintiffs are wanting this Court to do is to execute a preliminary decree and which the senior counsel for the plaintiffs/applicants is unable to explain, how is it possible in law. The only step which remains to be taken in this proceeding is passing of a final decree if so desired by the parties and the parties would be required to pay the requisite Stamp Duty on the said final decree and only thereafter the parties can, in accordance with the final decree, seek execution thereof. No execution as is sought to be effected, without passing of the final decree is possible.
5. On enquiry the senior counsel for the plaintiffs/applicants and the counsel for the defendant no.5 appearing on advance notice state that the final decree for partition in terms of the preliminary decree as modified by the Supreme Court vide order dated 5th July, 2013 be passed.
6. It is ordered accordingly. The parties to bear their own costs.
7. Decree sheet be prepared.
8. The Stamp Duty payable on the decree sheet be computed and informed to the parties to enable them to pay the same.
9. Only thereafter can the parties, if desire the assistance of the Court in executing the same, would be entitled to apply to this Court for execution.
10. The suit is disposed of.
11. The date of 5th September, 2016 fixed in the suit is cancelled.‖ (emphasis added)
4. Now inspite of the suit having been disposed of by passing a final decree on 12.7.2016, to be embossed on non-judicial stamp papers as per the Stamp Act, this application IA No. 6541/2017 is filed by the plaintiffs and defendant no.1 for drawing of the final decree without payment of the stamp duty. Learned Senior Counsel for the plaintiffs has in support of the proposition that stamp duty is not be paid placed reliance upon a Division Bench judgment of this Court in the case of EFA (OS) No. 6/2012 decided on 31.1.2013 titled as Sushil Kumar Gupta Vs. Smt. Prem Gupta and Ors., and which judgment by referring to an earlier Division Bench judgment of this Court in the case of K.N. Khanna Vs. B.K. Khanna, (2000) 87 DLT 286 (DB), holds that steps for selling of the property are not steps after the final decree but are steps prior to the final decree.
5. It is noted that the Division Bench judgments of this Court in the cases of Sushil Kumar Gupta (supra) as also K.N. Khanna (supra) do not refer to Section 8 of the Partition Act, and which Section in so many words clearly provides that once there is an order for sale of the property (and which order of the sale is because and when no partition by metes and bounds can take place), then such an order will be a decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908 (CPC). Supreme Court in the judgment in the case of N. Bhargavan Pillai (dead) by LRs. and Another Vs. State of Kerala, (2004) 13 SCC 217, has held that a judgment rendered by a Court without referring to the direct provision of law would not be a binding precedent. This judgment of the Supreme Court in the case of N. Bhargavan Pillai (supra) was thereafter followed by the Supreme Court in the case of Mayuram Subramanian Srinavasan Vs. C.B.I. (2006) 5 SCC 752. The judgments of the Division Benches of this Court in the cases of Sushil Kumar Gupta (supra) and K.N. Khanna (supra) may possibly not be binding precedents as they do not refer to Section 8 of the Partition Act. 6.(i) The order passed for sale of the property in law will be treated as a final decree because partition is taking place by ordering the sale of the property. Such an order directing sale results in partitioning the value of the property in terms of the sale proceeds which is received on selling of the property i.e by dividing the net sale proceeds as per the shares of the parties fixed as per the preliminary decree passed. Sale of the property will take place in execution proceedings of the final decree.
(ii) Partition in law is thus effected by two modes, one by physical partition by metes and bounds and second by partitioning the net sale proceeds. In this regard it bears note that as per Section 2(15) of the Stamp Act, 1899 a final order giving effect to a partition by a civil court is to be taken as an instrument of partition, and therefore when partition by metes and bounds is not to be done then the order of sale thus becomes a final order for effecting partition by partitioning the sale proceeds vide Section 8 of the Partition Act read with Section 2(15) of the Stamp Act. This decree directing sale being an instrument of partition in terms of the language of Section 2(15) of the Stamp Act has to be stamped as per duty payable on a document effecting partition in terms of Entry 45 of the Schedule of the Stamp Act and which Entry 45 makes cross-reference to Section 2(15) of the Stamp Act. Section 2(15) of the Stamp Act does not equate a final order of partition only as being an order of partition by metes and bounds because as per the language of this provision an instrument of partition is a wide expression of ''for final order for effecting a partition". For the sake of reference Section 2(15) of the Stamp Act reads as under:- Section 2(15) “Instrument of partition‖ means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue-authority or any Civil Court and an award by an arbitrator directing a partition; (underlining added)
7. Section 8 of the Partition Act is a Section which is a successor Section to the earlier Sections 2 to 7 of the Partition Act and which earlier sections provide for the procedure, a right of preemption etc in case of sale of a property of which partition is sought. Therefore, the successor Section 8 of the Partition Act, provides that an order of sale when made will be an order which will be a decree under Section 2(2) CPC i.e the order for sale will be a final decree of partition.
8. In any partition suit where partition is sought, then to seek partition in the real sense is not to physically divide an immovable property, but partitioning is actually to give the monetary value of the share which a person has in the property sought to be partitioned. This is because a physical partition may result in a physical area in percentage share being given as per the percentage share of a person, but the physical area so given on partitioning the property may not be necessarily equal to the monetary value of the share percentage of a person in a property. For example if a plot of 400 sq. yards is divided in four parts with two parts of 100 sq. yards each in front and two parts of 100 sq. yards each at the back then the monetary value of the 100 sq. yards at the back side of the plot will not be equal to the monetary value of the 100 sq. yards at the front though physically the area of all the four parts is the same of 100 sq. yards. Further in most of the cases these days it is also found that the properties are old properties built only upto certain floors, but now since the construction FAR stands increased by allowing properties to be built on plots upto four floors in addition to a basement besides stilt parking, by physically partitioning an existing limited construction will not result in a person getting the monetary value of his share. In bigger plots larger FAR translates to larger number of flats which can be constructed. Therefore, physical partition by metes and bounds is really not the method in a vast number of the cases so as to give a person his actual monetary value share in the property as per his percentage share in the property of which partition is sought. 9.(i) Order XX Rule 18 CPC envisages passing of a decree in a partition suit, both a preliminary decree and final decree, and this provision reads as under:- “18. Decree in Suit for partition of property or separate possession of a share therein.- Where the court passes a decree for the partition of property or for the separate possession of a share therein, then,— (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54; (2) if and in so far as such decree relates to any other immovable property or to movable property, the court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.‖ (underlining added)
(ii) A reading of the underlined portions of Order XX Rule 18 shows that a decree for partition is not equated to a decree for partition by metes and bounds i.e a decree for partition is a larger expression than the expression of partition by metes and bounds. A reading of the aforesaid provision also shows that a preliminary decree declares the rights i.e shares of the parties in the property or properties which are sought to be partitioned and that when the property is ordered thereafter to be sold, then the final step is that the net proceeds of sale are divided as per the preliminary decree declaring the shares of the parties in the property or properties which are the subject matter of the suit for partition. Therefore, when this provision of Order XX Rule 18 CPC is read with Section 8 of the Partition Act, and which Section 8 of the Partition Act states that an order directing sale is a decree, obviously in the scheme of the aforesaid provisions of the Partition Act, Stamp Act and CPC, such an order for sale of the property is after it is held that the property is not capable of being partitioned physically by metes and bounds to satisfy the shares of the parties. A preliminary decree hence only declares the shares of the parties in an immovable property or properties which is/are the subject matter of the suit for partition and an order thereafter passed directing a sale has to take place, this order then is a final decree. Any further steps thereafter for sale of the immovable property can only be taken in execution proceedings of the final decree which is drawn up in view of Section 8 of the Partition Act ordering that the property has to be sold.
10. In view of the aforesaid discussion, and since the Division Bench judgments of this Court in the cases of Sushil Kumar Gupta (supra) as also K.N. Khanna (supra) do not refer to Section 8 of the Partition Act, accordingly, let the present order and the present case file be put up before Hon’ble the Acting Chief Justice to constitute a Full Bench so that the non-reference of Section 8 of the Partition Act in the judgments in the cases of Sushil Kumar Gupta (supra) as also K.N. Khanna (supra) thereby possibly affecting their bindingness can be decided with the necessary concomitant question to be decided that whether proceedings for sale of the property can take place only in the execution proceedings of a final decree passed as per Section 8 of the Partition Act or that proceedings for the sale of the property are also proceedings prior to passing of a final decree in the suit. These issues acquire importance in view of the fact that Government revenue is involved in preparation of a final decree which is taken as an instrument of partition as per Section 2(15) of the Stamp Act. At the risk of repetition it is stated that the issue to be decided by the Full Bench would be as to whether a preliminary decree only decides the shares of the parties in the property or properties sought to be partitioned or that even after declaring shares of the parties as per a preliminary decree under Order XX Rule 18 CPC, whether the further steps taken after passing of such preliminary decree as regards the sale of the property/properties, whether would such steps be steps only prior to a final decree.
11. List before Full Bench, after obtaining orders of Hon’ble the Acting Chief Justice, on 19th January, 2018.
NOVEMBER 27, 2017 VALMIKI J. MEHTA, J AK