[Decided on 21/09/2012]
Indian Stamp Act,1899 – Article 45 read with Section 2(15) – partition suit- shares are determined – stamp duty there on – whether passing of a final decree is required – Held, Yes.
This suit was compromised and the compromise was recorded on 16.11.2005. Rights of the parties in various properties were decided. Defendants had to pay a particular amount to the plaintiff. The issue was whether a final decree has to be passed for the purpose of payment of stamp duty.
Decision: Appeal allowed.
Decision & Reason
In a partition suit once shares are determined and there is an order that properties have to be sold, in law, a final decree has to be passed in as much as, government revenue in the form of stamp duty has to be deposited in terms of Article 45 of the Stamp Act, 1899 read with Section 2(15) of the said Act, as per which, a decree of a Court for partition would be included in the expression instrument of partition. This was considered in the aspect of the judgment titled as Ashok Kumar Arora v. Om Prakash & Ors. in CS (OS) 541/2003 dated 3.9.2012. It has been held by the learned Single Judge of this Court in the case of Must. Shahabia Begum v. Must. Pukhraj Begum & Ors. AIR 1973 Delhi 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. In view of the above, the suit is disposed of by confirming the order dated 16.11.2005 declaring the shares of the parties as also the other directions containing therein. It is directed that physical partition cannot take place and the sale/purchase will take place in terms of the order dated 16.11.2005. Any issue with regard to the sale of the properties and valuation, if any, will be decided in execution proceedings. Since various orders have also been passed after 16.11.2005, although, a final decree was to be passed at that stage, any of the parties to the present suit can take benefit of the orders passed after 16.11.2005, to the extent the same are necessary for effectuating the order dated 16.11.2005. The suit is disposed of in terms of the aforesaid observations.