Sh. Satpal vs Sh.
Yashpal on 21 March, 2022
Sh. Satpal vs Sh. Yashpal on 21 March, 2022
IN THE COURT OF SH. MANISH SHARMA ADDITIONAL
DISTRICT JUDGE− 01, WEST DISTRICT, TIS HAZARI
COURTS,DELHI
CS No. 9005/16
In the matter of:
Sh. Satpal
S/o late Sh. Chaman Lal
R/o A−11, Vikas Nagar, Phase−III
Uttam Nagar in front of Rajdhani Public School
Delhi ........Plaintiff
Versus
Sh. Yashpal
S/o Late Sh. Chaman Lal
R/o A−11, Vikas Nagar, Phase−III
Uttam Nagar in front of Rajdhani Public School
Delhi ......Defendant
SUIT FOR PARTITION
Date of institution of suit : 24.07.2014
Date on which judgment reserved : 21.03.2022
Date on which judgment pronounced : 21.03.2022
Suit No.9005/16 Satpal Vs. Yashpal 1/11
JUDGMENT
1. Plaintiff has filed the instant suit for partition against the defendant, who is his brother. Vide
judgment dated 30.01.2020 and decree dt. 25.11.2020, a preliminary decree was passed by Ld.
Predecessor of this Court, wherein it was held that plaintiff is entitled to 1/8th share and defendant
is entitled to 7/8 th share in the suit property bearing no. A−11, Vikas Nagar, Phase−III, Uttam
Nagar, in front of Rajdhani Public School, Delhi. (in short 'the suit property').
2. Plaintiff's case, as set out in the Plaint, is as follows:
It is averred in the suit that property bearing no. A−11, Vikas Nagar, Phase−3, Uttam
Nagar, in front of Rajdhani Public School, Delhi (in short the Suit Property) was
owned by late Sh.Chaman Lal, father of parties.
It is further averred that the father of the parties Late Suit No.9005/16 Satpal Vs.
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Sh. Satpal vs Sh. Yashpal on 21 March, 2022
Yashpal 2/11 Sh.Chaman Lal expired intestate in 2003 and mother of parties Late
Smt. Krishna Devi expired in 2010. It is averred that apart from parties to the suit,
late Sh. Chaman Lal was having five daughters but since they all are married, they do
not have any claim in the suit property. Therefore, they have not been made parties in
the suit.
It is averred that an oral demand was made to defendant for partition of suit property
but he had refused for the same. Accordingly, a prayer was made for partition of the
suit property.
3. The facts stated in the written statement may be taken into note of:
Defendant in his written statement had taken preliminary objections that the suit
filed by plaintiff is not maintainable as the previous case bearing no. 86/10 for Suit
No.9005/16 Satpal Vs. Yashpal 3/11 partition filed by plaintiff against defendant has
been dismissed on 25.03.2011. The maintainability of the suit was further objected to
on the ground of plaintiff having no right, title or interest in the suit property as he
had taken his share in the year 1992 and documents like affidavit were also executed
by plaintiff in this regard.
It was further objected to on the ground that five sisters of plaintiff and defendant,
after the death of late Sh.Chaman Lal, had executed a relinquishment deed with
regard to their respective shares in the suit property in favour of Late Smt.
Krishnawanti, mother of parties vide registered relinquishment deed dated
01.06.2010 and thereafter, late Smt. Krishnawanti executed a registered Will dated
17.01.2011 in favour of defendant, on the basis of which he became the exclusive
owner of the suit property. Lastly, Suit No.9005/16 Satpal Vs. Yashpal 4/11
maintainability of the suit was challenged on the ground of non−joinder of parties i.e.
five sisters of the parties.
On merits, it was submitted that since plaintiff is not having any right in the suit property, therefore,
he is not entitled to any partition. Accordingly, a prayer was made to dismiss the suit.
4. Replication :
Plaintiff filed replication to the written statement of defendant wherein he has
reiterated and reaffirmed the contents of the plaint as true and correct and denied the
averments made in the written statement.
5. The issues framed on 06.05.2015 are as follows :
(i) Whether another suit for partition was filed by the plaintiff against the defendant
which was dismissed? If so, its effect? OPD
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Sh. Satpal vs Sh. Yashpal on 21 March, 2022
(ii) Whether the suit of the plaintiff is bad for non−joinder of necessary parties? OPD
Suit No.9005/16 Satpal Vs. Yashpal 5/11
(iii)Whether the plaintiff has already received his share in the property in question?
OPD
(iv)Whether the plaintiff is entitled for partition of the suit property as claimed? OPP
(v) Relief.
Thereafter, the matter was posted for plaintiff's evidence.
6. In his evidence, plaintiff had examined himself as PW1 and he had deposed all the facts on oath,
as stated in the plaint. No other witness was examined on behalf of plaintiff. Accordingly, the
plaintiff's evidence was closed. Thereafter, the matter was posted for defence evidence.
7. Per contra, defendant examined himself as DW1 and relied upon the following documents:
(i) Copy of death certificate of late Sh. Chaman Lal Mark A
(ii) Affidavit of plaintiff Ex.PW1/D1 Suit No.9005/16 Satpal Vs. Yashpal 6/11
(iii) Receipt of Rs.15,000/− executed by plaintiff Ex.PW1/D2
(iv) Copy of relinquishment deed Mark C. No other witness was examined on behalf
of defendant.
Accordingly, the defence evidence was closed. Thereafter, the matter was listed for final arguments.
8. Preliminary decree dt 30.01.2020 was passed to the effect of granting 1/8th share to plaintiff and
defendant is entitled to 7/8th share in the suit property bearing no. A−11, Vikas Nagar, Phase−III,
Uttam Nagar, in front of Rajdhani Public School, Delhi. Since it is not possible to divide the property
by metes and bounds and none has come forward to purchase the suit property. The only option left
is to auction the suit property and divide the sale proceed amongst the stakeholders.
9. Section 2 of The Partition Act 1893, provides that if the Court comes to the conclusion that the
suit property cannot be partitioned by metes and bounds or the division of the property Suit
No.9005/16 Satpal Vs. Yashpal 7/11 cannot be conveniently made and sale of the property and
distribution of the proceeds would be beneficial for all share holders, the Court can direct sale of the
suit property and distribute the proceeds amongst the stake holders.
10. In the present scenario, the most plausible mode available under the law is to auction the
property in question or to invoke Section 3 of the Partition Act 1893. None of the parties have
offered to purchase the Suit Property as per section 3 of Partition of Act,1893. In such an
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Sh. Satpal vs Sh. Yashpal on 21 March, 2022
eventuality, the most appropriate method is to auction the suit property and distribute the sale
proceeds equally amongst the stake holders after deducting the expenses.
11. Hon'ble Delhi High Court has considered the issue of the sale of the property in a suit for
partition in case bearing no. O .Ref. 2/2018 in CS (OS) 1098/2005 titled as Indu Singh Vs. Prem
Chaudhary and Ors decided on 11.05.2018.
12. In the aforesaid judgment, it was held that final decree of Suit No.9005/16 Satpal Vs. Yashpal
8/11 sale as passed in Suit for partition is required to be engrossed upon the Non−judicial stamp
papers. The operative portion of the judgment as passed by the Hon'ble High Court is being
reproduced as under:
ORDER OF THE FULL BENCH (Per majority, R.K. Gauba, J, dissenting):
1. An order of sale passed under Section 8 of the Partition Act is a final decree in a
partition suit, and all proceedings to− wards sale of the property which is subject
matter of the fi− nal decree of partition, have to take place in execution pro− ceedings
of this final decree.
2. An order of sale in a partition suit passed under Section 8 of the Partition Act is an
instrument of Partition under Section 2(15) of the Stamp Act and requires to be
stamped in accor− dance with Article 45 of the Schedule thereof.
3. The judgments of this Court in the cases of K.N. Khanna 2000 (55) DRJ 544: 2000
(87) DLT 286 (DB) and Sushil Kumar Gupta v. Smt. Prem Gupta and Ors. 2013 (135)
DRJ 341 (DB) are thereby overruled.
Suit No.9005/16 Satpal Vs. Yashpal 9/11
13. In view of the above discussion, the following order is passed:
(i) The suit property bearing no. A−11, Vikas Nagar, Phase−III, Uttam Nagar, in front
of Rajdhani Public School, Delhi shall be sold out in auction and the auction amount,
after deducting necessary expenses, shall be distributed amongst the parties in
proportion of the ratio of their share i.e. 1/8th share of the plaintiff and 7/8th share
of the defendant as determined in the preliminary decree dated 25.11.2020 and
directions passed in the judgment dated 21.03.2022.
(ii) The final decree being an instrument of partition under Section 2 (15) of the
Stamp Act and therefore Final Decree is to be stamped in accordance with Article 45
of the Schedule thereof. The parties are directed to place on record the non− judicial
stamp paper of requisite amount as per Article 45 of the Suit No.9005/16 Satpal Vs.
Yashpal 10/11 Stamp Act in accordance with their share.
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Sh. Satpal vs Sh. Yashpal on 21 March, 2022
(iii) In the event of the fact that if a party or any of the parties fails to deposit the
non−judicial stamp paper in respect of their respective share, then the other party is
at liberty to file the non− judicial stamp paper of the value for such party, the amount
so spent by a party shall be recoverable as a cost and sale amount qua the share of the
defaulting party shall be reduced and shall be paid to the party who had borne the
expenses of the defaulting party.
(iv) It is directed that final decree sheet be drawn upon submission of the requisite
stamp papers. It is further directed that decree sheet be prepared in terms of
preliminary decree dated 25.11.2020 and directions passed in the judgment dated
21.03.2022.
File be consigned to record room after due compliance.Digitally signed by MANISH MANISH
SHARMA Announced in the Open court SHARMA Date: 2022.03.31 (Manish Sharma) 10:28:41
+0530 Dated : 21.03.2022 ADJ −01/THC/West/Delhi Suit No.9005/16 Satpal Vs. Yashpal 11/11
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