Arvind Aggarwal vs Chandan Aggarwal & Anr.

By way of present Application, the applicant/plaintiff seeks recall of the Order dated 02.05.2024 thereby restoring I.A. 9745/2024.

It is submitted in the application that I.A. 9745/2024 under Section 151 of the Code of Civil Procedure, 1908 was filed on 20.04.2024, however, the Registry raised certain defects. After removal of defects, the said Application was filed on 27.04.2024.

It is further submitted that during the follow up with the Registry regarding the listing of the said application, the Registry informed that the said Application would get listed on 06.05.2024, however, it got listed on 02.05.2024 before this Court. Therefore, due to miscommunication, the counsel could not appear on the said date and the said application was dismissed in default vide Order dated 02.05.2024.

Therefore, a prayer is made that the Order dated 02.05.2024 be recalled.

Submissions heard.

Considering the submissions made, the present application is allowed and the I.A. 9745/2024 under Section 151 of the Code of Civil Procedure, 1908 is hereby restored to its original number.

The application is disposed of.

The present Application under Section 151 of the Code of Civil Procedure, 1908, has been filed on behalf of the plaintiff.

The plaintiff has submitted that the parties had arrived at a Settlement Agreement dated 15.05.2019 in the Delhi High Court Mediation and Conciliation Centre and the Suit was decreed vide Order dated 27.05.2019. The matter is still pending for the preparation of the decree sheet for want of Valuation Report of the properties, to assess non judicial stamp duty payable on the deed of partition. It is submitted that as per the Settlement Agreement dated 15.05.2019, the properties were partitioned between the parties as under:-

It is submitted that it is abundantly evident from the Order dated 22.03.2024, passed by this Court that there is no partition inter se the parties for New Friends Colony property, which they have agreed to sell jointly and also in respect of Ashoka Estate, which they have agreed to retain in their joint names. Therefore, the partition has been effected only in respect of the Farm House No. 7, Central Drive, DLF Chhatarpur, New Delhi, as stated above. It is, therefore, submitted that there is no requirement of valuation of the properties at New Friends Colony and at Ashoka Estate, therefore, the decree sheet be directed to be drawn, in terms of the Order of the High Court dated 27.05.2019, only in respect of the Chhatarpur, New Delhi and discharge the revenue authority from furnishing the Valuation Report in respect of the New Friends Colony and Barakhamba Road property.

In support of his contention, the plaintiff has relied upon The Controller of Estate Duty, Gujarat vs. Shri Kantilal Trikamlal, 1976 AIR (SC) 1935 and Vineeta Sharma vs. Rakesh Sharma & Ors., 2020 (8) JT 63, to argue that the partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharers had an antecedent title, and therefore, no conveyance is involved in the process, as a conferment of a new title is not necessary. It has been further observed that under the ordinary Hindu Law, a partition involves no conveyance and no question of transfer arises for all that happens on partition is only a severance in status and the common holding of property by the coparcener is converted into a separate title of each coparcener as tenant-in-common. In Vineeta Sharma (supra), it has been observed that the partition becomes final only on the passing of final decree.

Submissions heard.

The Suit for Partition had been filed by the plaintiff seeking Partition of three properties namely the Chhatarpur Farm, the New Friends Colony Property and the Barakhamba property. The Suit has been disposed of in terms of the Settlement Agreement dated 15.05.2019. The perusal of the Settlement Agreement shows that in fact, the Partition has been done only of the Chhatarpur property while in respect of the other two properties, the parties have only arrived at a settlement for its subsequent division in the manner which has been agreed in the Settlement. The terms of the Settlement, therefore, make it evident that insofar as the Ashoka Estate, Barakhamba and the New Friends Colony Property, are concerned, it is only a Memorandum of Settlement for the partition/division to be effected in future and therefore, no stamp duty is required to be paid in respect of these two properties which would become payable on the execution of requisite documents by the parties.

It is, therefore, directed that the stamp duty be taken in respect of the Chhatarpur Property and the Decree Sheet be prepared accordingly.

The application is accordingly disposed of.