Nirmal Kumar Jain vs Sukhdev Kumar Jain and Others

Shiv Narayan Dhingra, J.—In this suit for partition, it was held by the Court that both plaintiff and defendant had equal shares in the property. Thereafter, an architect was appointed to explore the possibility of division of the property by metes and bounds. The fee of the architect was shared by both the parties and a final decree came to be passed vide order dated 9th April, 2008 after the parties had agreed, as to how the property was to be divided by metes and bounds. There were two suits and both the suits were decreed in terms of the settlement arrived at between the parties for division of the properties by metes and bounds. The Court directed for preparation of final decree in accordance with this division as agreed between the parties.

The plaintiff made an application for deposit of necessary non judicial stamp papers for preparation of final decree of partition by both the parties in accordance with their shares however, the Counsel for defendant has raised an issue that since the parties had agreed to a mutual settlement, no stamp duty was required to be paid for preparation of final decree. He has relied on an order dated 4th May, 2006 passed by this Court in IA No. 5014/2006 in CS(OS) No. 134/2005. A perusal of this order show that no decree for partition of the property was passed on the basis of mutual settlement rather the suit was disposed of in view of agreement between the parties, the office note requiring parties to pay stamp duty on settlement was considered not justified for this reason. I consider that this order relied on by the defendant is not applicable in this case. This Court in CS(OS) No. 826/2005 on 2nd July, 2007 had discussed this issue in detail and had came to the conclusion that the parties were bound to pay the stamp duty as required to be affixed on a final decree for partition. Similar is the observation made by the Supreme Court in Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande and Anr. (1995) 3 SSC 413 wherein Supreme Court observed as under:

"x x x Therefore, executing court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20, Rule 18(2). After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped paper(s), it becomes executable or becomes an instrument duly stamped. Thus, condition precedent is to draw up a final decree and then to engross it on stamp paper(s) of required value. These two acts together constitute final decree, crystallizing the rights of the parties in terms of the preliminary decree. Till then, there is no executable decree as envisaged in Order 20, Rule 18(2), attracting residuary Article 182 of the Old Limitation Act....

I, therefore consider that the parties are bound to deposit nonjudicial stamp paper(s) of appropriate value for drawing final decree and unless the stamp paper are not deposited by the parties, the final decree cannot be drawn.