Delhi District Court
Mool Chand vs R.K. Dhall on 24 May, 2025
IN THE COURT OF SH. AAKASH SHARMA: CIVIL JUDGE -02
(CENTRAL), TIS HAZARI COURTS, DELHI.
Old No.126/2016
CS No. 95284/2016
In the matter of: -
SH. MOOL CHAND DHALL (Since deceased through LRs),
1) SH. SATISH DHALL (Son)
S/o Late Sh. Mool Chand Dhall
(deceased to be represented through his legal representative)
Smt. Seema Dhall,
W/o Late Sh. Satish Dhall,
R/o A-38, Preet Vihar, Delhi.
Presently at: Flat No.3052, tower-3,
ATS Pristine, Sector-150, Noida-201210.
2) SH. MADAN KISHORE DHALL (Son)
R/o A-38, Preet Vihar, Delhi.
Presently at: Flat No.3052, Tower-3,
ATS Pristine, Sector-150, Noida-201210.
3) SH. ASHOK DHALL (Son)
R/o 46, Shanti Vihar, Delhi
4) SMT. PREM BHUTTAN (Daughter)
W/o of Sh. M.L. Bhuttan,
R/o B-65, Preet Vihar, Delhi
5) SMT. LALITA THAPAR (Daughter)
W/o Sh. J.M. Thapar,
R/o B-24, Pushpanjali, Delhi-110092
6) SMT. USHA SACHDEVA (Daughter)
W/o Sh. Gopal Sachdeva
R/o Geetanjali Apartments, Karkardooma, Delhi
Digitally
CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 1 of 19 signed by
AAKASH
AAKASH SHARMA
SHARMA Date:
2025.05.24
12:50:04
+0530
.........Plaintiffs
VERSUS
1) SH. R.K. DHALL (since deceased through LRs.)
a) SH. MANMOHAN DHALL,
S/o Late Sh. R.K. Dhall,
R/o 394, Chatta Lal Mian,
Darya Ganj, New Delhi-110002
b) SH. DEVENDER KUMAR,
S/o Late Sh. R.K. Dhall,
R/o B-33, Sector-23. Noida
c) SMT. NEELAM KUMARI,
Widow of Late Sh. R.K. Dhall,
R/o B-33, Sector-23. Noida
d) SMT. RANJANA KUMARI,
D/o of Late Sh. R.K. Dhall,
R/o 75-C, DDA Flats, Masjid Moth,
Near Chirag Delhi, New Delhi
2) SH. J.N. DHALL (since deceased through LRs.)
a) MS. NEERU DHALL,
D/o Late Sh. J.N. Dhall,
R/o D-118, East of Kailash,
New Delhi-110065
also at: 14, Ground Floor, Pocket-2,
Jasola, Delhi-1110025
b) MRS. MADHU DHALL,
W/o Late Sh. J.N. Dhall,
R/o D-118, East of Kailash,
New Delhi-110065
Page 2 of 19
Digitally
CS No. 95284/2016 Mool Chand Vs. R.K. Dhall signed by
AAKASH
AAKASH SHARMA
SHARMA Date:
2025.05.24
12:50:09
+0530
c) MRS. NEENA DHALL,
D/o Late Sh. J.N. Dhall,
R/o D-118, East of Kailash,
New Delhi-110065
d) MRS. PREETI DHAM,
D/o Late Sh. J.N. Dhall,
R/o 858, Sector-21, Gurugram
e) SH. PRAVEEN DHALL,
S/o Late Sh. J.N. Dhall,
R/o D-118, East of Kailash,
New Delhi-110065
.....Defendants
Date of Institution: 16.08.1982
Date of reserving the judgment: 03.05.2025
Date of Judgment: 24.05.2025
Final Judgment: Suit Decreed
JUDGMENT/FINAL DECREE
(SUIT FOR PARTITION)
1.The plaintiff had filed the present suit for partition against the defendants no.1 and 2. The plaintiff, defendant no.1 and defendant no.2 had jointly purchased freehold property no. 394, Chatta Lal Mian, Darya Ganj, Delhi measuring 170 Sq. Yards vide conveyance deed dated 31.05.1968 registered as document no.3394 in Addl. Book No.I, Volume No.2027 on pages 77 & 78 having equal 1/3rd undivided share each.
CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 3 of 19 Digitally
signed by
AAKASH
AAKASH SHARMA
SHARMA Date:
2025.05.24
12:50:15
+0530
2. An ex-parte preliminary decree was passed on 17.01.1983 as defendants no.1 and 2 did not appear in the court. Thereafter, on an application made on behalf of the defendants, vide order dated 17.09.1984, the ex-parte preliminary decree dated 17.01.1983 was set aside and the defendants were permitted to contest the suit. After contest, the second preliminary decree was passed vide judgment dated 24.02.2004, whereby the plaintiff and defendants no.1 and 2 were held entitled to 1/3rd share each in the suit property i.e. residential House No. 394, Chatta Lal Mian, Darya Ganj, Delhi. Sh. Kanwar Sanjay Kishan Kaul, then Advocate was appointed as Ld. Local Commissioner vide order dated 17.01.1983 to suggest the possible ways/modes of dividing the property by metes and bounds in accordance with the shares. Ld. Local Commissioner has, inter- alia, suggested in his report dated 26.07.1983 that, "upon inspection of the premises on 15.07.1983 and verifying the structure of the property w.r.t. the maps supplied by the parties, there is only single entrance to the property opening into an open courtyard with rooms on various sides on the ground and the first floors. The said property in suit is surrounded from all sides by the constructed property and there is no possibility of providing any alternative passage so that the share amounting to one third each to the plaintiff and the defendants no.1 and 2 can be provided with separate entries. There is only one staircase to the first floor. Thus, it is not possible to divide the property by metes and bounds. There has to be common entrance and the courtyard alongwith the staircase will also have to remain the common property of all the three claimants. This will not amount to CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 4 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:19 +0530 division by metes and bounds. That it is not possible to divide the property in suit into one third each by metes and bounds."
3. Thereafter, vide orders dated 30.04.2011 and 13.08.2012, the property was put to auction sale. Vide order dated 18.08.2012, auction of the suit property was directed to be made on the reserve price of the circle rate and date of auction was fixed for 16.10.2012. In the auction proceedings, defendant no.2 emerged as the highest and successful bidder for the bid of Rs.78,50,000/-. Thereafter, defendant no.2 deposited the entire sale consideration towards 2/3rd share of the suit property and deposited as sum of Rs.52,33,333/-. Vide order dated 07.06.2013, the amount of Rs.52,33,333/- was converted into an FDR in the name of Ld. Civil Judge, Central, THC, Delhi. Thereafter, vide order dated 05.06.2015, sale of the suit property in favour of defendant no.2 as auction purchaser was confirmed and the objections so raised by the objector i.e. defendant no.1 were dismissed. Vide order dated 12.10.2015, direction for issuance of sale certificate under Order 21 Rule 94 C.P.C. in favour of auction purchaser i.e. defendant no.2 was passed. On 05.04.2016, vide demand draft no.503347 drawn on Bank of India, East of Kailash, New Delhi Branch, defendant no.2 deposited Rs.65,458/- i.e. 1/3rd amount of the commission payable to the court auctioneer in terms of the directions passed vide order dated 08.12.2015 whereby commission was fixed at Rs.1,57,100/- and remaining 2/3rd amount of the commission of the court auctioneer was to be adjusted from the fixed deposit already deposited in CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 5 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:22 +0530 the court. However, issuance of sale certificate under Order 21 Rule 94 C.P.C. was kept in abeyance by the Ld. Predecessor of this Court keeping in mind that matter was in appeal. Vide order dated 28.03.2025 passed by the Hon'ble Delhi High Court in CM(M) 905/2023, it was observed therein by the Hon'ble Delhi High Court that all the parties have given their no objection to the proposed re-auction of the property and it was observed in para no. 6 of the order that "since everybody seems to be on board, the pendency of the petition would not come in the way of the Ld. Trial Court in deciding such aspect regarding re-auction on the NDOH which is stated to be 03.04.2025." Since all the parties gave their no objection to proposed re-auction/sale of the suit property, the original FDR for sum Rs.52,33,333/- which was deposited on behalf of auction purchaser/defendant no.2 was directed to be released to the LRrs of deceased defendant no.2 vide order dated 03.05.2025. Matter was thereafter fixed for judgment/passing final decree as all the parties had given their no objection to proposed re-auction/sale of the suit property.
4. The principles of the auction sale are as under:-
PRINCIPLES OF AUCTION SALE Section 2 of the Partition Act, 1893:-
"2. Power to court to order sale instead of division in partition suits-Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that by reason of Digitally signed by Page 6 of 19 AAKASH CS No. 95284/2016 Mool Chand Vs. R.K. Dhall AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:26 +0530 the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds."
5. The Full Bench of Hon'ble High Court of Delhi has dealt with the issue of Sale of the property in Partition Suits in the case of 'Indu Singh and Anr. Versus Prem Chaudhary and Ors.' bearing O. REF. 2/2018 IN CS(OS) 1098/2005 decided on 11.05.2018. The relevant para Nos.4 to 6 of the said Judgment are reproduced as under:
"4(i). The meaning of partition, in one more sense, is to give a person his monetary value of the share in the joint properties. Before passing of the Partition Act 1893, the concept of partition only meant partition by metes and bounds or physical partition of the joint properties. In many cases on account of the fact that physical partition by metes and bounds was not possible, there hence resulted a stalemate, because neither the properties could be physically partitioned by metes and bounds nor CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 7 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:30 +0530 could sale take place of the joint properties because there was no concept prevalent of partition having the effect of giving a person his monetary value share in the joint properties by selling the joint properties. Partition Act was enacted to remedy this failing. By the Partition Act it was provided for the first time that in case a joint property could not be physically partitioned by metes and bounds (including by applying the principle of owelty or equalization) then in such a scenario the joint property could be sold. I may note that owelty means that when by physical partition a co-owner gets less or more physical property than falling to as per his percentage share in a joint property, then in such a case final partition is effected by, besides physically partitioning the property, in addition also awarding a monetary amount to a person who gets a lesser share of the property on partition than the monetary value equivalent of his share. The person who gets a share which is larger than his monetary value entitlement on partition becomes liable to pay a monetary amount to a person who gets a share lesser than is his monetary value entitlement of his share in the joint CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 8 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:35 +0530 property/properties. Owelty principle is thus an equalization principle."
(ii) Enactment of the Partition Act however did not provide a complete cure because an entitlement to sell the joint property/properties was only when more than one moiety or upwards of the shareholders agree that the joint property/properties are to be sold. Moiety means 50% or a half share. Therefore in a scenario where less than 50% of the joint owner(s) wanted an order of sale, then such an order of sale could not be passed. Therefore though the bringing into force of the Partition Act did remedy some shortcoming in the position of the partition law prevailing before the passing of the Partition Act by entitling the sale of the joint property/properties, yet even after passing of this Act there still remained a failing/shortcoming in the situation where if 50% or more of the joint owners did not agree for sale then once again there was a stalemate because partition could not be effected of the joint property/properties either by physical partition by metes and bounds or by selling the joint property/properties and giving a monetary value from the sale proceeds of the joint property/properties to a co-owner as per his share CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 9 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:38 +0530 percentage in the joint property/properties. We note that there is an aspect with respect to an order of sale under the Partition Act to be deemed to be a decree in terms of Section 8 of the Partition Act, and this aspect will be adverted to in detail hereinafter inasmuch as the provision of Section 8 of the Partition Act existing in this Act is the main reason for reference to this Full Bench.
5(i). The Partition Act was passed in the year 1893 and Code of Civil Procedure was passed later in the year 1908. There are two provisions of CPC which are relevant to the issues at hand, and which are the provisions of Order XX Rule 18 and Order XXVI Rule 14. These provisions have already been reproduced above.
(ii) A reference to Order XX Rule 18 CPC shows that properties of which partition take place are of two types. First type of properties are agricultural properties i.e. those properties which pay land revenue to the Government. Qua such properties the provision of Sub-Rule (1) of Order XX Rule 18 CPC applies. Second type of properties are the properties in urban areas and with respect to partition of such properties, it is the provision of CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 10 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:43 +0530 Sub-Rule (2) of Order XX Rule 18 which applies.
(iii) As per Order XX Rule 18 Sub-Rule (1) in a suit for partition there is only one decree which is passed and the ministerial act of physical division of joint property/properties is left to the Collector or a person deputed by the Collector as is provided in Section 54 CPC. Therefore with respect to partition suits of properties paying land revenue to the Government, after a decree was passed declaring the shares of the parties, then by the same decree the Collector or a person deputed by the Collector is appointed to bring about physical division of the properties in terms of the shares declared in the decree.
(iv) So far as urban immovable properties are concerned which are not the subject matter of Sub-
Rule (1) of Order XX Rule 18 CPC, Sub-Rule (2) of Order XX Rule 18 CPC provides that where partition cannot be conveniently made without further enquiry, then first a preliminary decree is passed declaring shares/rights of the parties, and thereafter further directions as are required in the facts and circumstance of the each case are passed. Of course, even with respect to immovable CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 11 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:47 +0530 properties which are subject matter of Sub-Rule (2) of Order XX Rule 18 CPC there can be cases where it may not be required to pass first only a preliminary decree, and that in certain cases a Court can pass both a preliminary and final decree by one judgment if the properties which are subject matter of the suit for partition are such that the Court can physically divide the joint properties in terms of the shares of the joint owners.
(v) Of course, the factum of physical division of the properties, whether under Sub-Rule (1) or under Sub-Rule (2) of Order XX Rule 18 CPC, the same would also be; where facts of a case so require; by also applying the principle of owelty, because surely and in many cases partition by metes and bounds does result in a person getting that physical share of the property/properties which will be less or more than the monetary value percentage share of that co-owner/joint owner in the properties. The principle of owelty (i.e. an equalization amount) is found and clearly so specified under Order XXVI Rule 14 Sub-Rule (1), and this Sub-Rule (1) of Order XXVI Rule 14 will apply to partition of the properties which are subject matter of both Sub-Rule (1) and Sub-Rule CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 12 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:51 +0530 (2) of Order XX Rule 18 CPC.
6.(i) At this stage it will be extremely relevant to note two important aspects.
(ii) First aspect is that while Sub-Rule (2) of Order XX Rule 18 CPC provides that a court may on account of the facts and circumstances as regards the properties which are subject matter of the suit for partition, find that straightaway a final decree for partition cannot be passed giving physical shares in the joint properties to the joint owners, then therefore in such cases, the court passes only a preliminary decree declaring the shares of the parties, and that after passing of the preliminary decree, a court has; as per the last line and set of words of Sub-Rule (2) of Order XX Rule 18 CPC; powers to pass "such further directions as may be required". These words appearing at the end of the Sub-Rule (2) of Order XX Rule 18 CPC are very important and of great significance because these words in my opinion has removed the shortcoming which had still remained in spite of passing of the Partition Act as regards the situation when moiety or upwards of the shareholders did not want sale of the suit properties. With respect to properties which CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 13 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:55 +0530 were not subject matter of payment of land revenue to the government, then with respect to such properties which are subject matter of Order XX Rule 18 Sub- Rule (2) CPC, court was given intendedly the power to pass such further directions as may be required, and such a wide expression therefore in my opinion will entitle a civil court to order for sale of the joint property/properties even if moiety or upwards of the shareholders do not want sale of the joint property/properties. This language of the last few words at the end of Order XX Rule 18 Sub Rule (2) in my opinion becomes very important and relevant in today's age and date because a considerable number of immovable properties which are subject matter of suits for partition are properties which have been constructed many decades earlier and which is the next aspect which is being immediately adverted to hereinafter.
(iii) The second aspect is that over a period of time in urban areas the covered area of construction which is permissible on a plot has been steadily increasing. For example in Delhi previously on a plot ordinarily a ground floor, first floor and a barsati floor (part second floor) was only allowed to CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 14 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:50:59 +0530 be constructed. Barsati floor means that the entire second floor is not allowed to be covered but the second floor which is called as a barsati floor is allowed to be only partly covered. The municipal law thereafter changed whereby almost the entire second floor was allowed to be covered. Thereafter, the municipal law has further changed and a third floor was allowed to be constructed, besides allowing construction of a basement on a property. Now in addition to a plot having a basement and four floors, in view of the scarcity of parking of vehicles in a city like Delhi on account of the existence of unending number of vehicles, stilt parking is also permitted to be made below the ground floor and above the basement floor. Since the ultimate object and the real intention of the joint properties being partitioned is to give a person his monetary value equivalent of his percentage share in the joint property/properties, and since now additional Floor Area Ratio (FAR)/covered area permissible, therefore in old constructed properties, simply by physically dividing the existing construction the same does not result in a person getting his monetary value of his percentage share in the joint property/properties. Partition therefore CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 15 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:51:02 +0530 really in today's date and age in urban areas is a partition in terms of FAR/covered area, and once that is so, then on such FAR/covered area being available to a co-owner/joint owner then such a person may/would/could want to reconstruct for enjoying more constructed area falling to his share, and which will necessarily require bringing down the old construction and thereafter making fresh construction on the plot of basement plus four floors and stilt parking. Thus in very old constructed properties simply physically partitioning of such joint property/properties is not the answer, and the joint property/properties in many cases have necessarily to be sold so as to give a person his actual monetary share value in the joint property/properties. At this stage I would hasten to add that with respect to sale of a joint property, the entitlement of a co-owner in terms of Sections 3,4, 6 and 7 of the Partition Act come in, whereby on an order being passed of sale of a joint property, the sale is not necessarily and firstly by public auction/sale, because firstly in the sale proceedings, one or more co-owners can buy out the other co- owner/co-owners i.e. rights of pre-emption.
(iv) Therefore in my opinion the words as found in CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 16 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:51:07 +0530 the last line of Sub-Rule (2) of Order XX Rule 18 CPC would result in a position that as of today there no longer exists any gap or shortcoming or failing which would result in a stalemate if joint owner(s), having less than a 50% share, ask for his/their share by filing a suit for partition of the joint property/properties."
6. I have perused the file. The suit property in question is a freehold property no. 394, Chatta Lal Mian, Darya Ganj, Delhi measuring 170 Sq. Yards. Considering the report of the Ld. Local Commissioner and the consent of the parties, the only mode which is available under the law is to auction the property in question or to invoke Section-3 of the Partition Act, 1893. However, final decree is required to be passed before invoking Section 3 of the Partition Act, 1893. The final decree is required to be engrossed upon Non-Judicial stamp paper, as has been dealt by the Hon'ble Delhi High Court in the aforesaid Judgment and the relevant operative portion of the said judgment is reproduced as under:
"I. An order of sale passed under Section 8 of the Partition Act is a final decree in a partition suit, and all proceedings towards sale of the property which is subject matter of the final decree of partition, have to take place in execution proceedings of this final decree."
"II. An order of sale in a partition suit passed under Section 8 CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 17 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:51:11 +0530 of the Partition Act is an instrument of Partition under Section 2(15) of the Stamp Act and requires to be stamped in accordance with Article 45 of the Schedule thereof."
"III. 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 Vs. Smt. Prem Gupta and Ors. 2013 (135) DRJ 341 (DB) are hereby overruled."
Section 8 of the Partition Act, 1893 is also reproduced hereunder:
"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 1552)."
RELIEF
7. Considering the above facts & circumstances of the present case, the following final decree is passed:
(A) The suit property i.e. freehold property no. 394, Chatta Lal Mian, Darya Ganj, Delhi measuring 170 Sq. Yards shall be sold out in auction and the auction amount, after deducting necessary expenses, shall be distributed to the parties, as per their respective shares, i.e. 1/3rd each, passed in the preliminary decree dated 24.02.2004. Parties are however at liberty to buy/sell the share of other one before the date of auction of the said sale.
CS No. 95284/2016 Mool Chand Vs. R.K. Dhall Page 18 of 19 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date:
2025.05.24 12:51:15 +0530 (B) The Final decree in this case is required to be engrossed upon non-judicial papers as 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 accordance with Article 45 of the Schedule thereof. The parties are directed to place on record non judicial stamp papers of requisite amount, as per Article 45, in accordance with their shares.
(C) If one party or more than one party fails to deposit the non judicial stamp papers of their respective shares, then the other party is/are at liberty to file the non judicial stamp paper of the value of the defaulting party and the amount so spent by such party shall be recoverable as a cost and the auction amount of the defaulting party shall be reduced accordingly against the said cost and shall be paid to the party who had borne the expenses of defaulting party.
8. Accordingly, Final Decree be drawn on filing of the requisite stamp papers. Decree-sheet be prepared accordingly in terms of this judgment.
File be consigned to record room after due compliance.
Digitally signed by AAKASH AAKASH SHARMA
SHARMA Date:
2025.05.24
12:51:23 +0530
Announced in the open (Aakash Sharma)
court today on 24.05.2025 Civil Judge -02 (Central),
Tis Hazari Courts, Delhi.
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