Delhi District Court
Presently At vs Smt. Nita Abbot on 13 November, 2018
Gita Marwaha V. Nita Abbot & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 398/2015
UNIQUE CASE ID NO.: 609683/2016
Smt. Gita Marwaha
W/o Mr. Sripal Marwaha
R/o Frisers VEJ 6ST TH
2920, Charlotten Lund,
Denmark.
Presently at
C4/F63 (FF),
Janakpuri, New Delhi. .... Plaintiff
VERSUS
1.Smt. Nita Abbot W/o Sh. Navin Abbot, R/o A4/101, Printer Apartment, Sector13, Rohini, Delhi85.
2. Shri R.S. Berry (Deceased) Through his L.Rs.
i) Alan
S/o Shri R.S. Berry
ii) Ms. Ieces
D/o Shri R.S. Berry
Suit No. 398/2015 Page 1 of 14
Gita Marwaha V. Nita Abbot & Ors.
Residents of:
Neptunu 425, SM 38
Cancun, C.P. 77500
Quintana Roo, Mexico
3. Sh. Gaurav Abbot
S/o Shri Navin Abbot
R/o A4/101, Printer Apartment,
Sector13, Rohini,
Delhi110085. .... Defendants
Date of Institution : 29.07.2006
Date when the case reserved for order : 12.11.2018 Date of Order : 13.11.2018 J U D G M E N T The present suit for partition, declaration and injunction was filed by the plaintiff against the defendants and preliminary decree was passed by means of judgment dated 23.01.2014, whereby the plaintiff and defendants no. 1 & 2 were respectively declared 1/3rd shareholders in respect of the property bearing no. 89A, Pocket U & V, B Block, Shalimar Bagh, Delhi (MIG Flat) and the matter was fixed for suggesting the modes of partition in terms of decree.
As per the observation dated 20/02/2014, the Ld. Predecessor of this Court had opined that the suit property is a two Suit No. 398/2015 Page 2 of 14 Gita Marwaha V. Nita Abbot & Ors.
bed room MIG flat and cannot be partitioned amongst three parties. The parties are not able to suggest any mode of partition. It is further observed that only means available to partition the property was by way of sale of property. The Ld. Predecessor of this Court had even appointed the Court Auctioneer Sh. Jitender Kumar Sharma for auction of the suit property and the time was fixed for auction. However, further proceedings could not be done as the matter was pending before the Hon'ble High Court challenging the preliminary judgment and decree 23/01/2014.
Vide order dated 10/01/2017, the Hon'ble High Court has modified the interim order dated 08/05/2014 and the plaintiff was given liberty to seek the execution of preliminary decree. Thereafter, the RFAs were dismissed by the Hon'ble High Court vide order dated 15/09/2017.
There is no dispute amongst the parties which is also mentioned by repeated orders that the property cannot be divided by metes and bounds as it is a very small flat of 2 bed room and there are three parties who were declared as 1/3 rd shareholders for the suit property. The principles of the auction sale are as under: PRINCIPLES OF AUCTION SALE Section 2 of the Partition Act, 1893 is reproduced as under: "2. Power to court to order sale instead of division in partition suits Suit No. 398/2015 Page 3 of 14 Gita Marwaha V. Nita Abbot & Ors.
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 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."
The Full Bench of Hon'ble High Court of Delhi has recently dealt the issue of Sale of the property in Partition in Case bearing O. REF. 2/2018 IN CS(OS) 1098/2005 titled as Indu Singh and Anr. Versus Prem Chaudhary and Ors. decided on 11.05.2018. The para Nos.4 to 6 of the said Judgment is reproduced herein: "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 could sale take place of the joint properties because Suit No. 398/2015 Page 4 of 14 Gita Marwaha V. Nita Abbot & Ors.
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 equalisation) then in such a scenario the joint property could be sold. I may note that owelty means that when by physical partition a coowner 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 property/properties. Owelty principle is thus an equalisation 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 Suit No. 398/2015 Page 5 of 14 Gita Marwaha V. Nita Abbot & Ors.
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 coowner as per his share 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 SubRule (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 Suit No. 398/2015 Page 6 of 14 Gita Marwaha V. Nita Abbot & Ors.
properties, it is the provision of SubRule (2) of Order XX Rule 18 which applies.
"(iii) As per Order XX Rule 18 SubRule (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, SubRule (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 properties which are subject matter of SubRule (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 Suit No. 398/2015 Page 7 of 14 Gita Marwaha V. Nita Abbot & Ors.
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 SubRule (1) or under SubRule (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 coowner/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 SubRule (1), and this SubRule (1) of Order XXVI Rule 14 will apply to partition of the properties which are subject matter of both SubRule (1) and SubRule (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 SubRule (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 SubRule (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 Suit No. 398/2015 Page 8 of 14 Gita Marwaha V. Nita Abbot & Ors.
SubRule (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 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 SubRule (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 SubRule (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 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 Suit No. 398/2015 Page 9 of 14 Gita Marwaha V. Nita Abbot & Ors.
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 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 coowner/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 Suit No. 398/2015 Page 10 of 14 Gita Marwaha V. Nita Abbot & Ors.
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 coowner 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 coowners can buy out the other coowner/coowners i.e. rights of preemption.
"(iv) Therefore in my opinion the words as found in the last line of SubRule (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.
I have perused the file. The size of the property in question is so small that it is not feasible to divide the property by metes and bounds. Considering the number of parties and size of the plot, the only mode which is available under the law is to auction the property in question or to invoke Section3 of the Partition Act, 1893. However, the final decree is required to be passed before invoking Section3 of the Partition Act, 1893. The final decree is required to be engrossed upon the NonJudicial stamp paper, as has been dealt by the Hon'ble High Court in the aforesaid Judgment and the relevant operative portion of the said judgment is reproduced as under: Suit No. 398/2015 Page 11 of 14 Gita Marwaha V. Nita Abbot & Ors.
"ORDER OF THE FULL BENCH (Per majority, R.K. Gauba, J, dissenting):
"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 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 v. 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 Accordingly, considering the facts & circumstances of the present case, the following Suit No. 398/2015 Page 12 of 14 Gita Marwaha V. Nita Abbot & Ors.
FINAL ORDER (A) The suit property bearing flat no. 89A, Pocket U & V, B Block, Shalimar Bagh, Delhi (MIG Flat) shall be sold out in auction and the auction amount, after deducting necessary expenses, shall be distributed to the parties, as per their respective share passed in the preliminary judgment and decree dated 23/01/2014. The parties are, however, at liberty to invoke Section 3 of the Partition Act at the time of execution of the Final Decree. (B) The Final decree in this case is required to be engrossed upon nonjudicial 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 the 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(s) 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(s) shall be recoverable as a cost and the auction amount of the defaulting party(s) shall be reduced accordingly against the said cost and shall be paid to the party who had borne the expenses of defaulting party.
Suit No. 398/2015 Page 13 of 14Gita Marwaha V. Nita Abbot & Ors.
(D) Parties are restrained to represent themselves as owners of the suit property or to sell the suit property or to create any third party interest in terms of the preliminary decree dated 23/01/2014.
Accordingly, the Final Decree is drawn upon only on the submission of the requisite Stamp papers.
Decreesheet be prepared accordingly in terms of the this judgment.
File be consigned to record room after due compliance. Announced in the open court on this 13th Day of November, 2018.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit No. 398/2015 Page 14 of 14