Delhi District Court
Mst. Feroza Begum (Senior Citizen) vs Shri Mohammed Rafiq on 25 October, 2024
In the Court of Shri Naresh Kumar Laka
District Judge - 07, Central District,
Tis Hazari Courts, New Delhi
CS DJ 609775/16
CNR No. DLCT01-000015-2003
In the matter of:
Amended memo of parties
1.Mst. Feroza Begum W/o Late Mumtaz Ali
2. Hashim Ali S/o Late Mumtaz Ali
3. Irfan Ali S/o Late Mumtaz Ali
4. Ms. Najma D/o Late Mumtaz Ali W/o Mohd. Amir
5. Ms. Rehana D/o Late Mumtaz Ali
6. Ms. Shabana D/o Late Mumtaz Ali All R/o H. No. 1049, Phatak Ram Kishan Dass Bazar Chitli Qatar, Delhi-110006, ....... Plaintiffs Vs.
1) Mohd. Rafiq (deceased) Through his LRs CS DJ No. 609775/16 Page no. 1 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:29:56 +0530
i) Mohd. Yaseen S/o Late Mohd. Rafiq (since deceased) Through his LRs
a) Shamim Begum widow of Mohd. Yaseen
b) Mohd. Javed (Son)
c) Mohd. Abid (Son)
d) Mohd. Asim (Son)
e) Yasmin W/o Anees (Married Daughter)
f) Sania (Unmarried Daughter) All R/o 1049, Phatak Ram Kishan Dass, Bazaar Chitli Qabar, Delhi-110006.
ii) Mohd. Yameen S/o late Mohd. Rafiq
iii) Mohd. Ashqeen (deceased) through his LRs:-
a) Aqeela Begum Widow of Late Mohd. Ashqeen (already on record as defendant no.6)
b) Hina (Daughter)
c) Sadaf (Daughter)
d) Bushra (Daughter)
e) Rimsha (Daughter)
f) Mooes (Son) All R/o 1049, Fatak Ramkishan Dass, Bazar Chitli Qabar, Delhi-1100036.
iv) Mst. Firdos D/o late Mohd. Rafiq W/o Abdul Hamid R/o 258-B/16, Zakir Nagar, Jamia Nagar, New Delhi-25 CS DJ No. 609775/16 Page no. 2 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:30:03 +0530
v) Mst. Kausar D/o late Mohd. Rafiq W/o Mohd. Ahmed R/o 2363, Gali Nawab Wali, Phatak Hawashkhan, Tilak Bazar Delhi-110006
2) Noor Mohammad (deceased) Through his LRs
i) Mohd. Aftab (son)
ii) Mohd. Iftikhar (son) All R/o : 1056, First Floor, Phatak Ram Kishan Dass, Bazaar Chitli Qabar, Delhi-110006
iii) Mohd. Attaur Rehman Zulfkar (son) R/o 3018, Second Floor, Kucha Neelkanth, Sarsaiyad Ahmed Road Darya Ganj, New Delhi-110002
iv) Mohd. Intakhab (son) R/o ORBIS Security O-118, Shopping Mall, Gurgaon Haryana.
v) Mst. Qamar Jahan (daughter) R/o C-4, Gali No.9, Hindon Vihar Society, sector-49 NOIDA, Gautam Budh Nagar (U.P.)
vi) Mohd. Akhloq (son) R/o Country of Pakistan
3) Mohd. Iqbal S/o late Shri Noor Mohd.
R/o 1056, First Floor, CS DJ No. 609775/16 Page no. 3 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:30:14 +0530 Phatak Ram Kishan Dass, Bazaar Chitli Qabar, Delhi
4) Mst. Shamim Begum W/o Mohd. Yaseen R/o 1049, Phatak Ram Kishan Dass, Bazaar Chitli Qabar, Delhi-110006
5) Mst. Noor Jahan W/o Mohd. Yameen R/o 1049, Phatak Ram Kishan Dass, Bazaar Chitli Qabar, Delhi-110006
6) Mst. Aqeela Begum W/o Mohd. Ashqeen R/o 1049, Phatak Ram Kishan Dass, Bazaar Chitli Qabar, Delhi-110006.
7) Mst. Rabia Begum W/o Abdul Hakim D/o Naziran Begum R/o A-15/1C/64, New Seelampur, Delhi-110053.
...... Defendants Date of Institution : 24.12.2003 Date of preliminary decree : 13.05.2024 Final arguments concluded on : 25.10.2024 Date of final decision : 25.10.2024 Result : Finally Decreed SUIT FOR PARTITION, DECLARATION, RENDITION OF ACCOUNTS AND PERMANENT INJUNCTION FINAL JUDGMENT CS DJ No. 609775/16 Page no. 4 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:31:46 +0530 The plaintiff has filed the present suit for partition and other reliefs against the defendants and a preliminary decree was passed by this court vide judgment dated 13.05.2024 in respect of suit property bearing property no. 1049 and 1044, Phatak Ram Kishan Dass, Bazar Chitli Qabar, Delhi-110006. The share has been divided in two portion as 50% each towards the legal heirs of Bismilla Begum and 50% towards the legal heirs of Hasina Begum. Same is as under:
Distribution of Assets of legal heirs of deceased of Bismilla and Hasina Begum Heirs of Rafiq Share per head (%)
1. LRs of Mohd. Yaseen 8.33 (collectively)
2. Son (Mohd. Yameen) 8.33
3. LRs of Mohd. Ashqeen 8.33 (Collectively)
4. Daughter Mst. Firdos 4.17
5. Daughter Mst. Kausher 4.17 Heris of Naziran Begum
6. Ferooza Begum 16.67 Heirs of Hasina Begum 7. Mohd. Iqbal 50 Total 100
2. The relief of permanent injunction was also granted by directing that none of the parties shall transfer their right, title or interest exceeding his/her share in the suit properties to any third person without following the due process of law. A decree was also passed by declaring CS DJ No. 609775/16 Page no. 5 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:32:00 +0530 the sale deeds dated 08.03.2007 executed in favour of defendant no. 4 to 6 as null and void.
3. This court heard on the point of physical partition of the suit property to which, Ld. Counsel for the parties state the suit property cannot be divided by meats and bound (physically) and final decree may be passed.
4. Even report of the Ld. LC is already on record and he also opined that there is no feasibility of physical partition of the property.
Moreover, from the division of share as ascertained in the preliminary decree, it is seen that some are very meager and dividing the property will not be convenience/suitable for the parties. This court also deliberated with the counsel/parties on the point of inter se sale/purchase of the share of the other party but no consensus was arrived at.
5. 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 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 CS DJ No. 609775/16 Page no. 6 of 14 Feroza Begum & Ors. vs. Rafiq & ORs.
Digitally
signed by
NARESH
NARESH KUMAR
KUMAR LAKA
LAKA Date:
2024.10.25
16:32:07
+0530
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."
6. The Full Bench of Hon'ble High Court of Delhi has dealt with the issue of Sale of the property in Partition matter 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 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 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 CS DJ No. 609775/16 Page no. 7 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:32:38 +0530 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 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 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 CS DJ No. 609775/16 Page no. 8 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:32:44 +0530 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 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 (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 CS DJ No. 609775/16 Page no. 9 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:32:51 +0530 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 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 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 really in today‟s date and age in urban areas is a partition in terms of FAR/covered area, and CS DJ No. 609775/16 Page no. 10 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:32:58 +0530 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 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."
7. In view of the aforesaid law and the facts, this court holds that the only mode available under the law is to auction the suit property for division of share out of the sale proceeds. For the said purpose and to invoke Section-3 of the Partition Act, 1893, a final decree is required to be passed. Thereafter, said final decree is required to be engrossed upon the Non-Judicial stamp paper, as has been laid down by the Hon'ble 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 CS DJ No. 609775/16 Page no. 11 of 14 Feroza Begum & Ors. vs. Rafiq & ORs.
Digitally
signed by
NARESH
NARESH KUMAR
KUMAR LAKA
LAKA Date:
2024.10.25
16:33:06
+0530
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
8. Considering the above facts & circumstances of the present case, the following final order/decree is passed:
(A) The suit property i.e. property no.1049 and 1044, Phatak Ram Kishan Dass, Bazar Chitli Qabar, Delhi-110006 shall be sold out in auction and the auction amount, after deducting necessary expenses, shall be distributed to the parties as per their share already decided in preliminary decree. Parties are, however, at liberty to buy/sell the share of other one before the date of auction of the said sale under intimation to this court.
CS DJ No. 609775/16 Page no. 12 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:33:13 +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 the same 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 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 directed to be paid by the defaulting party by the Executing Court or it can be adjusted, out of the sale proceeds.
(D) The relief of permanent injunction in respect of restraining the plaintiff and defendants from raising the construction and/or creating any 3rd parte interest in the suit property i.e. property no. 1049 and 1044, Phatak Ram Kishan Dass, Bazar Chitli Qabar, Delhi-110006 is hereby made absolute.
(E) No party lead any evidence with regard to the relief of rendition of account, therefore, said relief is rejected.
CS DJ No. 609775/16 Page no. 13 of 14 Feroza Begum & Ors. vs. Rafiq & ORs. Digitally signed by NARESH NARESH KUMAR KUMAR LAKA LAKA Date:
2024.10.25 16:33:21 +0530
9. Accordingly, the final decree will be drawn on the filing of requisite stamp papers. File be consigned to record room after due compliance. Copy of the judgment be given dasti, if desired.
Digitally signedNARESH by NARESH KUMAR LAKA KUMAR Date:
Announced & dictated in LAKA 2024.10.25 16:33:27 +0530 the open court on 25.10.2024 (Naresh Kumar Laka) District Judge-07 Central District/Tis Hazari Court CS DJ No. 609775/16 Page no. 14 of 14 Feroza Begum & Ors. vs. Rafiq & ORs.