MUST. SHAHABIA BEGUM v. MUST. PUKHRAJ BEGUM — 1972 DIGILAW 213 (DEL)

P. N. KHANNA ( 1 ) THIS judgment will dispose of two Execution Second Appeals; ESA 9 of 1972, filed by Shahabia Begum, and ESA 10 of 1972, filed by Sharfuddin. The appeals are directed against two separate judgments both dated April 12, 1972 of the learned Additional District Judge, Delhi, dismissing their first appeals against the orders of the execution Court dismissing their respective objections to the sale of certain property in favour of Pukhraj Begum and to the delivery of its possession to her. ( 2 ) SHAHABIA Begum, appellant in ESA 9 of 1972, herein called the appellant , is the widow of Wahabuddin who died on June 26, 1961 leaving behind him, the appellant his son, Sharfuddin, respondent No. 6 in ESA 9 of 1972 and appellant in ESA 10 of 1972, Pukhraj Begum, widow of his pre-deceased son, who is respondent No. 1 in both the appeals, and her children, respondents Nos. 2 to 5 in both the appeals. On June 25, 1968, Pukhraj Begum and her children, respondents Nos. 1 to 5, and Shahabia Begum, the appellant, as plaintiffs Nos. 1 to 6, filed a suit for partition of a house, against Sharfuddin, On May 18, 1970, a preliminary decree for partition was passed declaring the shares of the parties as follows: Shahabia Begum-2/ 16th; Sarf-ud-din-7/16th; and respondents Nos. 1 to 5 7/16th. A local commissioner was appointed to effect partition, who reported that the property was not partible. No objections having been filed, the report was accepted on July 16, 1970, and the property was held to be impartible. On July 17, 1970, an order for final decree for partition was passed holding the property to be impartible and directing that it should be auctioned and the sale proceeds be divided amongst the parties according to their shares as fixed above. Costs were also awarded in favour of the plaintiffs against the defendant. On the same day, a decree sheet on a plain paper in the prescribed form was prepared and signed. ( 3 ) THE decree-holders filed the first execution application on July 22, 1970 for sale of the property. Permission was also sought by Pukhraj Begum to bid at the auction, which was granted. The auction took place on September 8, 1970 and the property was sold for Rs. 8000. 00 in favour of Pukhraj Begum. ( 3 ) THE decree-holders filed the first execution application on July 22, 1970 for sale of the property. Permission was also sought by Pukhraj Begum to bid at the auction, which was granted. The auction took place on September 8, 1970 and the property was sold for Rs. 8000. 00 in favour of Pukhraj Begum. She was permitted to deposit in Court the shares of me judgement-debtor and others, which she did. On November 20, 1970 objections to the sale were filed, but were dismissed. The sale was confirmed and sale certificate was duly Issued. ( 4 ) ON December 8, 1970, another application was filed praying for delivery of possession to the auction purchaser (Pukhraj Begum ). It was at this stage that Shahabia Begum, the appellant, filed two objection applications, one dated December 8, 1970, under Section 151 of the Code of Civil Procedure, and the other dated January 15, 1971, under Section 47 and certain other provisions of the Code. Sharf-ud-din also filed objections dated December 8, 1970 under Sections 47 and 151 of the Code of Civil Procedure. The main point involved in the objections filed by both was common, viz. that the sale effected in pursuance of the aforesaid final decree was without jurisdiction as the final decree itself not having been engrossed on the requisite stamp paper, was defective and unenforceable. Both objections were, however, dismissed on April 29, 1972 by two separate orders. The appeals were likewise dismissed by the Additional District Judge again by two separate orders. Feeling aggrieved, both the aforesaid objectors have filed two separate second appeals, as mentioned above. ( 5 ) MR. V. B. Andley, appearing on behalf of Shahabia Begum in ESA 9 of 1972, whose arguments were adopted by Mr. Gauri Shankar, appearing on behalf of Sharf-ud-din in ESA 10 of 1972, has raised two contentions: (1) That the decree was required to be engrossed on a proper stamp paper as an instrument of partition, as defined in Section 2 (15) of the Stamp Act. As the same was not so engrossed, it could not be acted upon and executed. Gauri Shankar, appearing on behalf of Sharf-ud-din in ESA 10 of 1972, has raised two contentions: (1) That the decree was required to be engrossed on a proper stamp paper as an instrument of partition, as defined in Section 2 (15) of the Stamp Act. As the same was not so engrossed, it could not be acted upon and executed. The sale of property in execution thereof and other proceedings in connection therewith are accordingly without jurisdiction and void; and (2) That the objections could be raised at any stage and in any proceedings, whether before the trial Court, or the executing Court or in any other Court. ( 6 ) SECTION 2 (15) of the Stamp Act defines instrument of partition as follows: " instrument of partition means any instrument whereby co-owners of any property divide or agree to divide such property in severally, and includes also a final order for effecting a partition passed by any revenue-authority or any Civil Court and an award by an arbitrator directing a partition. "the order dated July 17, 1970 passing the final decree for partition in the instant case, directing the sale of the property and distribution of the sale proceeds in the proportion fixed as already mentioned, was a final order for effecting partition, passed by a Civil Court and was, therefore, covered by the definition of an instrument of partition. The final decree, therefore, should have been engrossed on a proper non-judicial stamp paper under Article 45 of Schedule I to the Stamp Act. ( 7 ) MR. S. I. Bhatia, the learned counsel for the respondents submitted that the property which was joint was the house, which was ordered to be auctioned without being partitioned. The shares of parties concerned had been declared and the sale proceeds, when recovered were to be given over to them in proportion to their shares so fixed. There was, accordingly, no order for effecting a partition of the property in suit; and fhe final decree, according to Mr. Bhatia, could not be said to be an instrument of partition. This contention, however, is not correct. The decree directing the sale of the house and the division of the sale proceeds, was a final order effecting a partition. There would have been no occasion for ordering sale of property, if it was not to be partitioned. Bhatia, could not be said to be an instrument of partition. This contention, however, is not correct. The decree directing the sale of the house and the division of the sale proceeds, was a final order effecting a partition. There would have been no occasion for ordering sale of property, if it was not to be partitioned. The sale of the house and the distribution of the sale proceeds were methods by or the manner in which the partition was to be effected. The sale itself was in fhe course of partition, which was to be completed by the division of fhe sale proceeds. The order giving such directions was, therefore, an instrument of partition as defined in Sec, 2 (15) of the Stamp Act, as it did effect a partition of fhe property. The payment to the parties concerned were to be made out of the sale proceeds of the joint property, which otherwise might not have been sold at all. (See Pandivi Satvanandam v. Paramkusam Nammayya, AIR 1938 Madras 307 ). The find decree thus being an instrument of partition was chargeable with duty, as already noticed, under Article 45. ( 8 ) UNDER Section 85 of fhe Stamp Act, no instrument chargeable with duty can be acted upon by any public officer nor can it be received in evidence unless it is duly stamped. The execution Court when asked to execute such a final decree is, beingcalled upon to act upon such instrument. As the same is not properly stamped under the Stamp Act, fhe mandatory bar created by Section 35 prevents fhe Court from acting upon it. Reference to Sec. 36 of the Stamp Act in this connection has no relevance, as the said section does not deal with acting upon. It prevents the questioning of admission into evidence, of such an instrument, once it has been so admitted, may be inadvertently. It does not prevent fhe questioning of an action, which may have been taken on such instrument. (See judgments reported in AIR 1932 Lah 249, AIR 1935 Lah 364, AIR 1933 Oudh 562 (SB), AIR 1956 Mad 207 (FB), AIR 1957 Mys 71 and AIR 1957 Cal 375 ). It does not prevent fhe questioning of an action, which may have been taken on such instrument. (See judgments reported in AIR 1932 Lah 249, AIR 1935 Lah 364, AIR 1933 Oudh 562 (SB), AIR 1956 Mad 207 (FB), AIR 1957 Mys 71 and AIR 1957 Cal 375 ). In Copi Mal v. Vidya Wanti, AIR 1942 Lah 260 (FB), the Full Bench of the Lahore High Court came to fhe conclusion that a final decree which is not engrossed on a stamp paper may, by fhe provision of fhe requisite Stamp be validated, as it was not a decree passed by a Court without having jurisdiction to pass it. The Full Bench observed; "there is still no lack of inherent jurisdiction, though there might be an irregularity or illegality in the exercise of jurisdiction. . . . . . . . . . while there is not a decree that can be acted upon, there is a decree which may at any moment, by the provision of the stamp, be validated. The Full Bench summed up fhe position thus. "there is no lack of inherent jurisdiction in the executing Court, to act upon fhe decree, that is to execute it; but there is an illegality or error affecting its jurisdiction in proceeding to act upon a decree which fhe statutory Bar provided by Section 35 forbids it from doing. Once the proper stamp is supplied, the validity of the decree would date back to the date of the decree and, therefore, the execution application instead of being struck off might proceed as from that date. But this would not validate the proceedings that had taken place before the proper stamp was supplied. Those proceedings would still be without jurisdiction in the sense that the Court was barred by statute from proceedings in fhe way it did without a proper stamp and, therefore, the proceedings were without any legal justification. " ( 9 ) IN the instant case, the final decree not having been engrossed on a proper stamp paper, was not a decree that could be acted upon until proper stamp was supplied. The order of the Court, as an executing Court, in directing the sale of the property and distribution of the sale proceeds was, therefore, an action of the Court, without having jurisdiction to do it. The order of the Court, as an executing Court, in directing the sale of the property and distribution of the sale proceeds was, therefore, an action of the Court, without having jurisdiction to do it. ( 10 ) MR, Bhatia contended that even if the decree be considered to be an invalid decree, and the order of sale of property and distribution of the sale proceeds be without jurisdiction, it could be challenged only in a regular suit and not in proceedings for delivery of possession, under O. 21, R. 95 of the Code of Civil Procedure. According to him, fhe execution proceedings had come to an end on the issue of sale certificate and on the Court ordering the issuance of cheques to fhe parties concerned for the amounts due to mem in accordance with their shares already fixed, on their filing receipts. The delivery of possession of property purchased in fhe execution sale, according to him, is not a question relating to the execution, discharge or satisfaction of the decree; and the application for that purpose, he said, was not an application in execution proceedings. But, whatever be fhe nature of the proceedings and irrespective of the fact that execution proceedings have or have not come to an end, the appellants cannot be prevented from raising the objection that the order directing sale of property and distribution of sale proceeds was without jurisdiction and, therefore, a nullity; and that the sale in pursuance of fhat order is also invalid and that the possession cannot be delivered as a result thereof. In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 , the Supreme Court observed: "it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at fhe stage of execution and even in collateral proceedings, A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject- matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. " In the present case, there being a statutory bar against the Court acting upon the final decree without it being engrossed on a proper stamp, the Court had no jurisdiction to act upon the same and order the sale of the property. This order was, thus, an order passed without jurisdiction and was a nullity and its invalidity in the words of the Supreme Court, could be set up whenever and wherever it was sought to be enforced or relied upon. The respondent, Pukhraj Begum, who was asking for possession of the property, was relying upon the said order, in pursuance of which the sale was effected. The same being without jurisdiction and, therefore, a nullity, can be ignored, as its invalidity can be set up even at this stage and in these proceedings. The learned Additional District Judge, as also the executing Court, therefore, were not justified in dismissing the objections of the appellants, Shahabia Begum and Sharf-ud-din. ( 11 ) ACCORDINGLY, the appeals are accepted; and as the two orders dated April 29, 1971 passed by the learned Additional District Judge and also the orders passed by the execution Court, dismissing the objections of Shahabia Begum and of Sharf-ud-din, cannot be sustained, the same are set aside. In the result, the objections filed by Shahabia Begum and Sharf-ud-din are upheld. The entire proceedings, relating to the auction of the property in dispute being without jurisdiction are set aside and the sale certificate and the warrant of possession, which have been issued, are cancelled. The parties, however, shall bear their own costs.