Vipin Sanghi, J. - (1.) OBJECTIONS have been raised by the registry calling upon the parties to file stamp duty as leviable on an instrument of partition, before the decree is drawn up. Since the defendants have contested this objection by filing I.A. No. 2698/2007, I have heard Mr. Prosenjeet Banerjee for the defendants, Mr. J.R. Midha, Advocate on behalf of the State and Mr. Pritesh Kapoor, Advocate, who was appointed as an Amicus Curiae by the Court. After hearing of arguments of the learned Counsel, the judgment had been reserved on 1st February , 2008. Written Submissions were filed by Mr. Pritesh Kapur along with compilation of relied upon judgments. A compilation of judgments was also filed by Mr. Banerjee on which he placed reliance. However, the Judgment could not be prepared due to preoccupation with other judicial work. Accordingly, the matter was directed to be listed to rehear the submissions of the learned Counsels. Despite notice, there was no appearance on behalf of the State. However, the submissions of Mr. J.R. Midha Advocate (as he then was) had been noted at the time of the initial hearing. Accordingly, Mr. Banerjee on behalf of the defendants and Mr. Pritesh Kapoor, the learned amicus curiae were heard again on 05.03.2010 and the judgment was again reserved. Mr. Banerjee filed his written submissions on 31.03.2009. Accordingly, I proceed to dispose of the objection raised by the Registry and I.A. No. 2698/2007 filed by the defendants.
(2.) THE plaintiffs, i.e. Shri Mangat Ram and his wife, Smt. Angoori Devi had filed the suit to seek partition with possession of property No. AE -138, Shalimar Bagh in equal share with the defendants i.e. Shri Ram Narain Gupta and his wife Smt. Sushila Gupta. The defendants had filed their written statement disputing the claim of the plaintiffs. However, during the pendency of the suit the parties arrived at a settlement. Along with an application being I.A. No. 4317/2002 filed under Order 23 Rule 3 C.P.C., the parties filed on record a document titled "Memorandum of Oral Family Settlement" (herein referred to as MOFS) which was exhibited as Ex.CX on 3.5.2002 when the aforesaid application was taken up for consideration by the Court. This MOFS is stated to have been drawn, recorded and signed on 24.4.2002 between the parties to the suit to record the Oral Family Settlement stated to have been arrived at between the parties on 3.4.2002. This MOFS, inter alia, records that 'the parties are equal owners of built up property bearing No. AE -138, Shalimar Bagh Block AE, admeasuring 207 sq. mts. with roof rights, situated in the lay out plan of Shalimar Bagh Residential Scheme, Shalimar Bagh, Delhi -110088 with leasehold rights of the land under the property. It further records that Shri Ram Narain and Mangat Ram i.e. the defendant No. 1 and plaintiff No. 1 herein 'are the owners and in possession of shop bearing No. 109' admeasuring 20' x 85' situated at New Anaj Mandi, Samalkha, Dist. Panipat, Haryana in equal share which was allotted to the firm M/s Chiranjilal Ram Narain - in which the defendant No. 1 and the plaintiff No. 1 were partners. The said firm was dissolved on 1.10.1993 and Shri Ram Narain retired from the firm and Mangat Ram became the sole proprietor of the firm and retained the assets and liabilities of the firm. It further records that 'Shri Ram Narain is the owner and in possession of the property with roof rights' of land measuring about 50 sq.yds on the back side of house of Shri Mangat Ram bearing No. 75/13, Old Gur Mandi, Samalkha, Dist. Panipat, Haryana. It records that disputes had arisen between the parties in respect of the aforesaid properties and the plaintiffs filed the present suit against the defendants which is pending. It records that with the intervention of family friends, and in order to solve the family disputes, for the sake of family peace and to avoid further litigation, the parties held amicable negotiations in order to effect a Partition/distribution through mutual adjustment of their already existing rights and interests in the above mentioned properties for exclusive possession, ownership and better use, occupation and enjoyment of the divided properties in the manner described in the said memorandum. In the meeting of the parties and family friends held on 3.4.2002 the parties had arrived at 'a full and final oral, negotiated and amicable Family Settlement in respect of the said properties'. It was further agreed between the parties that the property bearing No. AE -138, situated at Shalimar Bagh, Delhi -110088, 'will go and belong to the First Party' i.e. the defendants herein and the property bearing Shop No. 109, situated at New Anaj Mandi, Samalkha, Distt. Panipat, Haryana, along with the share of Shri Ram Narain in Property No. 75/13 situated at Old Gur Mandi, Samalkha, Distt. Panipat, Haryana 'will go and belong to the Second Party' i.e. plaintiffs herein. This MOFS further records as follows: Now this memorandum records the oral family settlement as hereunder: 1. That the property bearing No. AE -138, Shalimar Bagh, Delhi -10088 after the agreed adjustment between the parties shall absolutely and irreversibly be in the sole and absolute ownership and legal as well as actual possession of Mr. Ram Narain and Mrs. Sushila Gupta i.e. First Party. Shri Mangat Ram and Smt. Angoori Devi i.e. Second Party shall have no right whatsoever in the same and therefore shall never claim any legal right, title, claim or interest in the same or ever contest or challenge the same before any forum or Authority of law or Government Instrumentality or in any Court of Law. 2. That the property bearing Shop No. 109 at New Anaj Mandi, Samalkha, Distt. Panipat, Haryana and house No. 75/13 at Old Gur Mandi, Samalkha, Distt. Panipat, Haryana, after the agreed adjustment between the parties shall be in the sole and absolute ownership and legal as well as actual possession of Shri Mangat Ram and Smt. Angoori Devi. i.e. the Second Party after the agreed adjustment between the parties. Shri Ram Narain and Smt. Sushila Gutpa i.e. First Party shall never claim any legal right, title, claim or interest in the same or ever contest or challenge the same before any Forum or Authority of law or Government Instrumentality or in any Court of Law. That it was agreed that in future both the parties will enjoy, occupy and possess as absolute owners their respective properties as mentioned hereinabove without the intervention of other party. That the effect of the oral settlement is that both the parties shall enjoy the respective properties that have fallen into their lot as property owned and possessed by them actually, legally and notionally and having a perfect title and absolute rights of ownership and further disposal and/or alienation.
(3.) THAT it was agreed that both the parties have also taken the consent and acceptance from their legal heirs regarding this memorandum and none of the legal heirs will challenge this Memorandum of Oral Family Settlement and will not file any suit before any court of law from Lowest Jurisdiction to highest Jurisdiction.;