IMPORTANT POINT
High Court was wrong in the facts of the case in its conclusion that as gift deed was made before passing of final decree, the doner could not convey any title to the donee.

Headnote:Civil Procedure Code, 1908-Order 20 Rule 18-Decree in suit for partition-Transfer of Property Act, 1882-Section 43-Rule of Feeding the empty grant by estoppel-Suit for partition of ancestral property-Compromised-Preliminary Decree passed on 13.2.1978-It was not on stamp paper but defined shares by metes and bound-Final Decree drawn on (replica of preliminary decree) on 24.5.1979 but on stamped paper-One of the recipients in preliminary decree made a gift of that property to daughter-in-law and grand sons on 22.3.1979 (between Preliminary decree and final decree)-High Court, reversing first appellate Court, holding that donors had no title before final decree-Whether correct? (No)-Distinction between preliminary decree and final decree-Application of Rule of Feeding grant by estoppel applied-Appeal allowed.
       Held : The distinction between preliminary and final decree is this : a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree. (Para 8)
       Under Order XX Rule 18 of the CPC it is not necessary to pass a preliminary decree; the Court may pass a preliminary decree if it is required. If the rights of the parties are finally determined and no further inquiry remains to be held for the purposes of completing the proceedings in partition then there is nothing in law which prevents the Court from passing a final decree in the very first instance. Often such are the cases one is such a case. However, still one of the parties sought for a final decree being drawn up. The Court and the parties acted under the misapprehension that the decree dated 13.2.1978 was a preliminary decree and therefore a final decree was needed to be drawn up. As we have already stated the final decree dated 24.5.1979 is nothing but a reproduction of the schedules contained in the preliminary decree dated 13.2.1978. The only difference is that the decree dated 24.5.1979 is engrossed on stamp papers which the decree dated 13.2.1978 was not. (Para 9)
       Held after case law : The decree dated 13.2.1978 being a decree effecting partition by metes and bound ought to have been engrossed on requisite stamp papers. The deficiency stood supplied by the same being re-written on stamp papers on 24.5.1979. The event dated 24.5.1979 validated the decree dated 13.2.1978 and it became effective and binding with effect from 13.2.1978 itself. Inasmuch as the decree dated 13.2.1978 partitioned the property by metes and bounds whereunder the suit property fell to the share of Group-2 therein, i.e., Rameshwar Singh and Dhaneshwari Devi, they were entitled in law to transfer by way of gift the property which had fallen to their share to their daughter-in-law and the grandsons. The donees acquired a valid legal title thereunder. The High Court was not right in holding that unless and until the final decree was passed on 24.5.1979 till then a gift of the property covered by the two decrees could not have taken place in between on 22.3.1979.
        (Para 11)
       Held further : On the principle of feeding the grant by estoppel the subsequent acquisition of title under the decree dated 24.5.1979 shall enure to the benefit of the donee under the deed of gift dated 22.3.1979 for whatever infirmity there was (though we have held that there was none) in the title of Rameshwar Singh and Dhaneshwari Devi stood cured by the final decree dated 24.5.1979. The doctrine of feeding the grant by estoppel which is in essence a principle of equity stands statutorily recognised in India by Section 43 of the Transfer of Property Act. Section 43 of the T.P. Act does not in terms apply to the facts of the present case, inasmuch as the deed dated 22.3.1979 is not a transfer for consideration; we are referring to Section 43 abovesaid as illustrative of the doctrine and its statutory recognition in Indian Law. (Para 12)
       Though there is some doubt expressed by Indian scholars and authorities if the common law doctrine of the estate instantly passes is applicable in India but there is no doubt that the doctrine of feeding the estoppel applies in India. The rule is that if a man, who has no title whatever to the property, grants it by a conveyance which in form carries the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes. (See Mulla, ibid, p. 312). Equity treats that as done which ought to be done. The doctrine may not apply if the deed of transfer itself was invalid or if the third party has acquired title bona fide, for consideration and without notice. In the present case the execution and registration of deed of gift dated 22.3.1979 is not disputed. Nor is there any illegality or invalidity attaching with the deed. The rule of estoppel by deed would clearly apply. Could Rameshwar Singh and Dhaneshwari Devi have denied their own title in the gifted property qua the donees or could they have disputed their title vesting in the donees by the deed of gift? The answer is no . That being so, the third parties, i.e. the respondents herein who have no title, muchless a pre-existing title in the suit property cannot question the title of donors vesting in the donee. The defect, if any, in the decree dated 13.2.1978 which was nothing except of not being engrossed on requisite stamp papers, was cured on 24.5.1979. The contents of decree came to be engrossed on requisite stamp papers. The decree dated 24.5.1979 would in the facts and circumstances of the case, relate back to the date 13.2.1978. In either case the reasoning applied by the learned Single Judge of the High Court is not sound in law and cannot be sustained. (Paras 14 and 15)
       Held finally : For the foregoing reasons, the appeals are allowed. The judgment and decree of the High Court are set aside and those of the First Appellate Court are restored. In the facts and circumstances of the case, as the parties are closely related, we leave the parties to bear the costs as incurred throughout. (Paras 17 and 18)

Judgement Key Points

The provided legal document does not explicitly address or hold that the executing court cannot amend or modify the decree. The focus of the judgment is primarily on the distinction between preliminary and final decrees, the validity of transfers made prior to the finalization of the decree, and the application of the doctrine of feeding the grant by estoppel. The decision emphasizes that the decree, once validated, relates back to the date of the original decree and that the court's authority to effectuate the partition and transfer is not hindered by the timing of the final decree's execution or engrossment. However, there is no specific discussion or ruling within the document that directly states or holds that the executing court is barred from amending or modifying the decree.

JUDGMENT

R.C. Lahoti, J.-Rameshwar Singh had two wives, (i) Ram Sakhi, and (ii) Dhaneshwari Devi. From the first wife Ram Sakhi, Rameshwar Singh has a son, namely, Mahendra Singh. From Dhaneshwari Devi Rameshwar Singh has another son, namely, Suresh Prasad. Mahendra Singh has four sons, namely, Dilip, Pradeep, Rajesh and Rakesh. Suresh Prasad has two sons, namely, Ranjan and Raj Kumar. The family had substantial landed property. A suit for partition was filed by Suresh Prasad and his two sons, Ranjan and Raj Kumar (referred to as Group-1 for the sake of convenience) impleading Rameshwar Singh and Dhaneshwari Devi as defendants 1 and 2 ( Group-2 for convenience) and Mahendra Singh, Dilip, Pradeep, Rajesh and Rakesh as defendants 3 to 7 ( Group-3 for convenience). The suit for partition though initially contested, ended into a compromise based whereon a compromise decree was passed on 13.2.1978.

2. A perusal of the compromise application dated 11.1.1978 shows that three schedules of the property were drawn up. Schedule No.1 sets out full description of the property which Group-1 got in the share. Schedule No. 2 sets out full description of the landed property and houses which fell to the share of Group-2. Schedule No. 3 sets out full description of the landed property which fell to the

share of Group-3. Wherever something had remained to be done for the separate possession and enjoyment of the property falling to the share of each of the groups, recitals in that regard were incorporated in the body of the compromise petition. This compromise decree was acted upon. There is no controversy that each of the groups was either already in possession or took over possession over that property which had fallen to its share in accordance with the three schedules annexed with the compromise petition. The compromise decree was not engrossed on stamp paper. It appears that one of the parties made an application for drawing up final decree in terms of the decree dated 13.2.1978, referred to as the preliminary decree, in the so-called final decree proceedings. There was no contest and a final decree engrossed on the requisite stamp papers was drawn up on 24.5.1979. The contents of final decree are just a reproduction of the preliminary decree inasmuch as either in the description of the divided property or in the shares no variation had taken place between 13.2.1978 and 24.5.1979.

3. It is not disputed that House No. 270, situated on Plot No. 885 of Lalji Tola had fallen to the share of Group-2, i.e., Rameshwar Singh and Dhaneshwari Devi. By a registered deed of gift dated 22.3.1979 Rameshwar Singh and Dhaneshwari Devi of Group-2 gifted their right, title and interest in the property to Renu Devi wife of Suresh Prasad, i.e., the daughter-in-law of Rameshwar Singh and Dhaneshwari Devi and the grandsons Ranjan and Raj Kumar.

4. Members of Group-3 (defendants No. 3 to 7 in the partition suit) were in possession of 4 rooms, which is the suit property in the present proceedings, and had fallen to the share of Rameshwar Singh and Dhaneshwari Devi of Group-2 (defendants No. 1 and 2 in the partition suit) but they were actually in occupation of Group-3, i.e. defendants 3 to 7 in the partition suit. The compromise petition recited that Group-3 would reside free of cost for one year in 3 rooms alongwith latrine and bathroom which is towards southern portion and one room towards northern portion. The compromise decree further recited that if they (i.e. Group-3) could not construct their own house within a year then they would continue to reside in that part of the house but subject to payment of monthly rent to Group-2 (i.e. defendants No. 1 and 2 in the partition suit) calculated at the prevalent rate of rent minus Rs.10/-.

5. Subsequent to the passing of the final decree three suits came to be filed. Title Suit No. 191/80 came to be filed by Dilip S/o Mahendra Singh laying challenge to the compromise decree. Title Suit No. 112/79 was fi

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2003 Supreme(SC) 131

IMPORTANT POINTHigh Court was wrong in the facts of the case in its conclusion that as gift deed was made before passing of final decree, the doner could not convey any title to the donee.

Cases Referred (4)

IMPORTANT POINT
High Court was wrong in the facts of the case in its conclusion that as gift deed was made before passing of final decree, the doner could not convey any title to the donee.