LexRENU DEVI versus MAHENDRA SINGH AND ORS.
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A B RENU DEVI v. MAHENDRA SINGH AND ORS. FEBRUARY 4, 2003 [R.C: LAHOTl AND BRIJESH KUMAR, JJ.) Code of Civil Procedure, 1908-0rder XX Rufe· 18-Suit for partition · f?f property-Preliminary and final decree, distinction between-First Decree based on compromise effecting partition by metes and bounds by defining C shares of the parties and 'demarcating the properties allotted-Compromise decree also acted upon by parties-Subsequently another decree drawn up, engrossed on stamp paper, reproducing contents of first decree-Held, first decree itself a final decree-Deficiency of not being on requisite stamp paper stood supplied by subsequent decree which would relate back to date of first D decree conferring valid legal title on parties on that date. Doctrines: Doctrine of feeding the estoppel-App/icabi/ity of-Explained Members of a joint hindu family filed suit for partition. Parties E entered into a compromise, and a compromise/preliminary decree was passed. Schedule of the property were drawn whereby property fell to the share of the parties. Two of the beneficiaries of such decree then gifted their right, title and interest in the property to the appellants- daughter-in-law and grandsons by registered gift deed. The decree was F not engrossed on stamp paper. One of the parties filed an application for drawing up 'final' decree in terms of 'preliminary' decree. 'Final' decree was engrossed on requisite stamp paper. The contents of the final decree are just reproduction of the preliminary decree. Appe.llants then filed suit claiming title over the property gifted to the'm. Trial court dismissed the suit. However, first appellate court allowed the appeal. High Court in G the second appeal held that donors acquired their separate title in joint property only by the final decree and were legally incompetent to gift their property to donees before the date of final decree. Hence the present appeals. H Allowing the appeals, the Court 820 .. RENU DEVI v. MAHENDRA SINGH 821 HELD: I.I A preliminary decree declares the rights or shares or A parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the p•rties in separate possession of divided property then such inquiry shall be held and pursuant to the result or further inquiry a final decree shall be passed. 1826-E, Fl B t.2. In the instant case, a perusal or the preliminary decree and the contents or the compromise application with the schedules of properties annexed thereto shows that the property was partitioned by metes and bounds and not only the shares but the property actually falling to the share of the parties were actually defined and given to the party entitled C therefo. The decree demarcates the properties forming subject matter of partition by metes and bounds. For all practical purposes the decree was a final decree. Under order XX Rule 18 ofCPC 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 D 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 which are based on compromise. The instant 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 E was a preliminary decree and therefore a final decree was needed to be drawn up. The final decree is nothing but a reproduction of the schedules contained in the preliminary decree. The only difference is that the latter decree is engrossed on stamp papers which the earlier decree was not. 1827-A-EJ F t.3. The preliminary decree being a decree effecting partition by metes and bounds ought to have been engrossed on requisite >lamp papers. The deficiency stood supplied by the same being re-written on stamp papers. That event validated the preliminary decree and it became effective and binding with effect from the date when preliminary decree was passed. Inasmuch as the preliminary decree partitioned the property by metes G and bounds whereunder the suit property fell to the share of the beneficiaries, they were entitled in law to transfer by way of
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