Case Brief: RENU DEVI Vs. MAHENDRA SINGH AND ORS.

Deciding Authority: Supreme Court of India
Date of Judgement: 4th February, 2003
Bench: Justice R.C Lahoti & Justice Brijesh Kumar
Facts of the Case: A suit for partition was filed by the petitioners. The suit for partition though initially contested, ended into a compromise based whereon a compromise decree was passed on 13.2.1978. A perusal of the compromise application dated 11.1.1978 shows that three schedules of the property were drawn up. Schedule No.l 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. The plaintiffs-appellants claimed title over the suit property under the decrees dated 13.2.1978 and 24.5.1979 read with deed of gift dated 22.3.1979. Money Suit No. 73/ 84 also came to be filed by the plaintiffs-appellants against the defendants-respondents claiming recovery of rent consistently with the terms of the decrees referred to hereinabove. The Trial Court dismissed all the suits. Three appeals were preferred. Money Appeal No. 12/88 arising out of Money Suit No.73/84 and Title Appeal No. 129/88 arising out of Eviction suit No. 112/ 79 were allowed by the First Appellate Courts and decrees for eviction as also for recovery of rent were directed to be passed in favour of appellants and against the respondents herein. Title Appeal No. 132/88 arising out of Title Suit No. 191/80 filed by Dilip S/o Mahendra Singh has been dismissed and the dismissal of his suit upheld in Title Appeal No. 132/88. Dilip S/o Mahendra Singh has not pursued the challenge to partition decree and so the legality and validity of the partition decree has achieved finality and is not open to question any further.
Judgement of the Case: In a suit for partition of property or separate possession of a share therein Order XX Rule 18 of the CPC contemplates decree to be passed in the following terms. The Supreme Court held the law has been correctly stated by the Division Bench ofthe Patna High Court. The learned counsel for the appellants also relied on a Special Bench (3 Judges) decision of the Chief Court of Oudh in Muzaffar Husain v. Sharafat Husain and Ors., AIR (1933) Oudh. 562 which in turn relies on a Madras High Court decision in Thiruvengadathamiah v. Mungiah, (1912) 35 Mad, 25. The principles of law laid down in the two decisions support the view taken by the Division Bench of the Patna High Court. We find ourselves in agreement with the view of the law taken by the Oudh Chief Court and Madras High Court. The decree dated 13.2.1978 being a decree effecting partition by metes and bound ought to have been engrossedon requisite stamp papers. The High Court was not right in holding that unless and until the final decree was passed on24.5.1979 till then a gift of the property covered by the two decrees couldnot have taken place in between on 22.3.1979. There is yet another aspect of the matter. Assuming it for a moment that on 22.3.1979 the donors had not actually acquired title to the property and yet they had gifted this property to their daughter-in-law and grandsons it cannot be denied that they had a pre-existing interest in the suit property by virtue of their being members of the Joint Hindu Family and their interest and right to partition having been upheld by the so-called preliminary decree dated 13.2.1978. By the subsequent decree dated 24.5.1979 they did acquire a clear and complete title in the same property which they had gifted on22.3.1979. On the principle of the feeding the grant by estoppel the subsequent acquisition of title under the decree dated 24.5.1979 shallensure to the benefit of the donce 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 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. Actdoes 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 referringto Section 43 abovesaid as illustrative of the doctrine and its statutoryrecognition in India Law.