Holding

The 13‑Feb‑1978 decree is a final decree; the 24‑May‑1979 decree merely cured the stamp deficiency and relates back, so the donors had title at the time of the gift and the deed of gift is valid.

Summary

The case involved a partition suit of a joint Hindu family where a compromise decree dated 13‑Feb‑1978 allocated specific parcels of land to each party by metes and bounds, but it was not engrossed on stamp paper. A later decree dated 24‑May‑1979, executed on stamp paper, merely reproduced the earlier decree and cured the stamp deficiency, thereby relating back to the original date. The parties whose shares were allotted gifted their interest to Renu Devi and her sons on 22‑Mar‑1979. The High Court held that the donors had no title until the final decree of 1979 and thus the gift was invalid. The Supreme Court held that the 1978 decree was in fact a final decree; the 1979 decree merely validated it and the donors possessed title at the time of the gift, invoking the doctrine of feeding the grant by estoppel. Consequently, the gift was valid, the High Court judgment was set aside and the appeals were allowed.

Issues considered

The nature of the 13‑Feb‑1978 decree: whether it was a preliminary or a final decree under Order XX Rule 18 of the CPC.
Whether the lack of stamp paper for the 1978 decree rendered it ineffective until the 1979 decree.
Whether the donors possessed a valid title to the property at the time of the 22‑Mar‑1979 deed of gift.
The applicability of the doctrine of feeding the grant by estoppel to validate the gift.

Legislation cited

Arbitration Act, 1940s. 21
Code of Civil Procedure, 1908s. Order XX Rule 18
Transfer of Property Act, 1882s. 43

Subjects

Partition suitPreliminary decreeFinal decreeMetes and boundsEstoppelFeeding the grantDeed of giftJoint Hindu familyCPC Order XX Rule 18Transfer of Property ActStamp paper

Judgment

A RENU DEVI
v.
MAHENDRA SINGH AND ORS.

FEBRUARY 4, 2003

B [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 offirst
D decree conferring valid legal title on parties on that date. ..
Doctrines:

Doctrine offeeding 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.

Allowing the appeals, the Court
H 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 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. Thus th' .
High Court was not right in holding that unless and until the final decree' H __
...

822 SUPREME COURT REPORTS [2003) I S.C.R.

A was passed till then a gift of the property covered by the two decrees
could not have been taken place in between on the date the property was
gifted. 1828-E-GJ.

1.4. Assuming it for a moment that on the date the property was
gifted the donors had not actually acquired title to the property and yet
B 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
r
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. By the subsequent decree they did acquire a clear
C and complete title in the same property which they had gifted.
1828-H; 829-AJ
1.5. The rule of feeding the estoppel 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
D to satisfy the grant, the estate instantly passes. 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. On the principle of feeding t!~e
grant by estoppel the subsequent acquisition of title under the final decree
shall enure to the benefit of the donee under the deed of gift for whatever
E infirmity there was (though it is held that there was none) in the title of
donors stood cured by the final decree. Jn the instant case the execution
and registration of deed of gift is not disputed. Nor is there any illegality
or invalidity attaching with the deed. The rule of estoppel by deed would
clearly apply. The two beneficiaries could not have denied their own title
F in the gifted property qua the donees nor ·could they have disputed their
title vesting in the donees by the deed o.f gift. That being so, the third
parties, i.e. the respondents have no title, much less a pre-existing title in
the suit property cannot question the title of donors vesting in the donee.
The defect, if any, in the preliminary decree which was nothing except of
not being engrossed on requisite stamp papers, was cured. The contents
G of decree came to be engrossed on requisite stamp papers. The final
decree would in the facts and circumstances of the case would relate
back to the date when the preliminary decree was passed.
1829-B, G, H; 830-A-CJ

Raghubir Sahu v. Ajodhya Sahu and Ors., AIR 32 (I 945) Patna 4.82;
H Muzaffar Hussain v. Shara/at Hussain and Ors., AIR (1933) Oudh 562;
RENU DEVI v. MAHENDRA SINGH [R.C. LAHOTI, J.) 823
Thiruvengadathamiah v. Mungiah, (1912) 35 Mad 25, approved. A
-<! Nachiappa Che/liar v. Subramaniam Chelliar, [1960) 2 SCR 209;
Gajanan Krishnaji Bapat and Anr. v. Dallaji Raghobaji Meghe and Ors.,
[1995) 5 SCC 347; Shan/car Ba/want Lokjhande (dead) by lrs. v. Chandra/cant
Shan/car Lokhande and Anr., [1995) 3 SCC 413 and M.l. Subbaraya Setty
(dead) by lrs. and Ors. v. Ml. Nagappa Setty (dead) by lrs. and Ors., (2002) B
4 sec 743, distinguished.

Rajapakse v. Fernando, (1920) AC 892, referred to.

Civil Procedure Code by Mulla Vol.I, 1995 Edn. p.21 and Transfer of
Property Act by Mulla Ninth Edn, 2000, pp. 310 and 312, referred to. C
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4231 of
1999.

From the Judgment and Order dated 23.6.1998 in AFAD 72195 of the
High Court Patna. D
WITH
Civil Appeal No. 4232 of 1999.

S. Balakrishnan, Kumar Parimal, Abhay Kumar, S.N. Jha, R. Gopal
Krishna and Mrs. V. Mohana for the Appellants. E
S.B. Upadhyay, Ashok Kr. Pandey and Goodwill Indeevar for the
Respondents.

The Judgment of the Court was delivered by
F
R.C. LAHOTI, J. Rameshwar Singh had two wives, (i) Ram Sakhi,
and (ii) Dhaneshwari Devi. From the first wife Ram Sakhi Ramesh war 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 Rajkumar. The family had substantial landed property. G
A suit for partition was filed by Suresh Prasad and his two sons, Ranjan and
Rajkumar (referred to as 'Group-I' for the sake of convenience) impleading
Rameshwar Singh and Dhaneshwari Devi as defendants I 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 H
824 SUPREME COURT REPORTS [2003) I S.C.R.

· A 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. I sets out full
description of the property which Group- I got in the share. Schedule No. 2
B 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 ofGroup-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
C 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
pc~session 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
D terms of the decree d.ated 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 paper 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.
E
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. I 979. Rameshwar
Singh and Dhaneshwari Devi of Group-2 gifted their right, title and interest
F 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.

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,
G 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 y
year in 3 rooms alongwith latrine and bathroom which is towards' southern
portion and one room towards northern portion. The compromise decree
H further recited that if they (i.e. Group-3) could not construct their own house
RENU DEVI v. MAHENDRA SINGH [R.C. LAHOTI. J.) 825

within a year than they would continue to reside in that part of the house A
but subject to payment of monthly rent to Group-2 (i.e. defendants No. I and
2 in the partition suit) calculated at the prevalent rate of rent minus Rs. 10.

Subsequent to the passing of the final decree three suit came to be filed.
Title Suit No. 191180 came to be filed by Dilip Slo Mahendra Singh laying
challenge to the compromise decree. Title Suit No. 112179 was filed by Renu B
)' Devi, Ranjan and Rajkumar (herein after called 'the plaintiffs-appellants')
seeking possession over 4 rooms alongwith latrine and bathroom which had
cm1tinued in possession of Mahendra Singh and his sons (hereinafter called
'the defendants-respondents') under the compromise decree. The plaintiffs-
appellants claimed title over the suit property under the decrees dated 13.2.1978 C
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:i3!84 and Title Appeal No. 129188 arising out of Eviction suit No. 112/ D
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 Slo Mahendra Singh has been dismissed
and the dismissal of his suit upheld in Title Appeal No. 132188. Dilip S/o E
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. The appellate decree in Money Appeal No. 121
88 and Title Appeal No. 120188 were put in issue by filing second appeals
by Mahendra Singh and his sons. The High Court has by its impugned common
-+ judgment dated 23.6.98 delivered in the two appeals allowed the appeals and F
' directed the eviction suit as also the rent suit to be dismissed. The singular
ground on which the High Court has proceeded is that Rameshwar Singh and
Dhaneshwari Devi acquired their separate title in the joint property only by
the final decree dated 24.5.1979 and therefore they were legally incompetent
to gift their property by the deed dated 22.3.1979 so as to transfer title to the
donees inasmuch as before 24.5.1979 the date of the final decree they did not G
have any title in the property. In these appeals by special leave filed by Renu
Devi and her two sons it is the legality of the abovesaid findings arrived at
by the High Court which is to be examined.

For the reasons stated hereinafter, we find it difficult to sustain the H
826 SUPREME COURT REPORTS [2003) I S.C.R.

A judgment and decree and the reasoning assigned by the learned Single Judge
of the High court.

In a suit for partition of property or s~parate possession of a share
therein Order XX Rule 18 of the CPC contemplates decree to be passed in
the following terms.
B
"Order XX Rule 18.

Decree in suit for partition ofproperty or separate possession of
a share therein. - Where the court passes a decree for the partition of
prope1ty or for the separate possession of a share therein, then,-
c (I) if and in so far as the decree relates to an estate assessed to the
payment of revenue to the Government, the decree shall declare
the rights of the several parties interested in the property, but
shall direct such partition or separation to be made by the Collector,
or any gazetted subordinate of the Collector, deputed by him in
D this behalf, in accordance with such declaration and with the
provisions of Section 54;

(2) if and in so far as such decree relates to any other immovable
property or to movable property, the Court may, if the partition
., .
or separation cannot be conveniently made without further inquiry,
E pass a preliminary decree declaring the rights of the several parties,
interested in the property and giving such further directions as
may be required."

A preliminary decree declares the rights or shares of parties to the
partition. Once the shares have been declared and a further inquiry still
F remains to be done for actually partitioning the property and placing the
parties in separate possession of divided property then such inquiry shall be
held and pursuant to the result of further inquiry a final decree shall be
passed. A preliminary decree is one which declares the rights and liabilities
of the parties leaving the actual result to be worked out in further proceedings.
G Then, as a result of the further inquiries conducted pursuant to the preliminary
decree the rights of the parties are finally determined and a decree is passed
in accordance with such detennination, which is, the final decree. (See : CPC
by Mulla Vol. I, 1995 Edn., page 21). 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
H conducted pursuant to the directions made in the preliminary decree which
RENU DEVI v. MAHENDRA SINGH [R.C. LAHOTI, J.] 827

inquiry having been conducted apd the rights of the parties finally determined A
a decree incorporating such determination needs to be drawn up which is the
final decree.

In the case at hand, a perusal of the decree dated 13.2.1978 and the
contents of the compromise application with the three schedules of properties
annexed thereto shows that the property was partitioned by metes and bounds; B
not only the shares but the property actually falling to the share of each of
the 3 groups were actually defined and given to the party entitled thereto.
The decree dated I 3.2.1978 demarcates the properties forming subject matter
of partition by metes and bounds. For all practical purposes the decree dated
13.2.1978 was a final decree. Under order XX Rule 18 of the CPC it is not C
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 which are based on compromise. The present one is such a case. D
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 E
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
132.1978 was not.

The learned counsel for the appellants has invited our attention to a
Division Bench decision of the Patna High Court in Raghubir Sahu v. Ajodhya F
+ Sahu and Ors., AIR 32 (1945) Patna, 482 wherein the learned Judges have
held:

"In the present case, the decree was passed on compromise. It
was admitted that by the compromise, the properties allotted to the
share of each party were clearly specified and schedules of properties G
allotted to each were appended to the compromise petition. Therefore,
no further inquiry was at all necessary. In such circumstances, the
decree did not merely declare the rights of the several parties interested
in the properties but also allotted the properties according to the
respective shares of each party. Therefore, it was not a preliminary H
828 SUPREME COURT REPORTS (2003] I S.C.R.

A decree but it was the final decree in the suit. A compromise decree
in a partition suit allotting specific parcels to the parties is a final
order for effecting partition : 9 Luck 270. There being already a final
decree, the only thing that remained to be done was to engross it on
a stamped paper under Article 45, Stamp Act, 1889. The decree to be
engrossed on the stamp will bear the date of the decree, 17th
B December, 1921, and will declare the position of the parties in respect
of the properties on that date. There is not time limit prescribed by
the statute for the engrossment of a partition decree on stamp of
requisite value. In fact no date was fixed by the Court for the purpose.
Therefore, mere engrossment of the decree on stamped paper of the
-
c requisite value will not in any way affect the interest of the parties
in respect of the properties though, changes may have taken place in
regard to the properties since the decree was made on 17th December,
1921. The only effect of engrossment of the decree on stamped paper
would be that it will be rendered legally effective which it is not until
so engrossed."
D
In our opinion, the law has been correctly stated by the Division Bench
of the Patna High Court. The learned counsel for the appellants also relied
on a Special Bench (3 Judges) decision of the Chief Court ofOudh in Muzaffar
Husain v. Shara/at Husain and Ors., AIR (1933) Oudh, 562 which in turn )' .
E 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 Comt. The decree dated 13.2.1978 being a decree
effecting partition by metes and bound ought to have been engrossed on
F 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
G 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 ,
H 22.3.1979.
RENU DEVI v. MAHENDRA SINGH [R.C. LAHOTI, J.) 829

There is yet another aspect of the matter. Assuming it for a moment A
that on 22.3.1979 the donors had not actually acquired title to the propeny
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 propeny
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 B
a clear and complete title in the same property which they had gifted on
22.3.1979. On the principle of the feeding the grant by estoppel the subsequent
acquisition of title under the decree dated 24.5.1979 shall ensure 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 C
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 cf
~-
equity stands statutorily recognised in India by Section 43 of the Transfer of
Propeny 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 D
the doctrine and its statutory recognition in India Law.

The rule of feeding the estoppel, as recognized in English law and set
out in Rajapakse v. Fernando, (1920) AC 892, 897 is, 'where a grantor has
purponed to grant an interest in land which he did not at the time possess,
but subsequently acquires, the benefit of his subsequent acquisition, goes E
automatically to the earlier grantee, or as it is usually expressed, feeds the
estoppel.' Mu Ila states in the work on Transfer of Property Act (Ninth Edition,
2000, at p. 310). The Principle is based panly on the common law doctrine
of estoppel by deed and partly on the equitable doctrine that a man who has
promised more than he can perform must make good his contract when he F
acquires the power of performance. In Tilakdhari Lal v. Khedan Lal, Lord
Buckmaster stated the rule of estoppel by deed as follows-

"If a man who has no title whatever to property grants it by a
conveyance which in form would carry the legal estate, and he
subsequently acquires an interest sufficient to satisfy the grant, the G
estate, the instantly passes".

f 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 propeny, H
830 SUPREME COURT REPORTS (2003) I S.C.R.

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 treates that as done which
ought to be done. The doctrine may not apply if the deed of transfer itself
was invalid or ifthe third party has acquired title bona fide, for consideration
and without notice. In the present case the execution and registration of deed
B 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 Dhaneswari Devi have denied there 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,
C 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
D 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.

Shri S.B. Upadhaya, the learned counsel for the respondents placed
E reliance on four decisions of this Court in his effort at defending the judgment
of the High Court which decisions we propose to refer only in fairness to
him. In Nach/appa Chettiar v. Subramaniam Chettiar, [1960) 2 SCR, 209 it
was held that by a preliminary decree the suit is not terminated till a final
decree passed and in-between the Court has jurisdiction to make an order of
F reference under Section 21 of the Arbitration Act, 1940. In Gajanan Krishnaji
Bapat and Anr. v. Dattaji Raghobaji Meghe and Ors., [1995) 5 SCC, 347 it
was held that a preliminary decree being merely declaratory decree it is the
final decree which is executable and limitation for execution runs from the
date of final decree. In Shanker Ba/want lokjhande (dead) by lrs. v.
Chandrakant Shanker Lokhande and Anr., [ 1995] 3 SCC, 413 it was held the
G final decree works out and finalises the rights and interests declared by the
preliminary decree. In Ml. Subbaraya Setty (dead) by lrs. and Ors. v. M.l.
Nagappa, Setty (dead) by lrs. and Ors., [2002) 4 SCC, 743 it was observed
that the actual partition is effected by passing of the final decree and therefore
the valuation of the property to be taken into consideration is the one as on -
H the date of final decree. None of the decisions deals with a situation as has arisen
RENU DEVI v. MAHENDRA SINGH [R.C. LAHOTI. J.] 831

in the present case nor with the question of law arising for decisign herein. A
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 B
related, we leave the parties to bear the costs as incurred throughout.

N.J. Appeals allowed.