Chloride & Excide Batteries (Eastern) Ld. v. Smt. Uma Wati

T.P.S Chawla, J.:— This second appeal under section 39 of the Delhi Rent Control Act 1958 poses a neat question of law. Does a final decree for Partition of property confer title to individual shares from the day on which it is drawn up and signed, or, retrospectively, from the date of the judgment? Seeing that suits for partition are so frequent, this question, one would imagine, must have arisen numerous times; yet surprisingly there is no exact authority. The relevant facts are as follows.

2. In 1958, Chloride and Exide Batteries (Eastern) Limited obtained from Mool Chand Rastogi a lease of the first floor of the house at 125 Sunder Nagar, New Delhi, with a garage and two servant quarters. The premises were taken for use as a residence by the Area Manager of the company.

3. In 1971, Ashok Kumar, the minor son of Mool Chand Rastogi, instituted a suit on the original side of this court for partition of various joint properties, including the house at Sunder Nagar. That suit was compromised on 21st December 1971 and a decree was passed accordingly. Under that decree, Uma Wati, the wife of Mool Chand Rastogi, was to become the owner of the first floor, garage and two servant quarters let to the company. However, the decree was not drawn up and signed, until the events I will presently mention, because the necessary stamp duty was not furnished.

4. By a notice dated 3rd September 1972, Uma Wati terminated the lease of the company. On 20th October 1972, she filed a petition before the Rent Controller seeking an order for recovery of possession under section 14 (1) (e) of the Delhi Rent Control Act 1958. She pleaded that the premises were required by her as a residence for herself and the members of her family dependent on her, and she had no other reasonably suitable residential accommodation. It was stated in the petition that the premises had fallen to her share by virtue of the ‘partition decree dated 21st December 1971’.

5. The company opposed the petition on many grounds. In particular, they disputed that Uma Wati was the owner or ‘landlord’ of the premises. They pleaded that their landlord was Mool Chand Rastogi

6. After evidence had been recorded in the case, arguments were heard on 13th August 1974. On behalf of Uma Wati, a certified copy of the judgment dated 21st December 1971, passing the decree for partition, had been exhibited in evidence. Counsel for the company contended that as the decree for partition had not been produced, it could not be held that title to the premises had vested in Uma Wati. A request was then made by her counsel for an adjournment as he wished to move an application for leave to adduce further evidence. The request was granted. Promptly, the requisite stamp duty was then filed in this court and the partition decree was drawn up and signed. On the next date before the Rent Controller, 23rd September 1974, an application was moved on behalf of Uma Wati for tendering a certified copy of the decree in evidence. The application was opposed by the company, but the certified copy of the decree was allowed to be tendered in evidence, and was exhibited.

7. Thereafter, by an order dated 22nd March 1975, the Rent Controller decided the case. He held that Uma Wati did bona fide require the premises for use as a residence for herself and members of her family and had no other reasonably suitable residential accommodation available to her. Nevertheless, he dismissed the petition on the ground that when the notice terminating the lease had been given, and the petition for recovery of possession was filed, the title to the premises had not vested in Uma Wati as the decree for partition had not been drawn up and signed.

8. On appeal by Uma Wati, the Rent Control Tribunal reversed the order of the Rent Controller and made an order for recovery of possession. The Tribunal agreed with the Rent Controller that Uma Wati needed the premises for residential purposes. As to the point about ownership, the Tribunal held that when a decree for partition is drawn up and signed it ‘relates back’ to the date of judgment by ‘operation of law’, and hence Uma Wati was the owner when notice terminating the lease was given, and the petition for recovery of possession was filed.

9. The company has filed this second appeal. Since there are concurrent findings of fact that Uma Wati bona fide requires the premises for use as a residence, no argument was addressed on that point. The only question canvassed before me is as to the date from which Uma Wati became the owner. And, that is the question with which I will now deal.

10. Uma Wati's claim to the ownership of the premises rests entirely on the decree for partition. She does not claim to have acquired owner ship in any other way. The definition of an ‘Instrument of partition’ in section 2 (15) of the Indian Stamp Act 1899 includes ‘a final order for effecting a partition passed by...... any Civil Court’. It is settled law that a decree for partition must be engrossed on non-judicial stamp paper, like any other instrument of partition.

11. Now, if an instrument chargeable with duty is not duly stamped, section 35 of the Stamp Act enjoins that it shall not be admitted in evidence for any purpose' or ‘be acted upon, registered or authenticated’. But, in general, if the proper duty and a penalty are paid this disability is removed, except in the case of three kinds of instruments with which I am not concerned: see section 35 proviso (a) and section 42 (2). Thereafter, the position is as if the instrument had been duly stamped in the first place. It has effect from the date it would have done if duly stamped. The Stamp Act is merely concerned with levying its toll: it has no effect on the date from which an instrument operates. For the present purpose it can, therefore, be laid aside.

12. The provision of law which directly bears on the point in order 20 rule 7 of the Code of Civil Procedure 1908. It says that:

‘The decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.’

Antedating a document is a forgery under the First clause of section 454 of the Indian Penal Code. Yet, that is what this rule requires the Judge to do. There are good reasons and some history behind the rule.

13. In English law the procedure equivalent to the drawing up of a decree is the ‘drawing up and entry’ of a judgment. The current English practice as regards this matter is described in Order 42 rules 5, 6 and 7 of the Rules of the Supreme Court 1965: see Supreme Court Practice 1973. It all originated in the distant past in the desire to preserve a record of the judgment. ‘Enter’ means to ‘enrol’ or ‘to inscribe upon the records of a Court or upon an official list’: see Wharton's Law Lexicon. In Holtby v. Hodgson, (1890) 24 Q.B.D 103, (1) Lord Esher said: ‘Pronouncing judgment is not entering judgment; something has to be done which will be record, and so the judgment that the judge has pronounced is the judgment which is entered’.

14. The drawing up of a judgment is ‘a merely ministerial act’: see Guardians of West Ham v. Churchwardens of Bethnal Green, (1895) 1 Q.B.D 662 (2). Likewise, a decree: see Harish Kumar Bapalal v. Chhanalal Ranchhodlal and others, AIR 1966 Gujarat 281 (3). But the performance of this Ministerial act is inevitably delayed, and that can cause prejudice to either party. The maxim actus curiae neminem gravabit (An act of the Court shall prejudice no one) demands that a remedy be found. Accordingly, Order 20 rule 7 of the Civil Procedure Code neutralises the delay: see Sri Ramachandra Mardaray Deo v. Bhalu Patnaik and others, AIR 1950 Orissa 125, 129, 133 (4).

15. Moreover, if the decree were to bear a date different to that of the judgment, problems could well arise as to the date from which the decision of the court was to have effect. By enforcing synchronicity between the judgment and the decree, Order 20 rule 7 obviates such questions. These are the various considerations which underlie that rule.

16. It is plain that the rule creates a fiction. Since the decree is required to bear the same date as the judgment, it must be deemed to have been passed on the same day. All the consequences ensuing from this fiction must be accepted without demur. As Lord Asquith said in East End Dwellings Co., Ltd. v. Finsbury Borough Council, (1951) 2 AER 587: (5)

‘If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it...... The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit one's imagination to boggle when it comes to the inevitable corollaries of that state of affairs.”

17. In Holtby's case, whilst expounding the English rule resembling Order 20 rule 7, Lord Esher said that ‘from the moment when the judge has pronounced judgment, and entry of the judgment has been made, the judgment is to take effect, not from the date of entry, but from the date of its being pronounced; it is an effective judgment from the day when it is pronounced by the judge in court’. There is no reason why this statement of the legal position after entry of the judgment has been made', should not also hold with regard to a decree under the Civil procedure Code. Whatever the position may be at an earlier point of time, after the decree has been drawn up and signed the statutory fiction must prevail.

18. Giving full effect to the fiction in the present case, the conclusion follows, that after the partition decree was drawn up and signed, Uma Wati must be deemed to be the owner as from the date of the judgment, that is, 21st December, 1971. So, in the eye of law, she was the owner when the notice was given and the petition was filed. If one were looking at the matter before the decree was drawn up and signed the answer would no doubt have been different. But, when the Rent Controller decided the case the decree already existed. Therefore, he had no option but to make inferences in accord with Order 20 rule 7.

19. Counsel for the company cited some cases to refute this line of reasoning. No doubt in Jotindra Mohan Tagore v. Bejoy Chand Mahatap, ILR 32 Calcutta 483 (6), it was held that a suit for partition remains pending until the court signs the final decree, and an order directing a party to be added can be made in such a suit before it has actually terminated. I accept these propositions, but they have nothing to do with the situation which arises after the decree has been signed. That distinction is crucial and furnishes the key to the cases. It also explains Probhat Kumar Mukherjee v. Santi Ranjan Banerjee, AIR 1957 Calcutta 375 (7), in which it was held that the title to a property is not acquired until a partition decree is engrossed and signed. That case, though the facts are very similar, is the converse of the present one because when the suit for ejectment against the tenant was decided no partition decree existed. Hence, it was rightly held that the title remained with the plaintiff and had not passed to his mother under the compromise order of partition, as the tenant there contended. The case throws no light on the position resulting after the signing of the decree.

20. I am unable to see the relevance of Board of Revenue, Madras v. Moideen Rowther and others, AIR 1956 Madras 207 (8). It holds that the court has no power to draw up a partition decree on plain paper and then impound it. No such question arises in the case before me.

21. The statement in Pandivi Satyanandam and others v. Paramkusam Nammayya and another, AIR 1938 Madras 307 (9), with reference to a partition decree, that ‘There is no provision of law which could validate this decree with retrospective effect’ was patently made per incuriam. Throughout the judgment there is no mention of Order 20 rule 7 of the Civil Procedure Code, and the whole discussion is confined to some provisions of the Stamp Act.

22. In Gopi Mal v. Vidya Wanti etc., AIR 1942 Lahore 260 (FB) (10), an arbitrator's award partitioning certain properties was made a rule of the court. Due to some misunderstanding it was not realised that the decree was for partition, and so it was drawn up and signed on plain paper. An application for execution was filed and considerable proceedings occurred thereon. At quite a late stage the objection was raised that the decree could not be acted upon. The unstamped decree was then impounded, and the appropriate stamp duty and penalty were paid. Nonetheless, the trial court held that ‘the decree could not be enforced by means of the present application for execution’ and directed that it be struck off. The questions arising in the appeal were referred to a Full Bench. At the end of his leading judgment, Dalip Singh, J., said:

‘I, therefore, consider that the position really is this: There was no lack of inherent jurisdiction in the executing Court to act upon the decree, but there was an illegality or error affecting its jurisdiction in proceeding to act upon a decree which the statutory bar provided by S. 35, Stamp Act, forbade it from doing. It is true, or might be true, that once the ‘proper stamp was supplied, the validity of the decree would date back to the date of the decree and therefore the execution application instead of being struck off might proceed as from that date. But this would not validate the proceedings that had taken place before the proper stamp was supplied. Those proceedings would still be without jurisdiction in the sense that the Court was barred by statute from proceedings in the way it did without a proper stamp and therefore the proceedings were without any legal justification.’

Counsel for the company placed great reliance on the sentence: ‘But this would not validate the proceedings that had taken place before the proper stamp was supplied’, and also the sentence which follows. By parity of reasoning, he said, the notice sent by Uma Wati, her petition for recovery of possession, and the proceedings before the Rent Controller till the time that the stamp duty was paid and the partition decree was drawn up and signed by the High Court were invalid.

23. With respect, I have to say that, in my opinion, the last two sentences in the quotation from the judgment of Dalip Singh, J., are erroneous. They contradict the preceding sentence where it is said ‘that once the proper stamp was supplied, the validity of the decree would date back to the date of the decree and therefore the execution application, instead of being struck off might proceed as from that date’. They also fail to give full effect to the fiction established by Order 20 rule 7, which provides the implied basis for the earlier sentence.

24. This criticism is fortified by the observations of Bind Basni Prasad, J., in Ganesh Prasad v. Mt. Makhna and another, AIR 1948 Allahabad 375 (11). He, too, did not agree with those two sentences in the judgment of Dalip Singh, J., and said:

‘I am of opinion that when by the supply of the requisite stamp the validity of the decree dates back to the date of the decree, the validity of the execution proceedings under that decree taken prior to the supply of the requisite stamp can hardly be questioned. The payment of the stamp duty in the present case validated not only the ‘decree, but also the proceedings taken thereunder. This view hardly admits of any argument.’

I entirely agree with that statement of the law, and it applies most aptly to the present case.

25. The cases cited by counsel for Uma Wati illustrate various corollaries drawn by the courts from Order 20 rule 7. For the purpose of computing periods of limitation the date of the decree is always taken to be the same as that of the judgment: see Venkataraya Goundan v. Mallappa Goundan and others; AIR 1946 Madras 348 (12); Sri Ramachandra Mardaray Deo v. Bhalu Patnaik and others, AIR 1950 Orissa 125 and Suratsing Chandanmal Oswal v. Gulabchand Lachmandas Pardesi, AIR 1963 Bombay 263 (13). If, by an amendment of the law made between the date of judgment and the day on which the decree is signed the forum of appeal against the decree is changed, it is the law existing on the date of the judgment that determines the forum of appeal as that is the date the decree will be made to bear: see Chandra Nath Ghosh and others v. Rajani Kanta Ghosh and another, AIR 1960 Calcutta 85 (14). For the same reason the right to apply for execution ‘commences from the date of the judgment’ even if the decree has not been prepared: see Jagdeo Sao and others v. Basudeo Narain Singh and others, AIR 1954 Patna 92 (15); Siri Ram and others v. Jagan Nath and others, A.I.R 1957 Punjab 65 (16). In legal conception the decree is passed and exists as soon as judgment is pronounced though the formal drawing up and signing is later: see Hardit Singh Obra…Petitioner v. Daljit Singh…, 1975 PLR (Delhi) 213 (17); Rajeshwar Rai and others v. Shankar Rai and others, AIR 1962 Patna 398 (18) and Bai Vasanti Wd/o. Patel Ishvarlal, Chimanlal v. Suryaprasad Ishvarlal Patel, AIR 1969 Gujarat 152 (19). This is really apparent from section 33 of the Civil Procedure Code which says that ‘on such judgment a decree shall follow’. In consonance with this theory, satisfaction of a decree may be recorded even before it is formally drawn up and signed: see Giribala Dasi v. Biswambhal Haldar, AIR 1924 Calcutta 1064 (20).

26. Of course, none of these cases decides the point I have had to consider. But, by example they corroborate the conclusion I have reached.

27. For these reasons I agree with the Rent Control Tribunal that Uma Wati must be deemed to be the owner of the premises as from 21st December 1971, and dismiss the appeal. As there were one or two cases which lent colour to the submissions made on behalf of the company, and with which I have disagreed, I will make no order as to costs.

Appeal dismissed.