Since defendant No.1 having no pre-existing right in the
property, therefore, right was allegedly conferred upon defendant
No.1 by way of decree dated 13.06.1995. Any right created for the
first time in respect of property worth more than Rs.100/- was legally
required to be registered. An effort was made by learned counsel for
the respondents to segregate the analogy of Bhoop Singh case
(supra) in the light of observations made in S. Noordeen Vs. V.S.
Thiru Venkita Reddiar, 1996(1) RRR 750 and Som Dev and
others Vs. Rati Ram and another, 2006(4) RCR (Civil) 303. It was
contended that a compromise decree does not require registration
unless decree involves any immovable property valued above
Rs.100/-. Having considered the aforesaid submission in the light of
facts of the present case, particularly observations made by the
Hon’ble Apex Court in remand order, this Court deems it appropriate
to answer third substantial question of law in favour of the plaintiffsappellants.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3938 of 2004(O&M)
Date of Decision-11.01.2017
Hari Ram V Madan Lal
CORAM:- MR. JUSTICE RAJ MOHAN SINGH
Citation: AIR 2017 P&H 69
[1]. Vide order dated 27.08.2015, the Hon’ble Supreme Court
has remanded this case to this Court for re-consideration of the
matter after framing the substantial questions of law and decide the
same after hearing the parties within a specified period.
[2]. This regular second appeal was filed by the plaintiffsappellants
against the concurrent judgments and decrees passed by
the Courts below, dismissing the suit for declaration filed by the
plaintiffs.
[3]. Plaintiffs filed a suit for declaration to the effect that the
plaintiffs were owners in possession of 1/4th share in the land
measuring 118 kanals, 3 marlas situated in the revenue estate of
village Barawas, Tehsil and District Mohindergarh in addition to the
shares recorded in their favour in the revenue record. Civil Court
decree date 13.06.1995 in Civil Suit No.234 dated 13.06.1995 titled
as Madan Lal Vs. Smt. Moharli was claimed to be illegal, fraudulent
and not binding upon the rights of the plaintiffs. Dungar Singh was
the original owner. He had two sons namely Khem Chand and
Ganeshi. Khem Chand had three sons Chhaju Ram, Matadeen and
Ram Kumar (plaintiffs), whereas Ganeshi was survived by his widow
Moharli (defendant No.2).
[4]. Plaintiffs alleged that defendant No.2 had inherited the
suit property from her husband Ganeshi who in turn inherited the
same from his father Dungar Singh. Suit property was ancestral
property. Plaintiffs and defendant No.2 formed a joint Hindu family.
Defendant No.2 being widow was living with the plaintiffs and they
were looking after her. Plaintiffs were cultivating the suit property.
Defendant No.1 was the son of real sister of defendant No.2.
Defendant No.1 in his endeavour got a civil Court decree dated
13.06.1995 suffered by defendant No.2. The said decree was
claimed to be fraudulent and not binding upon the rights of the
plaintiffs. It was claimed that defendant No.2 never engaged any
Lawyer, nor defendant formed any joint Hindu family. Judgment and
decree was not registered and was sought to be set aside in the
suit.
[5]. Defendant No.1 contested the suit and claimed that the
decree was validly executed by defendant No.2. The allegations in
the plaint were denied. It was claimed that defendant No.2 was
living with defendant No.1 as he was real sister’s son of defendant
No.2. Defendant No.2 was being looked after by defendant No.1
and defendant No.2 suffered the decree voluntarily in favour of
defendant No.1. The cultivating possession of the plaintiffs over the
suit property was denied. Defendant No.2 inherited the property
from her husband as absolute owner and thereafter, suffered the
decree in favour of defendant No.1. Defendant No.2 also contested
the suit and asserted that she was living with defendant No.1 who
was looking after her. The decree was claimed to be voluntarily
executed in favour of defendant No.1. Other allegations of the
plaintiffs were denied.
[6]. After completion of pleadings, both the parties went to
trial on the following issues:-
“1. Whether the plaintiffs are owner in possession to the
extent of 1/4th share in the suit property in addition to their
own share, if so, to what effect? OPP
2. Whether the judgment and decree dated 13.06.1995
passed in Civil Suit No.234 of 1995 are illegal, based
upon fraud, mis-representation and are liable to be set
aside? OPP
3. Whether the suit is not maintainable in the present
form? OPD
4. Whether the plaintiffs have no cause of action to file
the suit? OPD
5. Whether the plaintiffs have no locus standi to file the
suit? OPD
6. Whether the plaintiffs are estopped by their own act
and conduct from filing the suit? OPD
7. Whether the suit is liable to be dismissed with special
costs? OPD
8. Relief.
[7]. Both the parties led their respective evidence. Plaintiffs
got examined Chhaju Ram as PW 1 who reiterated the relationship
of the plaintiffs with Dungar Singh. He asserted that Ganeshi was
his uncle. Defendant No.2 was living with them. Ration card of
defendant No.2 was prepared with the family of plaintiffs. Defendant
No.1 had no concern with the suit property. Defendant No.2 was
owner in possession of the share of Ganeshi after inheritance. Ramji
Lal was examined as PW 2, Laxminarain, Lambardar as PW 3,
Mohar Singh, Lambardar as PW 4 and Ramji Lal, Lambardar as
PW 5. Thereafter, statement of defendant No.2 was recorded by the
trial Court in terms of Order 10 Rule 1 CPC. Defendant No.1 did not
examine any witness in defence. No evidence was led by the
plaintiffs in rebuttal.
[8]. Trial Court decided issues No.1 and 2 against the
plaintiffs and in favour of the defendants on the premise that
defendant No.2 had herself admitted that she had voluntarily without
any pressure suffered the decree in question in favour of defendant
No.1. The decree was challenged on the basis of fraud. Defendant
No.2 herself has admitted validity of decree and was absolute owner
of the same at the time of passing of the decree. Defendant No.2
was competent to alienate the property in the manner which she
liked being widow of Ganeshi. She had inherited the property from
her husband Ganeshi. Since, defendant No.2 was alive, therefore, in
the event of any fraud, she was the best person who could have
instituted the suit by giving particulars of fraud allegedly played upon
her. She had filed the written statement in which she had mentioned
that the civil Court decree was voluntarily and freely suffered by her
in favour of defendant No.1. She had also appeared before the
Court on 12.08.1995 and gave the statement in terms of Order 10
Rule 1 CPC endorsing the factum of suffering the decree in question
in favour of defendant No.1. Issues No.3 to 5 were also decided on
the basis of decision of issues No.1 and 2 and the suit was
dismissed by the trial Court vide judgment and decree dated
28.09.2002. Plaintiffs remained unsuccessful before the lower
Appellate Court who dismissed the appeal vide judgment and
decree dated 02.06.2004.
[9]. RSA No.3938 of 2004 filed by the plaintiffs in the High
Court was dismissed in limni vide order dated 15.12.2006 against
which Civil Appeal No.890 of 2008 was entertained by the Hon’ble
Supreme Court and the order passed by the High Court was set
aside and the case was remanded to the High Court for decision on
merits after framing substantial questions of law. It would be just and
appropriate to quote the observations of the Hon’ble Apex Court
while determining the matter:-
“11 By a reading of paragraphs No.15 and 16 of the
impugned judgment and decree of the first Appellate
Court, in our opinion, it has fell into an error in law in not
appreciating the facts involved in the case and applying
the ratio laid down by this Court in the case referred to
supra to the fact situations. The fact situations are totally
different upon the case on which reliance was placed by
the first Appellate Court to the facts of the present case
and the reasoning assigned by the first Appellate Court in
its judgment stating that the family settlement is in favour
of the first respondent-Madan Lal is the basis on which
the decree is passed in favour of the first defendant is not
legally correct.”
“11 That the decree passed in favour of the first
defendant was required to be compulsorily registrable
under Section 17(2) (vi) of the Registration Act that has
not been admittedly done. This important legal aspect of
the case has been omitted to be considered by the trial
Court and the first Appellate Court so also the High
Court. The non-registration of a decree passed in favour
of the first defendant is not valid in law. The reason given
by the first Appellate Court in paragraphs 15 and 16 of its
judgment that the decree in favour of the first respondent
is passed on the basis of a remote chance of succession
in a family settlement, the property could be settled upon
the defendant. Necessity of his having a remote chance
of succession as held in the case of Shakuntala Yadav
and others Vs. Yadvinder Singh and others, 1998 (2)
PLJ 547, on the basis of which much reliance is placed
to hold that the decree passed in favour of the first
respondent on the basis of a family settlement is not
required to be registered is not correct.”
“11 The second Appellate Court was required to
examine this aspect of the case. As it is a substantial
question of law which fell for consideration under Section
100 CPC, as could be seen, the impugned judgment
passed by the High Court is simply concurred with the
finding of fact concurred with by the first Appellate court
in its judgment in exercise of its appellate jurisdiction and
it had not adverted to the substantial question of law with
respect to compulsory registration of a decree in favour
of the first defendant and the consequences for nonregistration
of a decree under Section 17(2) (vi) of the Act
and the law laid down by this Court in the case of Bhoop
Singh Vs. Ram Singh Major and others, (1995) 5 SCC
709 is not applied to the case on hand, which rendered
the impugned judgment and decree bad in law.”
[10]. Apparently, the Hon’ble Apex Court in the aforesaid order
has commented upon the decree under challenge in the suit which
was legally required to be compulsorily registered under Section
17(2) (vi) of the Registration Act. Secondly, remote chance of
succession as held in Shakuntala Yadav and others case (supra)
was also required to be re-appreciated as the view taken by the
lower Appellate Court was not found to be correct. This issue was
considered to be a substantial question of law.
[11]. In view of aforesaid, this Court finds the following
substantial questions of law which arise for consideration of this
Court:-
“1. Whether Civil Court decree dated 13.06.1995 passed
in Civil Suit No.234 of 1995 based on family settlement
was legally required to be compulsorily registered under
Section 17(2) (vi) of the Registration Act?
2. Whether defendant No.1 had remote chance of
succession in a family settlement which resulted in
passing of Civil Court decree 13.06.1995?
3. Whether defendant No.1 had any pre-existing right in
the suit property or the decree itself created right in
favour of defendant No.1 for the first time which
ultimately required the same to be compulsorily
registered having conveyed immovable property of the
value of Rs.100/- or upwards?
[12]. I have heard arguments of learned counsel for the parties
and have also perused the material on record.
[13]. Learned counsel for the appellants vehemently submitted
that estate of defendant No.2 was the subject matter of dispute
between the parties. In the plaint, it was specifically recited that
defendant No.2 got the property inherited from her husband
Ganeshi and the property was ancestral property and the parties
were members of joint Hindu family. Defendant No.1 was sister’s
son of Moharli (defendant No.2). In the written statement, it was
admitted that the property was received by defendant No.2 in
inheritance of Ganeshi, but it was claimed that the same was not the
ancestral property of the parties. Defendant No.2 was claimed to be
absolute owner of the property in question.
[14]. Learned counsel highlighted that in the judgment and
decree dated 13.06.1995 (Ex.P1), there was no reference of any
family settlement, nor there was any reference of any pre-existing
right of defendant No.1. The judgment was not based on any
compromise. The evidence of the plaintiffs was closed on
06.09.2000 when learned counsel for the plaintiffs after tendering
the documents Exs.P1 to P12 and Mark A1 to Mark A3 closed the
evidence in affirmative. Defendants did not lead any evidence even
after availing six opportunities. The evidence of the defendants was
closed by order of the Court on 27.02.2001.
[15]. Learned counsel submitted that the observations of the
Hon’ble Apex Court clearly demonstrated that the Civil Court decree
dated 13.06.1995 was required to be compulsorily registered and
the observations made by the Hon’ble Apex Court has virtually
decided the fate of this case on the aforesaid aspect. Further in view
of Section 15(2) (b) of the Hindu Succession Act, the property after
the death of defendant No.2 would revert back to the legal heirs of
Ganeshi. Sister’s son would not have even remote chance of
succession. Defendant No.2 allegedly got right for the first time in
the suit property, therefore, the decree was legally required to be
registered. The plaint and the written statement of the decree dated
13.06.1995 were only marked as Mark A2 and Mark A3. Defendant
No.1 was not the part of family.
[16]. A plea of ancestral nature of property was raised in the
plaint. The plea was denied in the written statement and still no
issue was framed. There was no adjudication on the aforesaid issue
of the property being ancestral or otherwise done by the Courts
below. The plea should have been adverted to and decided in
accordance with law. The witnesses of the plaintiffs stated that they
were in possession. No witness was produced in the defence. The
evidence of the defendants was closed by order, therefore, oral
evidence of the plaintiffs went unrebutted and should have been
accepted by the Courts below.
[17]. Learned counsel emphasized that alternate relief of
injunction should have been granted in favour of the plaintiffs. There
was no issue of ancestral nature of property framed by the trial
Court. The findings recorded by the trial Court that the family
settlement would itself confer the pre-existing right in favour of
defendant No.1 in whose favour decree was passed and defendant
No.1 would have remote chance of succession in view of
Shakuntala Yadav and others case (supra) were not the correct
proposition as held by the Hon’ble Apex Court in order of remand.
[18]. Learned counsel further emphasized that in view of
remand order, the case has to be decided afresh on all points. The
only ground taken in the written statement that defendant No.1 was
the sister’s son of defendant No.2 and no other relationship was
pleaded, nor any evidence was led to show any relationship in terms
of pedigree between the parties. Since issues No.1 and 2 could not
be proved in favour of defendants, therefore, issues No.3 and 4
were legally required to be decided in accordance with law. In the
event of finding the property to be ancestral, Section 14 of the Hindu
Succession Act would have no strict application and the property
would have been governed by Section 15(2)(b) of the Hindu
Succession Act. Learned counsel also by referring to an analogy of
family settlement contended that the judgments and decrees are not
focused on the point of compromise decree, rather, as per
observations of the Hon’ble Apex Court, the factum of decree should
have been appreciated in the light of its being unregistered. Learned
counsel relied upon K.T. Suresh Kumar Vs. P. Kunhappa Nair
and others, 1999(2) SCC 711 to contend that once the case was
remanded by the Hon’ble Apex Court, then the findings recorded in
the remand order are binding on the parties.
[19]. In view of stand taken by the defendants in the written
statement, learned counsel contended that proper issues should
have been framed by the trial Court on the aspect of ancestral
nature of the property and matter should have been decided on the
basis of available evidence. Learned counsel further relied upon
Chebrol Sriramalu Vs. Vakalapudi Satyanarayana, 2013(9) SCC
404, M/s Divya Exports Vs. M/s Shalimar Video Company and
others, 2011 AIR (SC) 3063 and REMCO Inds. Workers House
Bldg. Co-op. Socy. Vs. Lakshmeesha M. and others, 2003 AIR
(SC) 3167.
[20]. It was further submitted by learned counsel for the
appellants that the plea of family settlement could not be attracted
as it was necessary that the member of the family settlement should
have some antecedents title, claim or interest or even a possible
claim of property. Any alleged settlement with the strangers to the
family cannot be given colour of a valid family settlement. A question
was decided in Jagdish Vs. Rajwanti, 2008(1) RCR (Civil) 677,
whether the sister’s son would not have any antecedent title, claim
or interest in the suit property. He cannot have any claim over the
property of the plaintiffs who were successors of Ganeshi. This
Court while interpreting ratio of Bachan Singh Vs. Kartar Singh,
2002(3) RCR (Civil) 495 and Kale and others Vs. Deputy Director
of Consolidation and others, (1976) 3 Supreme Court Cases 119
held the aforesaid proposition while interpreting remote chance of
succession of sister’s son in the property left by Mausi. Learned
counsel further submitted that defendant No.1 was not member of
the family, nor was having any remote chance of succession in the
family property and there was no question of any settlement of
dispute between such a person viz-a-viz the family.
[21]. By referring to Shakuntala Yadav and others case
(supra), learned counsel contended that there could not be any
family settlement between defendants as defendant No.1 had no
remote chance of succession, nor was having any antecedents right
of succession. The ratio of Kale and others case (supra) was
explained and it was held in the facts and circumstances of that
defendant No.1 put to similar facts and
circumstances as that of Shakuntala Yadav and others case
(supra) would not have any absolute right, neither remote nor
antecedent to succeed the estate of defendant No.2.
[22]. By referring to Section 15(2)(b) of the Hindu Succession
Act, learned counsel on the strength of Joginder Singh Vs. Rulda
Singh and others, 1964 PLR 150 submitted that any property
inherited by a female Hindu from her husband shall devolve, in the
absence of any son or daughter of the deceased (including the
children of any pre-deceased son or daughter) not upon the other
heirs referred to in Sub-Section (1) in the order specified therein, but
upon the heirs of the husband.
[23]. While endorsing the findings recorded in the remand
order, learned counsel based his arguments on the ratio of Bhoop
Singh case (supra) and contended that Section 17(2) (vi) of the
Registration Act is an exception to Sub-Section (1). Sub Section 1 of
Section 17 of the Act mandates that the instrument enumerated in
Clause (a) to (c) shall be registered compulsorily if the property to
which they relate is immovable property value of which is Rs.100/-
or upwards. When the document purports to create or extinguish in
the present or in the future any right has to be registered
compulsorily. Clause (vi) of Section 17(2) of the Act relates to any
decree or order of a Court, except a decree or order expressed to
be made on a compromise or comprising immovable property other
than the subject matter of the suit. Therefore, it was the duty of the
Court to examine whether the parties have pre-existing right to the
immovable property or whether under the order or decree of the
Court one party having right agreed to extinguish and created any
right in the property of the value of Rs.100/- or upwards in favour of
other party for the first time, either by compromise or pretended
consent.
[24]. In the last, learned counsel emphasized that since the
pleadings of the decree dated 13.06.1995 in terms of plaint and
written statement were not exhibited on record by the defendants,
therefore, no benefit should have been given to them as these
documents could not be considered by the Courts adverse to the
interest of the plaintiffs.
[25]. On the other hand, learned counsel for the respondents
vehemently submitted that the Hon’ble Apex Court has only
confined the case to the issue of registration. Moharli was living with
defendant No.1, therefore, on account of love and affection, the Civil
Court decree was suffered which was based on family settlement.
The factum of family settlement was pleaded in the plaint (Mark A2)
of the Civil Court decree. The concept of family settlement relied
upon in the context of Kale and others case (supra) and the
documents Mark A2 and Mark A3 were sought to be relied as the
same were tendered by the plaintiffs themselves to which defendant
had no objection, therefore, these documents can be read in
evidence for the said purpose.
[26]. Learned counsel also emphasized that in view of
testimonies of PW 1 and PW 2. Defendant No.1 was not only
sister’s son of defendant No.2, but was related to the family of
defendant No.2 in terms of pedigree. PW 1 stated that sister of
Moharli namely Mishri was also married in the village and according
to PW 2- Ramji Lal, defendant No.1 was related to Moharli by 20
tables in pedigree. Similarly according to PW 3-Laxminarain,
Lambardar, defendant No.1 was related to defendant No.2 in 15 to
16 pedigrees. According to PW 4-Mohar Singh, Lambardar,
relationship between the defendants was 3-4 tables apart. By
quoting the aforesaid testimonies, learned counsel for the
respondents tried to project that defendant No.1 was having remote
chance of succession in the property of Ganeshi.
[27]. It was further argued that Section 15(2) of the Hindu
Succession Act would come only after the death of Moharli. Civil
Suit was filed on 03.08.1995, therefore, position was to be seen on
that day only. Moharli was alive. Plaintiffs had no right to file suit on
the said day. Trial Court and the lower Appellate Court had returned
findings under issues No.3 and 4 against the plaintiffs. Those
findings have not been challenged in the regular second appeal,
therefore, other issues would not come for consideration particularly
when locus standi was not found in favour of the plaintiffs.
Moreover, in terms of Section 34 of the Specific Relief Act,
simplicitor suit for declaration was not maintainable in terms of
proviso to Section 34 of the Act as possession was not claimed by
the plaintiffs. Learned counsel also emphasized that since no issue
was claimed by the plaintiffs, therefore, in view of waiver, no such
issue can be claimed at this stage.
[28]. In sum and substance, learned counsel for the respondents
submitted that except the aspect of registration as observed by the
Hon’ble Apex Court, this Court cannot go into other questions which
were decided by the Courts below. Defendant No.2 was absolute
owner in terms of Section 14(1) of the Hindu Succession Act. She
was held to be absolute owner under issues No.1 and 2 by the
Courts below. The concept of family was considered in Kale and
others case (supra) and was given wide connotation. The ratio of
Bhoop Singh case (supra) was confined to Civil Court decree
passed on compromise and not on account of any pre-existing right.
On the aforesaid premise, the contention raised by learned counsel
for the appellants were opposed and rebutted.
[29]. I have considered the arguments made by learned counsel
for the parties in the light of evidence and observations made by
Hon’ble Apex Court.
[30]. Evidently, the Hon’ble Apex Court has found as a matter
of fact that the Courts below have fell into error in not appreciating
the fact in issue viz-a-viz the ratio laid down in Smt. Asha Rani Vs.
The Controller of Estate Duty, 1997 (4) RCR (Civil) 210,
Shakutala Yadav and others case (supra) and Lal Singh Vs.
Jaswant Singh, 2002 (2) RCR (Civil) 219. The fact situation was
observed to be totally different in the present case. Hon’ble Apex
Court in the remand order has observed that the decree passed in
favour of defendant No.1 on the basis of family settlement was
required to be compulsorily registrable in terms of Section 17(2) (vi)
of the Registration Act and that was admittedly not done.
[31]. As per legal position, the Hon’ble Apex Court in Bhoop
Singh case (supra) summarized the position in the following
manner:-
“18. The legal position qua Clause (vi) of Section 17(2)
can, on the basis of the aforesaid discussion, be
summarized as below:
(1) Compromise decree if bona fide, in the sense that the
compromise is not a device to obviate payment of stamp
and frustrate the law relating to registration, would not
require registration. In a converse situation, it would
require registration.
(2) If the compromise decree were to create for the first
time right, title or interest in immovable property of the
value of Rs.100/- upwards in favour of any party to the
suit, the decree or order would require registration.
(3) If the decree were not to attract any of the Clauses of
sub-section (1) of Section 17, as was the position in the
aforesaid Privy Council and this Court’s cases, it is
apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of
compromise, as was the position in Lahore case, benefit
from the terms of compromise cannot be derived, even if
a suit were to be disposed of because of compromise in
question.
(5) If the property dealt with by the decree be not the
“subject matter of the suit or proceeding”, Clause (vi) of
sub-section (2) would not operate, because of the
amendment of this clause by Act 21 of 1929, which has
its origin in the aforesaid decision of the Privy Council,
according to which the original clause would have been
attracted, even if it were to encompass property not
litigated.
19. Now, let us see whether on the strength of the decree passed in
Suit No.215 of 1973, the petitioner could sustain his case, as put up
in his written statement in the present suit, despite the decree not
having been registered. According to us, it cannot for two reasons:
(1) The decree having purported to create right or title in the plaintiff
for the first time that is not being declaration or pre-existing right, did
require registration. It may also be pointed out that the first suit
cannot really be said to have been decreed on the basis of
compromise, as the suit was decree “in view of the written statement
filed by the defendant admitting the claim of the plaintiff to be
correct.” Decreeing of suit in such a situation is covered by Order 12
Rule 6, and not by Order 23 Rule 3, which deals with compromise of
suit, whereas the former is on the subject of judgment on admission.
(2) A perusal of the impugned judgment shows that the first
appellate Court held the decree in question as “collusive” as it was
with a view to defeat the right of others who had bona fide claim
over the property of Ganpat. Learned Judge of the High Court also
took the same view.”
[32]. Question No.1 has to be answered in favour of the
plaintiffs in view of observations made by Hon’ble Apex Court in
remand order coupled with observations made in Bhoop Singh
case (supra). The ratio of Ram Charan Das Vs. Girja Nandini
Devi and others, 1966 AIR (SC) 323 as referred to by learned
counsel for the respondents was explained in Kale and others case
(supra) which was further relied upon by this Court in Jagdish Vs.
Rajwanti case (supra) to explain the concept of family settlement
and the connectivity of defendant No.1 viz-a-viz defendant No.2
being sister’s son having no such remote chance of succession in
the property left by defendant No.2. The ratio of Shakuntala Yadav
and others case (supra) was also having meaningful explanation in
the aforesaid context to answer substantial question of law No.2 in
favour of the plaintiffs.
[33]. Since defendant No.1 having no pre-existing right in the
property, therefore, right was allegedly conferred upon defendant
No.1 by way of decree dated 13.06.1995. Any right created for the
first time in respect of property worth more than Rs.100/- was legally
required to be registered. An effort was made by learned counsel for
the respondents to segregate the analogy of Bhoop Singh case
(supra) in the light of observations made in S. Noordeen Vs. V.S.
Thiru Venkita Reddiar, 1996(1) RRR 750 and Som Dev and
others Vs. Rati Ram and another, 2006(4) RCR (Civil) 303. It was
contended that a compromise decree does not require registration
unless decree involves any immovable property valued above
Rs.100/-. Having considered the aforesaid submission in the light of
facts of the present case, particularly observations made by the
Hon’ble Apex Court in remand order, this Court deems it appropriate
to answer third substantial question of law in favour of the plaintiffsappellants.
[34]. Since the appeal can be adjudicated without there being
any framing of specific issue with regard to ancestral and nonancestral
nature of the property, therefore, the arguments raised by
learned counsel for the appellants with regard to framing of issue is
inconsequential.
[35]. In view of discussions having been made above, I find
that there are substantial questions of law involved for acceptance
of this appeal. Resultantly, impugned judgments and decrees
passed by the Courts below are set aside. Appeal is accordingly
allowed, decreeing the suit of the plaintiffs.
Print Page
property, therefore, right was allegedly conferred upon defendant
No.1 by way of decree dated 13.06.1995. Any right created for the
first time in respect of property worth more than Rs.100/- was legally
required to be registered. An effort was made by learned counsel for
the respondents to segregate the analogy of Bhoop Singh case
(supra) in the light of observations made in S. Noordeen Vs. V.S.
Thiru Venkita Reddiar, 1996(1) RRR 750 and Som Dev and
others Vs. Rati Ram and another, 2006(4) RCR (Civil) 303. It was
contended that a compromise decree does not require registration
unless decree involves any immovable property valued above
Rs.100/-. Having considered the aforesaid submission in the light of
facts of the present case, particularly observations made by the
Hon’ble Apex Court in remand order, this Court deems it appropriate
to answer third substantial question of law in favour of the plaintiffsappellants.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3938 of 2004(O&M)
Date of Decision-11.01.2017
Hari Ram V Madan Lal
CORAM:- MR. JUSTICE RAJ MOHAN SINGH
Citation: AIR 2017 P&H 69
[1]. Vide order dated 27.08.2015, the Hon’ble Supreme Court
has remanded this case to this Court for re-consideration of the
matter after framing the substantial questions of law and decide the
same after hearing the parties within a specified period.
[2]. This regular second appeal was filed by the plaintiffsappellants
against the concurrent judgments and decrees passed by
the Courts below, dismissing the suit for declaration filed by the
plaintiffs.
[3]. Plaintiffs filed a suit for declaration to the effect that the
plaintiffs were owners in possession of 1/4th share in the land
measuring 118 kanals, 3 marlas situated in the revenue estate of
village Barawas, Tehsil and District Mohindergarh in addition to the
shares recorded in their favour in the revenue record. Civil Court
decree date 13.06.1995 in Civil Suit No.234 dated 13.06.1995 titled
as Madan Lal Vs. Smt. Moharli was claimed to be illegal, fraudulent
and not binding upon the rights of the plaintiffs. Dungar Singh was
the original owner. He had two sons namely Khem Chand and
Ganeshi. Khem Chand had three sons Chhaju Ram, Matadeen and
Ram Kumar (plaintiffs), whereas Ganeshi was survived by his widow
Moharli (defendant No.2).
[4]. Plaintiffs alleged that defendant No.2 had inherited the
suit property from her husband Ganeshi who in turn inherited the
same from his father Dungar Singh. Suit property was ancestral
property. Plaintiffs and defendant No.2 formed a joint Hindu family.
Defendant No.2 being widow was living with the plaintiffs and they
were looking after her. Plaintiffs were cultivating the suit property.
Defendant No.1 was the son of real sister of defendant No.2.
Defendant No.1 in his endeavour got a civil Court decree dated
13.06.1995 suffered by defendant No.2. The said decree was
claimed to be fraudulent and not binding upon the rights of the
plaintiffs. It was claimed that defendant No.2 never engaged any
Lawyer, nor defendant formed any joint Hindu family. Judgment and
decree was not registered and was sought to be set aside in the
suit.
[5]. Defendant No.1 contested the suit and claimed that the
decree was validly executed by defendant No.2. The allegations in
the plaint were denied. It was claimed that defendant No.2 was
living with defendant No.1 as he was real sister’s son of defendant
No.2. Defendant No.2 was being looked after by defendant No.1
and defendant No.2 suffered the decree voluntarily in favour of
defendant No.1. The cultivating possession of the plaintiffs over the
suit property was denied. Defendant No.2 inherited the property
from her husband as absolute owner and thereafter, suffered the
decree in favour of defendant No.1. Defendant No.2 also contested
the suit and asserted that she was living with defendant No.1 who
was looking after her. The decree was claimed to be voluntarily
executed in favour of defendant No.1. Other allegations of the
plaintiffs were denied.
[6]. After completion of pleadings, both the parties went to
trial on the following issues:-
“1. Whether the plaintiffs are owner in possession to the
extent of 1/4th share in the suit property in addition to their
own share, if so, to what effect? OPP
2. Whether the judgment and decree dated 13.06.1995
passed in Civil Suit No.234 of 1995 are illegal, based
upon fraud, mis-representation and are liable to be set
aside? OPP
3. Whether the suit is not maintainable in the present
form? OPD
4. Whether the plaintiffs have no cause of action to file
the suit? OPD
5. Whether the plaintiffs have no locus standi to file the
suit? OPD
6. Whether the plaintiffs are estopped by their own act
and conduct from filing the suit? OPD
7. Whether the suit is liable to be dismissed with special
costs? OPD
8. Relief.
[7]. Both the parties led their respective evidence. Plaintiffs
got examined Chhaju Ram as PW 1 who reiterated the relationship
of the plaintiffs with Dungar Singh. He asserted that Ganeshi was
his uncle. Defendant No.2 was living with them. Ration card of
defendant No.2 was prepared with the family of plaintiffs. Defendant
No.1 had no concern with the suit property. Defendant No.2 was
owner in possession of the share of Ganeshi after inheritance. Ramji
Lal was examined as PW 2, Laxminarain, Lambardar as PW 3,
Mohar Singh, Lambardar as PW 4 and Ramji Lal, Lambardar as
PW 5. Thereafter, statement of defendant No.2 was recorded by the
trial Court in terms of Order 10 Rule 1 CPC. Defendant No.1 did not
examine any witness in defence. No evidence was led by the
plaintiffs in rebuttal.
[8]. Trial Court decided issues No.1 and 2 against the
plaintiffs and in favour of the defendants on the premise that
defendant No.2 had herself admitted that she had voluntarily without
any pressure suffered the decree in question in favour of defendant
No.1. The decree was challenged on the basis of fraud. Defendant
No.2 herself has admitted validity of decree and was absolute owner
of the same at the time of passing of the decree. Defendant No.2
was competent to alienate the property in the manner which she
liked being widow of Ganeshi. She had inherited the property from
her husband Ganeshi. Since, defendant No.2 was alive, therefore, in
the event of any fraud, she was the best person who could have
instituted the suit by giving particulars of fraud allegedly played upon
her. She had filed the written statement in which she had mentioned
that the civil Court decree was voluntarily and freely suffered by her
in favour of defendant No.1. She had also appeared before the
Court on 12.08.1995 and gave the statement in terms of Order 10
Rule 1 CPC endorsing the factum of suffering the decree in question
in favour of defendant No.1. Issues No.3 to 5 were also decided on
the basis of decision of issues No.1 and 2 and the suit was
dismissed by the trial Court vide judgment and decree dated
28.09.2002. Plaintiffs remained unsuccessful before the lower
Appellate Court who dismissed the appeal vide judgment and
decree dated 02.06.2004.
[9]. RSA No.3938 of 2004 filed by the plaintiffs in the High
Court was dismissed in limni vide order dated 15.12.2006 against
which Civil Appeal No.890 of 2008 was entertained by the Hon’ble
Supreme Court and the order passed by the High Court was set
aside and the case was remanded to the High Court for decision on
merits after framing substantial questions of law. It would be just and
appropriate to quote the observations of the Hon’ble Apex Court
while determining the matter:-
“11 By a reading of paragraphs No.15 and 16 of the
impugned judgment and decree of the first Appellate
Court, in our opinion, it has fell into an error in law in not
appreciating the facts involved in the case and applying
the ratio laid down by this Court in the case referred to
supra to the fact situations. The fact situations are totally
different upon the case on which reliance was placed by
the first Appellate Court to the facts of the present case
and the reasoning assigned by the first Appellate Court in
its judgment stating that the family settlement is in favour
of the first respondent-Madan Lal is the basis on which
the decree is passed in favour of the first defendant is not
legally correct.”
“11 That the decree passed in favour of the first
defendant was required to be compulsorily registrable
under Section 17(2) (vi) of the Registration Act that has
not been admittedly done. This important legal aspect of
the case has been omitted to be considered by the trial
Court and the first Appellate Court so also the High
Court. The non-registration of a decree passed in favour
of the first defendant is not valid in law. The reason given
by the first Appellate Court in paragraphs 15 and 16 of its
judgment that the decree in favour of the first respondent
is passed on the basis of a remote chance of succession
in a family settlement, the property could be settled upon
the defendant. Necessity of his having a remote chance
of succession as held in the case of Shakuntala Yadav
and others Vs. Yadvinder Singh and others, 1998 (2)
PLJ 547, on the basis of which much reliance is placed
to hold that the decree passed in favour of the first
respondent on the basis of a family settlement is not
required to be registered is not correct.”
“11 The second Appellate Court was required to
examine this aspect of the case. As it is a substantial
question of law which fell for consideration under Section
100 CPC, as could be seen, the impugned judgment
passed by the High Court is simply concurred with the
finding of fact concurred with by the first Appellate court
in its judgment in exercise of its appellate jurisdiction and
it had not adverted to the substantial question of law with
respect to compulsory registration of a decree in favour
of the first defendant and the consequences for nonregistration
of a decree under Section 17(2) (vi) of the Act
and the law laid down by this Court in the case of Bhoop
Singh Vs. Ram Singh Major and others, (1995) 5 SCC
709 is not applied to the case on hand, which rendered
the impugned judgment and decree bad in law.”
[10]. Apparently, the Hon’ble Apex Court in the aforesaid order
has commented upon the decree under challenge in the suit which
was legally required to be compulsorily registered under Section
17(2) (vi) of the Registration Act. Secondly, remote chance of
succession as held in Shakuntala Yadav and others case (supra)
was also required to be re-appreciated as the view taken by the
lower Appellate Court was not found to be correct. This issue was
considered to be a substantial question of law.
[11]. In view of aforesaid, this Court finds the following
substantial questions of law which arise for consideration of this
Court:-
“1. Whether Civil Court decree dated 13.06.1995 passed
in Civil Suit No.234 of 1995 based on family settlement
was legally required to be compulsorily registered under
Section 17(2) (vi) of the Registration Act?
2. Whether defendant No.1 had remote chance of
succession in a family settlement which resulted in
passing of Civil Court decree 13.06.1995?
3. Whether defendant No.1 had any pre-existing right in
the suit property or the decree itself created right in
favour of defendant No.1 for the first time which
ultimately required the same to be compulsorily
registered having conveyed immovable property of the
value of Rs.100/- or upwards?
[12]. I have heard arguments of learned counsel for the parties
and have also perused the material on record.
[13]. Learned counsel for the appellants vehemently submitted
that estate of defendant No.2 was the subject matter of dispute
between the parties. In the plaint, it was specifically recited that
defendant No.2 got the property inherited from her husband
Ganeshi and the property was ancestral property and the parties
were members of joint Hindu family. Defendant No.1 was sister’s
son of Moharli (defendant No.2). In the written statement, it was
admitted that the property was received by defendant No.2 in
inheritance of Ganeshi, but it was claimed that the same was not the
ancestral property of the parties. Defendant No.2 was claimed to be
absolute owner of the property in question.
[14]. Learned counsel highlighted that in the judgment and
decree dated 13.06.1995 (Ex.P1), there was no reference of any
family settlement, nor there was any reference of any pre-existing
right of defendant No.1. The judgment was not based on any
compromise. The evidence of the plaintiffs was closed on
06.09.2000 when learned counsel for the plaintiffs after tendering
the documents Exs.P1 to P12 and Mark A1 to Mark A3 closed the
evidence in affirmative. Defendants did not lead any evidence even
after availing six opportunities. The evidence of the defendants was
closed by order of the Court on 27.02.2001.
[15]. Learned counsel submitted that the observations of the
Hon’ble Apex Court clearly demonstrated that the Civil Court decree
dated 13.06.1995 was required to be compulsorily registered and
the observations made by the Hon’ble Apex Court has virtually
decided the fate of this case on the aforesaid aspect. Further in view
of Section 15(2) (b) of the Hindu Succession Act, the property after
the death of defendant No.2 would revert back to the legal heirs of
Ganeshi. Sister’s son would not have even remote chance of
succession. Defendant No.2 allegedly got right for the first time in
the suit property, therefore, the decree was legally required to be
registered. The plaint and the written statement of the decree dated
13.06.1995 were only marked as Mark A2 and Mark A3. Defendant
No.1 was not the part of family.
[16]. A plea of ancestral nature of property was raised in the
plaint. The plea was denied in the written statement and still no
issue was framed. There was no adjudication on the aforesaid issue
of the property being ancestral or otherwise done by the Courts
below. The plea should have been adverted to and decided in
accordance with law. The witnesses of the plaintiffs stated that they
were in possession. No witness was produced in the defence. The
evidence of the defendants was closed by order, therefore, oral
evidence of the plaintiffs went unrebutted and should have been
accepted by the Courts below.
[17]. Learned counsel emphasized that alternate relief of
injunction should have been granted in favour of the plaintiffs. There
was no issue of ancestral nature of property framed by the trial
Court. The findings recorded by the trial Court that the family
settlement would itself confer the pre-existing right in favour of
defendant No.1 in whose favour decree was passed and defendant
No.1 would have remote chance of succession in view of
Shakuntala Yadav and others case (supra) were not the correct
proposition as held by the Hon’ble Apex Court in order of remand.
[18]. Learned counsel further emphasized that in view of
remand order, the case has to be decided afresh on all points. The
only ground taken in the written statement that defendant No.1 was
the sister’s son of defendant No.2 and no other relationship was
pleaded, nor any evidence was led to show any relationship in terms
of pedigree between the parties. Since issues No.1 and 2 could not
be proved in favour of defendants, therefore, issues No.3 and 4
were legally required to be decided in accordance with law. In the
event of finding the property to be ancestral, Section 14 of the Hindu
Succession Act would have no strict application and the property
would have been governed by Section 15(2)(b) of the Hindu
Succession Act. Learned counsel also by referring to an analogy of
family settlement contended that the judgments and decrees are not
focused on the point of compromise decree, rather, as per
observations of the Hon’ble Apex Court, the factum of decree should
have been appreciated in the light of its being unregistered. Learned
counsel relied upon K.T. Suresh Kumar Vs. P. Kunhappa Nair
and others, 1999(2) SCC 711 to contend that once the case was
remanded by the Hon’ble Apex Court, then the findings recorded in
the remand order are binding on the parties.
[19]. In view of stand taken by the defendants in the written
statement, learned counsel contended that proper issues should
have been framed by the trial Court on the aspect of ancestral
nature of the property and matter should have been decided on the
basis of available evidence. Learned counsel further relied upon
Chebrol Sriramalu Vs. Vakalapudi Satyanarayana, 2013(9) SCC
404, M/s Divya Exports Vs. M/s Shalimar Video Company and
others, 2011 AIR (SC) 3063 and REMCO Inds. Workers House
Bldg. Co-op. Socy. Vs. Lakshmeesha M. and others, 2003 AIR
(SC) 3167.
[20]. It was further submitted by learned counsel for the
appellants that the plea of family settlement could not be attracted
as it was necessary that the member of the family settlement should
have some antecedents title, claim or interest or even a possible
claim of property. Any alleged settlement with the strangers to the
family cannot be given colour of a valid family settlement. A question
was decided in Jagdish Vs. Rajwanti, 2008(1) RCR (Civil) 677,
whether the sister’s son would not have any antecedent title, claim
or interest in the suit property. He cannot have any claim over the
property of the plaintiffs who were successors of Ganeshi. This
Court while interpreting ratio of Bachan Singh Vs. Kartar Singh,
2002(3) RCR (Civil) 495 and Kale and others Vs. Deputy Director
of Consolidation and others, (1976) 3 Supreme Court Cases 119
held the aforesaid proposition while interpreting remote chance of
succession of sister’s son in the property left by Mausi. Learned
counsel further submitted that defendant No.1 was not member of
the family, nor was having any remote chance of succession in the
family property and there was no question of any settlement of
dispute between such a person viz-a-viz the family.
[21]. By referring to Shakuntala Yadav and others case
(supra), learned counsel contended that there could not be any
family settlement between defendants as defendant No.1 had no
remote chance of succession, nor was having any antecedents right
of succession. The ratio of Kale and others case (supra) was
explained and it was held in the facts and circumstances of that
defendant No.1 put to similar facts and
circumstances as that of Shakuntala Yadav and others case
(supra) would not have any absolute right, neither remote nor
antecedent to succeed the estate of defendant No.2.
[22]. By referring to Section 15(2)(b) of the Hindu Succession
Act, learned counsel on the strength of Joginder Singh Vs. Rulda
Singh and others, 1964 PLR 150 submitted that any property
inherited by a female Hindu from her husband shall devolve, in the
absence of any son or daughter of the deceased (including the
children of any pre-deceased son or daughter) not upon the other
heirs referred to in Sub-Section (1) in the order specified therein, but
upon the heirs of the husband.
[23]. While endorsing the findings recorded in the remand
order, learned counsel based his arguments on the ratio of Bhoop
Singh case (supra) and contended that Section 17(2) (vi) of the
Registration Act is an exception to Sub-Section (1). Sub Section 1 of
Section 17 of the Act mandates that the instrument enumerated in
Clause (a) to (c) shall be registered compulsorily if the property to
which they relate is immovable property value of which is Rs.100/-
or upwards. When the document purports to create or extinguish in
the present or in the future any right has to be registered
compulsorily. Clause (vi) of Section 17(2) of the Act relates to any
decree or order of a Court, except a decree or order expressed to
be made on a compromise or comprising immovable property other
than the subject matter of the suit. Therefore, it was the duty of the
Court to examine whether the parties have pre-existing right to the
immovable property or whether under the order or decree of the
Court one party having right agreed to extinguish and created any
right in the property of the value of Rs.100/- or upwards in favour of
other party for the first time, either by compromise or pretended
consent.
[24]. In the last, learned counsel emphasized that since the
pleadings of the decree dated 13.06.1995 in terms of plaint and
written statement were not exhibited on record by the defendants,
therefore, no benefit should have been given to them as these
documents could not be considered by the Courts adverse to the
interest of the plaintiffs.
[25]. On the other hand, learned counsel for the respondents
vehemently submitted that the Hon’ble Apex Court has only
confined the case to the issue of registration. Moharli was living with
defendant No.1, therefore, on account of love and affection, the Civil
Court decree was suffered which was based on family settlement.
The factum of family settlement was pleaded in the plaint (Mark A2)
of the Civil Court decree. The concept of family settlement relied
upon in the context of Kale and others case (supra) and the
documents Mark A2 and Mark A3 were sought to be relied as the
same were tendered by the plaintiffs themselves to which defendant
had no objection, therefore, these documents can be read in
evidence for the said purpose.
[26]. Learned counsel also emphasized that in view of
testimonies of PW 1 and PW 2. Defendant No.1 was not only
sister’s son of defendant No.2, but was related to the family of
defendant No.2 in terms of pedigree. PW 1 stated that sister of
Moharli namely Mishri was also married in the village and according
to PW 2- Ramji Lal, defendant No.1 was related to Moharli by 20
tables in pedigree. Similarly according to PW 3-Laxminarain,
Lambardar, defendant No.1 was related to defendant No.2 in 15 to
16 pedigrees. According to PW 4-Mohar Singh, Lambardar,
relationship between the defendants was 3-4 tables apart. By
quoting the aforesaid testimonies, learned counsel for the
respondents tried to project that defendant No.1 was having remote
chance of succession in the property of Ganeshi.
[27]. It was further argued that Section 15(2) of the Hindu
Succession Act would come only after the death of Moharli. Civil
Suit was filed on 03.08.1995, therefore, position was to be seen on
that day only. Moharli was alive. Plaintiffs had no right to file suit on
the said day. Trial Court and the lower Appellate Court had returned
findings under issues No.3 and 4 against the plaintiffs. Those
findings have not been challenged in the regular second appeal,
therefore, other issues would not come for consideration particularly
when locus standi was not found in favour of the plaintiffs.
Moreover, in terms of Section 34 of the Specific Relief Act,
simplicitor suit for declaration was not maintainable in terms of
proviso to Section 34 of the Act as possession was not claimed by
the plaintiffs. Learned counsel also emphasized that since no issue
was claimed by the plaintiffs, therefore, in view of waiver, no such
issue can be claimed at this stage.
[28]. In sum and substance, learned counsel for the respondents
submitted that except the aspect of registration as observed by the
Hon’ble Apex Court, this Court cannot go into other questions which
were decided by the Courts below. Defendant No.2 was absolute
owner in terms of Section 14(1) of the Hindu Succession Act. She
was held to be absolute owner under issues No.1 and 2 by the
Courts below. The concept of family was considered in Kale and
others case (supra) and was given wide connotation. The ratio of
Bhoop Singh case (supra) was confined to Civil Court decree
passed on compromise and not on account of any pre-existing right.
On the aforesaid premise, the contention raised by learned counsel
for the appellants were opposed and rebutted.
[29]. I have considered the arguments made by learned counsel
for the parties in the light of evidence and observations made by
Hon’ble Apex Court.
[30]. Evidently, the Hon’ble Apex Court has found as a matter
of fact that the Courts below have fell into error in not appreciating
the fact in issue viz-a-viz the ratio laid down in Smt. Asha Rani Vs.
The Controller of Estate Duty, 1997 (4) RCR (Civil) 210,
Shakutala Yadav and others case (supra) and Lal Singh Vs.
Jaswant Singh, 2002 (2) RCR (Civil) 219. The fact situation was
observed to be totally different in the present case. Hon’ble Apex
Court in the remand order has observed that the decree passed in
favour of defendant No.1 on the basis of family settlement was
required to be compulsorily registrable in terms of Section 17(2) (vi)
of the Registration Act and that was admittedly not done.
[31]. As per legal position, the Hon’ble Apex Court in Bhoop
Singh case (supra) summarized the position in the following
manner:-
“18. The legal position qua Clause (vi) of Section 17(2)
can, on the basis of the aforesaid discussion, be
summarized as below:
(1) Compromise decree if bona fide, in the sense that the
compromise is not a device to obviate payment of stamp
and frustrate the law relating to registration, would not
require registration. In a converse situation, it would
require registration.
(2) If the compromise decree were to create for the first
time right, title or interest in immovable property of the
value of Rs.100/- upwards in favour of any party to the
suit, the decree or order would require registration.
(3) If the decree were not to attract any of the Clauses of
sub-section (1) of Section 17, as was the position in the
aforesaid Privy Council and this Court’s cases, it is
apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of
compromise, as was the position in Lahore case, benefit
from the terms of compromise cannot be derived, even if
a suit were to be disposed of because of compromise in
question.
(5) If the property dealt with by the decree be not the
“subject matter of the suit or proceeding”, Clause (vi) of
sub-section (2) would not operate, because of the
amendment of this clause by Act 21 of 1929, which has
its origin in the aforesaid decision of the Privy Council,
according to which the original clause would have been
attracted, even if it were to encompass property not
litigated.
19. Now, let us see whether on the strength of the decree passed in
Suit No.215 of 1973, the petitioner could sustain his case, as put up
in his written statement in the present suit, despite the decree not
having been registered. According to us, it cannot for two reasons:
(1) The decree having purported to create right or title in the plaintiff
for the first time that is not being declaration or pre-existing right, did
require registration. It may also be pointed out that the first suit
cannot really be said to have been decreed on the basis of
compromise, as the suit was decree “in view of the written statement
filed by the defendant admitting the claim of the plaintiff to be
correct.” Decreeing of suit in such a situation is covered by Order 12
Rule 6, and not by Order 23 Rule 3, which deals with compromise of
suit, whereas the former is on the subject of judgment on admission.
(2) A perusal of the impugned judgment shows that the first
appellate Court held the decree in question as “collusive” as it was
with a view to defeat the right of others who had bona fide claim
over the property of Ganpat. Learned Judge of the High Court also
took the same view.”
[32]. Question No.1 has to be answered in favour of the
plaintiffs in view of observations made by Hon’ble Apex Court in
remand order coupled with observations made in Bhoop Singh
case (supra). The ratio of Ram Charan Das Vs. Girja Nandini
Devi and others, 1966 AIR (SC) 323 as referred to by learned
counsel for the respondents was explained in Kale and others case
(supra) which was further relied upon by this Court in Jagdish Vs.
Rajwanti case (supra) to explain the concept of family settlement
and the connectivity of defendant No.1 viz-a-viz defendant No.2
being sister’s son having no such remote chance of succession in
the property left by defendant No.2. The ratio of Shakuntala Yadav
and others case (supra) was also having meaningful explanation in
the aforesaid context to answer substantial question of law No.2 in
favour of the plaintiffs.
[33]. Since defendant No.1 having no pre-existing right in the
property, therefore, right was allegedly conferred upon defendant
No.1 by way of decree dated 13.06.1995. Any right created for the
first time in respect of property worth more than Rs.100/- was legally
required to be registered. An effort was made by learned counsel for
the respondents to segregate the analogy of Bhoop Singh case
(supra) in the light of observations made in S. Noordeen Vs. V.S.
Thiru Venkita Reddiar, 1996(1) RRR 750 and Som Dev and
others Vs. Rati Ram and another, 2006(4) RCR (Civil) 303. It was
contended that a compromise decree does not require registration
unless decree involves any immovable property valued above
Rs.100/-. Having considered the aforesaid submission in the light of
facts of the present case, particularly observations made by the
Hon’ble Apex Court in remand order, this Court deems it appropriate
to answer third substantial question of law in favour of the plaintiffsappellants.
[34]. Since the appeal can be adjudicated without there being
any framing of specific issue with regard to ancestral and nonancestral
nature of the property, therefore, the arguments raised by
learned counsel for the appellants with regard to framing of issue is
inconsequential.
[35]. In view of discussions having been made above, I find
that there are substantial questions of law involved for acceptance
of this appeal. Resultantly, impugned judgments and decrees
passed by the Courts below are set aside. Appeal is accordingly
allowed, decreeing the suit of the plaintiffs.
In other words parties to a compromise decree if had pre - existing right over suit properties, the compromise decree is not compulsorily registrable.But lower Court continue to demand stamps for writing the compromise decee even when parties had preexisting rights.
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