High Court of Punjab and HaryanaRSA/3938/2004allowed

Hari Ram And Others v. Madan Lal And Others

2017-01-11Mr. Justice Sudhir Mittal20 pages

!"##$%&%'())))*

+( ,-

" #

$$$ %&'

()*+(*&,

/ !

. 1 !

! %('

! .3

!!0

/ .

! .3

!! %5' !!! !

!! ! &67

&&+ 5

/ /

&5*9&::,/ (57

&5*9&::,

!!8

3 <

/ = <

<> !!?

> (? %7' !!

(

3 !

. =

! !

8 3

3 !! (!

4 !3 (.

3 &

( &

&5*9&::, !!

.3 ( 2

!! @

(

3 3 !

34 !3"

%,' &

.3 (2

(

- ;

( 8 ( .

.3 & ( !!

3 !

3 8 (

. .

&8 (

& B

!! %9' !

! .

0 "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.

%)'

A /

4C&

8 (

(

!3 ! !!8 ;

3 8 (

!= !

4 A C ( A . C 5

. C 7 4 . C,2

(

!B &* &//8 &

A 3

;

!! .

%+' 2 /

;

& (

!! !

(

3 !!

1 !

;

. !! 8

;

(

8 (

. =

(

! 3 !

.3 !!

3 !

3!!

/ &(*+&::,

!B &* &//

!!!

1 !

&@ ;

! ;

& (

/ 4

(+*:(**( !!

! .

*(*9(**7 %:' ;

5:5+ ! (**7 ! .3

&,&((**9

/ ;

+:* !(**+

/ !

! . 1 !@ .

A /

0 "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 !"#$ %&'(), 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 non, registration of a decree under Section 17(2) (vi) of the Act and the law laid down by this Court in the case of *+

, - " '$' .. )/ is not applied to the case on hand, which rendered the impugned judgment and decree bad in law." %&*' 3

3 1

&)>(? > ?

0"+$ 1

. 1 ! %&&' @ ! !

/ !

. 1 !

/ 0

"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?

%&(' @

%&5'

(

! 3

(

. =

! 4 !3 8 &

- !

> (? @

.3 (

!= .

8 (

%&7'

&5*9&::, >DA&?

! 3 !3

!3 A

& 2

. 3

!! *9*:(***

!! !

DA&

&( &

A 2

/ ()*((**& %&,'

A/ 3

/ /

&5*9&::, 1

. .3

A / 3

&,>(?>.?

(

8 (

3 1

&5*9&::, 3 ( 58 ;

!!3

%&9' !

! 3

! 2

3 .

/ .

;

!! .

/ .

%&)'

!!2

! 3 ! .3

/ 2

;

0"+$

A/ ! %&+'

! 2

- (

;

& (

;

5 7

3 1

&,>(?>.?

! .

1 1, % 1++ "#$ .. )

%&:' @ ! .3

! .3

. ! .

.3 , + 44 #/5" $ .. (/( 6 7 489+ 6 ,

.,+4 #/ " .$ 5/:5 8. ; *

.<+ 04 &, #//5 " .$5:)

%(*' @ !

!!3

! 33

! !3

#//!"$ . ".

$ :))

! = 2 /

!*0 1 #//#"5$.".

$( ' 1 7+47 0 >. " ):$5 +,..

3 .3

!3 3

1 ! 3

F00 F

!3 %(&' 3

0 "+$

3 !3

! 1 0 "+$

! 0 "+$

3 .

( %((' 3

&,>(?>.?

:( %& '/ .

.3!

! 3

>&?

. %(5'

!*+

0 "+$

&)>(? > ?

>&? .

/ >?

> ? .

&**60

! 3

3/ > ?

&)>(?

!&**60 !

3 !

%(7'@

&5*9&::,

!! %(,'B

3 .

A / 3

/ /

. !3

!!3

>(?

/ /

! !3

! 1 0 "+$

( 5

%(9'

! C & C ( 8 &

- ( .

(

C &

C(0 4 &

.3 (*

C 50A . &

(&,

C 70

. .

507 . 3 1

!= %()'@ !

&,>(?

3 !

! *5*+&::,

3 3

32/

! ;

5 7

!! 2

locus standi

! !

%(+'@ .

! .

/ .

8 ( .

&7>&?

;

& ( .3

/ .

! !3

1 0"+$

*+ 0 "+$

/ /

!3 A

%(:'@

. .3 A/ %5*'D 3

A/ !

/ .

F00 F

2 . > 8 74 ) "($ . ".

$ #/ 0 "+$ & = #//# "#$ . ".

$# 2

3 !!

A /

. ! !3

3 .

&)>(?> ?

%5&'

A/ *+

0 "+$ F

0 "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." %5(' G ;

!! . .3 A /

. *+ 0 "+$ 2

! , . 7

- 7 :: " .$ 5#5

A 10 "+$

/ -= 0 "+$

!!3

& F00 F ( .

3 .3 (2

! 0"+$ ! A

. 1 !;

( !

!! %55'

& A

;

&.33

&5*9&::,3

&**60 3 1

! *+ 0 "+$

2 :"$ )'/ , 7 , #//:"($.".

$5/5@

. .

&**60

3 . .3

. 1 !!

!!0 %57'

3 ! !

! !

1 %5,'@ ! .

. 1 !

3 4

/ .

&&*&(*&)

./#"/#00#!&'#12&3#!4%'5 #&2 ./#"/#00#30"!67# #&2