RSA No. 1544 of 2004(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 1544 of 2004(O&M)
Date of Decision: July 24, 2009
Baru Ram ...... Appellant
Versus
Sat Pal and others ...... Respondents
Coram: Hon'ble Mr. Justice Ajay Tewari
Present: Mr. Ravindra Jain, Advocate
for the appellant.
Mr. S.S.Dinarpur, Advocate
for the respondents.
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Ajay Tewari, J.
This appeal has been filed against the judgment of the learned
lower Appellate Court wherein the finding on issue no.2 recorded by the
trial Court was reversed.
The following questions have been proposed:-
i) Whether the learned lower Appellate Court is justified in
holding that the decree under challenge was not required
compulsory registration,where the property came to the
hands of the person for first time?
ii) Whether the learned lower Appellate Court is justified in
reverting the findings on issue No.2 in the light of the
judgment passed by the Apex Court of India?
iii)Whether a collusive decree passed between the parties where
RSA No. 1544 of 2004(O&M) 2
there is no family settlement and admitted the rights to the
property created for the first time?
iv)Whether the learned lower Appellate Court is justified in
holding that the decree dated 5.2.1993 needs no registration
in view of the 1996 AIR SC 196, 2000(1) C&R JR 676?
It would be seen that questions No (i) to (iv) all relate to the
requirement or otherwise of compulsory registration of the decree.
The appellant had filed a suit challenging the decree suffered
by his father in favour of his brothers. The father of defendant No.1 filed a
written statement asserting that the property was self acquired property.
Learned trial Court without disputing the assertion that it was self acquired
property of the father still went on to hold that the decree suffered by him
required registration relying upon the case of Bhoop Singh v. Ram Singh
Major, reported as AIR 1996 SC 196. In appeal the learned lower
Appellate Court reversed this finding. In Som Dev and others v. Rati Ram
and another, reported as 2006(1) PLR 609, this Court held as under:-
“……..It is for the aforementioned reason that the
Supreme Court in Ram Charan Dass’s case (supra) has
emphasized that every person under the settlement who
takes benefit, does not require to be shown to have a
claim, under law, to a share in the property. All that is
necessary to show is that the parties are related to each
other in some way and have a possible claim to the
property or even a semblance of claim on some other
ground as, say, affection. Such family settlement
recognized by a consent decree, therefore, would not
involve any element of alienation or transfer as envisaged
by Section 17(2)(vi) of the Registration Act, 1908.”
Appeal against the above judgment has since been
dismissed by the Hon’ble Supreme Court in Som Dev and
others v. Rati Ram and another AIR 2006 SC 3297, wherein
RSA No. 1544 of 2004(O&M) 3the Hon’ble Supreme Court also discussed the case of Bhoop
Singh (AIR 1996 SC 196) holding as follows:-
“12. We shall now examine the decision in Bhoop Singh.
What was involved therein was a decree based on
admission. It is to be noted that in that case it was a
decree that crated the right. The decree that is quoted in
para 2 of that judgment was to the effect:
“It is ordered that a declaratory decree in respect of the
property in suit fully detailed in the heading of the
plaint to the effect that the plaintiff will be the owner in
possession from today in lieu of the defendant after his
death and the plaintiff deserves his name to be
incorporated as such in the revenue papers, is granted in
favour of the plaintiff against the defendant…….”
Therefore, it was a case of the right being created by the
decree for the first time unlike in the present case. In
para 13 of that judgment it is stated that the Court must
enquire whether a document has recorded unqualified
and unconditional words of present demise of right, title
and interest in the property and if the document
extinguishes that right of one and seeks to confer it on
the other, in requires registration. But with respect, it
must be pointed out that a decree order of a court does
not require registration if it is not based on a compromise
on the ground that clauses (b) and ( c ) of Section 17 of
the Registration Act are attracted. Even a decree on a
compromise does not require registration if it does not
take in property that is not the subject-matter of the suit.
A decree or order of a court is normally binding on those
who are parties to it unless it is shown by resort to
Section 44 of the Evidence act that the same is one
avoidable on any ground known to law. But otherwise
that decree is operative and going by the plain language o
Section 17 of the Registration Act, particularly, in the
RSA No. 1544 of 2004(O&M) 4context of sub-clause (vi) of sub-section (2) in the
background of the legislative history, it cannot be said
that a decree based on admission requires registration.
On the facts of that case, it is seen that their Lordships
proceeded on the basis that it was the decree on
admission that created the title for the first time. It is
obvious that it was treated as a case coming under
Section 17(1)(a) of the Act, though the scope of Section
17(2)(vi) of the Act was discussed in detail. But on the
facts of this case, as we have indicated and as found by
the courts, it is not a case of a decree creating for the first
time a right, title or interest in the present plaintiff and
his brother. The present is a case where they were
putting forward in the suit a right based on an earlier
transaction of relinquishment or family arrangement by
which they had acquired interest in the property
scheduled tothat plaint. Clearly Section 17(1) (a) is not
attracted. It is interesting to note that their Lordships
who rendered the judgment in Bhoop Singh themselves
distinguished the decision therein in S. Noordin v. V.S.
Thiru Venkita Reddiar on the basis that in Bhoop Singh
there was no pre-existing right to the properties between
the parties, but a right was sought to be created for the
first time under the compromise. Their Lordships
proceeded to hold that in a case where the plaintiff had
obtained an attachment before the judgment on certain
properties, the said properties would become subject-
matter of the suit and a compromise decree relating to
those properties came within the exception in Section 17
(2)(vi) of the Act and such a compromise decree did not
require registration. Merely because the defendant in
that suit in the written statement admitted the
arrangement pleaded by the plaintiff, it could not be held
that by that pleading a right was being created in the
plaintiffs and a decree based on such an admission in
RSA No. 1544 of 2004(O&M) 5pleading would require registration. We are satisfied that
the decision in Bhoop Singh is clearly distinguishable on
facts. We may notice once again that all the courts have
found that it was as a part of a family arrangement that
the defendant in the earlier suit relinquished his interest
in favour of the present plaintiff and his brother and such
a family arrangement has been held even in Bhoop Singh
not to require registration.”
In the circumstances, it cannot be held that such a family
settlement requires compulsory registration.”
In view of what I have held above and in the respectful
agreement with the judgment of this court in Som Dev’s case (supra) I hold
that the questions proposed do not arise in the present appeal. Consequently
the same is dismissed. No costs.
Since the main case has been decided, all the pending Civil
Misc. Applications are disposed of.
(AJAY TEWARI)
JUDGE
July 24, 2009
sunita