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Allahabad High Court
Kripa Shanker Pandey vs Baij Nath Pandey on 29 January, 2010
Court No. - 4

Case :- WRIT - C No. - 4081 of 2010

Petitioner :- Kripa Shanker Pandey
Respondent :- Baij Nath Pandey
Petitioner Counsel :- Vashistha Tiwari,Hemant Kr. Dubey

Hon'ble Krishna Murari, J.

Heard learned counsel for the petitioner.

This writ petition has been filed seeking the following main
reliefs :

(i) issue a writ, order or direction in the nature of certiorari
quashing the compromise decree dated 29.4.2007J passed by the
learned Civil Judge (Junior Division), Deoria in Original Suit No.
264 of 2007 (Misc. Case No. 67 of 2007) so far as directing for
registration of the deed is concerned.

(ii). issue a writ, order or direction in the nature of mandamus
directing the respondent to act on the basis of the compromise
decree passed by the court below dated 29.4.2007.

Facts are that suit was filed by the plaintiff-petitioners against
defendant-respondent seeking declaration that they were owners of
the suit property on the allegation that the property was purchased
out of earnings of plaintiff-petitioner no. 1 and out of love and
respect the property was purchased in the name of defendant-
respondent. It is to be taken note of that plaintiff-petitioner no. 1 is
son and plaintiff-petitioner no. 2 is daughter-in-law of defendant-
respondent. The suit was decreed on the basis of compromise
between the parties with the condition that the decree would
become effective only after it is registered under the provisions of
the Indian Registration Act, 1908. Aggrieved by the part of the
condition directing registration of the decree, the petitioners have
approached this Court seeking above quoted reliefs.

It has been urged by the learned counsel for the petitioners that in
view of section 17(2) (vi) of the Registration Act since the
property in dispute was subject matter of suit/proceedings as such
the decree would not require any registration. The argument
advanced is totally misconceived. The Hon’ble Apex Court in the
case of Bhoop Singh Vs. Ram Singh Major and others AIR 1996
Supreme Court 196 while considering the provisions of Section
17(2) (vi) of the Registration Act in paragraphs 16 and 17 has
observed as under :

“16.We have to view the reach of Clause (vi), which is an
exception to sub-section (1), bearing all the aforesaid in mind. We
would think that the exception engrafted is meant to cover that
decree or order of a Court, including a decree or order expressed to
be made on a compromise, which declares the pre-existing right
and does not by itself create new right, title or interest in praesenti
in immovable property of the value of Rs.100/- or upwards. Any
other view would find the mischief of avoidance of registration,
which requires payment of stamp duty, embeded in the decree or
order.”

“17. It would, therefore, be the duty of the Court to examine in
each case 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, title or interest therein agreed or
suffered to extinguish the same and created right, title or interest in
praesenti in immovable property of the value of Rs.100/- or
upwards in favour of other party for the first time, either by
compromise or pretended consent. If latter be the position, the
document is compulsorily registerable.”

Law being settled on the point that unless there is pre-existing
right in the suit property any decree passed on the basis of
compromise or consent requires to be compulsorily registered.

Learned counsel for the petitioners has placed reliance upon the
judgment of the Hon’ble Apex Court in the case of Som Dev and
others Vs. Rati Ram and another [2006 (65) ALR 484] in support
of the contention that where subject matter of the suit is same the
compromise decree does not require registration. Reliance is
totally misplaced in as much as in the case before the Hon’ble
Apex Court the question was in respect of registration of a decree
which was passed on admission and admission was of pre-existing
right set up by the plaintiff. It may be relevant to quote paragraph
5 of the said judgment:

“5. On an advertence of the circumstances leading to that decree,
in context of the pleadings in that suit, we are not in a position to
agree with counsel for the contesting defendants that the decree
was a compromise decree. It was really a decree on admission and
the admission was of the pre-existing right set up by the plaintiffs
as created by Sheo Ram. The decree by itself did not create any
right in immovable property. It only recognised the right set up by
the plaintiffs in that suit in respect of the property involved. It is
one thing to say that that decree is vitiated by collusion or by fraud
or some such vitiating element. But it is quite another thing to say
that such a decree could be excluded from consideration on the
ground of want of registration.”

In view of the settled legal proposition, since there was no pre-
existing right of the petitioners in the suit property the trial court
rightly directed that decree would become effective only after
registration.

In view of above, the writ petition is devoid of merits and
accordingly stands dismissed.

Order Date :- 29.1.2010
Dcs


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