JUDGMENT
Permod Kohli, J.
1. This appeal is against the findings of reversal.
Briefly stated the factual back-ground, as emerge from the record is that Sunehri-predecessor-in-interest of respondent Nos. 1 to 4 and Shanti-respondent No. 5, herein, suffered a civil decree dated October 25, 1981 in Civil Suit No. 120 of 1981, where-under the appellants herein, were declared to be owners in possession of the land in dispute on the basis of some family settlement allegedly reached between the parties. This decree came to be challenged in the suit filed by Sunehri in the Court of Sub Judge, IInd Class, Jind. The suit was filed alleging fraud against the appellants, who were defendant Nos. 1 and 2 in the suit. Sunehri also impleaded Shanti her real sister as a co-defendant in the suit, through she also suffered a decree along with Sunehri in the suit. The allegations in the plaint were briefly that she gave her land on lease for two years @ Rs. 300/- per killa per annum to defendant Nos. 1 and 2. In the garb of lease of the land, defendant Nos. l and 2, obtained her thumb impressions on certain documents, which resulted in the passing of fraudulent decree. It is also alleged that she never signed the written statement or power of attorney nor admitted the suit filed by defendant Nos. 1 and 2, being Civil Suit No. 120 of 1981. It was further alleged that the property is valuing more than Rs. One lac, and thus, could only be transferred by a registered instrument.
2. The suit was resisted by the present appellants, who were defendant Nos. 1 and 2 therein. They claimed that family settlement was reached between the parties. Even defendant No. 3 Shanti, who also suffered a decree, denied the allegations of the plaintiff and stated that both of them voluntarily suffered consent decree after receiving Rs. 50,000/- in cash and kind by each of them from defendant Nos. 1 and 2.
3. After framing issues, the trial Court recorded the evidence of the witnesses. The defendants produced a receipt Ex.D3, wherein it was mentioned that the plaintiff Sunehri and defendant No. 3. Shanti received a sum of Rs. 25,000/- each in cash and kind in settling the land in favour of defendant Nos. 1 and 2 by way of family settlement. Two marginal witnesses, namely Sant Singh-DW2 and Sohlu-DW3 appeared before the trial Court and proved the execution of this receipt. The trial Court on the basis of evidence before it. also held that the plaintiffs have not been able to prove any fraud. The trial Court also relied upon the receipt Ex.D-3 to establish family settlement and payment of consideration for parting with the land. The trial Court also referred to the statement of the plaintiff before the Court and the averments made in the pleadings plaintiff has stated that defendant Nos. 1 and 2 approached her for giving the land in dispute on lease basis for two years and she agreed for the same and came to Jind with the defendants and executed the necessary documents. However, during the cross-examination, she has stated on oath that she had come to Jind from village Kheri all alone to get some medicines from Dr. Mahavir, where defendant Nos. 1, 2 and 3 met her and took her to the Court where her thumb impressions were taken on certain papers.
4. On the basis of discussion recorded, the trial Court dismissed the suit vide its judgment and decree dated January 16, 1984. During the pendency of the suit, Sunehri died and her legal representative, who are respondent Nos. l to 4, herein were brought on record. These legal representatives preferred the appeal in the Court of learned Addl. District Judge, Jind. The Appellate Court has reversed the findings of the trial Court and decreed the suit. The first Appellate Court expressed its doubt regarding execution of Ex.D3 i.e. the receipt, which recorded the consideration for family settlement. On the ground for not accepting the receipt is that the same has been typed by one Romesh Kumar, who was not a licensed deed writer. The other ground which weighed with the Court was that the defendants Risala and Hazur Singh had earlier filed a suit against Sunehri, which was pending when the impugned decree came to be passed. According to the learned first Appellate Court, if the parties had entered into any settlement, they would have settled their dispute in the pending suits and not by a separate suit. It also recorded finding doubting consideration said to be paid to the parties mentioned in Ex.D3. It has been observed that no evidence has been led to prove source of money said to be paid to the two sisters as a consideration for entering into the settlement. The first Appellate Court, accordingly, set aside the judgment and decree of the trial Court and decreed the suit vide its judgment and decree dated January 14, 1985.
5. Aggrieved of the aforesaid judgment and decree, the defendants have approached this Court in this Regular Second Appeal.
6. I have heard the learned Counsel for the parties.
7. Learned Counsel appearing for the respondents has argued only one question that the decree required registration as the appellants were not the real brothers of Sunehri. Hence, there was no pre-existing right with the defendants/appellants. According to the learned Counsel, right in the property was created for the first time by virtue of the impugned decree and, thus, it required registration he has relied upon a judgment of the Hon’ble Apex Court in the case of Bhoop Singh v. Ram Singh Major and Ors. , wherein the Apex Court made the following observations:
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, embedded in the decree or order.
8. To the contrary, Mr. Jain has brought to my notice that the parties are co-sharers. Defendant Risala is the son of Ganesha and Hazur Singh is the son of Bhagwana and Sunehri and Shanti are daughters of Jaga. Their ancestors were three real brothers. They have inherited the interest in the joint property and were co-sharers. The parties have pre-existing interest in the property for which a family settlement is permissible. Regarding legal position whether such a decree requires registration or not, I will deal later in this judgment. Before that, it is necessary to refer to the aspect of fraud.
9. Mr. Jain has taken me to the plaint filed by the plaintiff Sunehri wherein some allegations of fraud have been made. He has also taken me to the written statement filed by Shanti, who is defendant No 3. She has categorically stated in her written statement that she and plaintiff had voluntarily made statements in favour of defendant Nos. 1 and 2 in the earlier suit which resulted in passing of decree dated October 25, 1981. She has also mentioned that the plaintiff and she entered into a family settlement in the panchayat and the plaintiff received jewellery and clothes and cash worth Rs. 50,000/-. She also admitted that defendant Nos. 1 and 2 were cultivating the land belonging to the sisters prior to the date of decree and they were also taking care of their mother. She denied all the allegations of the plaintiff in the suit. Mr. Jain has also taken me to the plaintiffs statement made in the Court, which was recorded on November 13, 1982, wherein she has staled in examination-in-chief that she is the owner of the land in question. Defendants have obtained a decree in their favour. She had given the land on chak-ota @ Rs. 300/- per killa per year to the defendants two years back and documents were written at Jind. She never engaged a counsel. Defendant Nos. 1 and 2 had filed a suit in the Court of Sub Judge, IInd Class, Jind, which was later on dismissed and she has not been paid the lease money. She has also not received Rs. 50,000/- from the defendants.
10. It has been, accordingly, argued on behalf of the appellants that the plaintiff has not mentioned anything about the alleged fraud or mis-representation. According to Mr. Jain, allegations in the plaint have not been substantiated at all and hence, the findings returned by the first Appellate Court are nothing but perverse.
11. I have perused the statement of the plaintiff Sunehri made in the trial court. There is absolutely no allegations which may even suggest any fraud or misrepresentation on the part of defendant Nos. 1 and 2, though, there are allegations in the plaint but these allegations have not been substantiated by oral testimony of the plaintiff, while appearing as a witness. The findings of fraud returned by the first Appellate Court are not supported by any evidence and are thus, perverse. It has also not been denied that the parties are co-sharers and have common ancestary. The plaintiff had settled her undivided share in the landed property in favour of defendant Nos. 1 and 2, which also established that the land is common. Under such circumstances, the question is whether the decree requires registration. This question has been considered by the Hon’ble Supreme Court of India in the case of Bachan Singh v. Kartar Singh 2002(1) P.L.J., 59, wherein it was held as under:
A consent decree passed by the Court is not required to be registered under the provisions of the Indian Registration Act and, therefore, the view taken by the first Appellate Court was not legally correct and has been rightly set aside by the High Court.
Even in Bhoop Singh’ case (supra), it has been held that each case has to be looked on its own facts to find out whether right, title or interest is created in praesenti in immovable property valuing Rs. 100/- or upward or it is a pre-existing right. In view of Bachan Singh case (supra) and also the observations made in Bhoop Singh’s case (supra), the consent decree suffered by Sunehri did not require any registration and cannot be set aside on that basis.
12. In view of totality of the circumstances, the judgment impugned is not sustainable, both on facts and on law. This appeal is, accordingly, allowed. The judgment impugned is set aside and the suit of the respondent Nos. 1 to 3 is hereby dismissed. No order as to costs.