IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3231 of 1985 Date of decision:31.5.2011 Satbir Singh and another. ...Defendants/Appellants Versus Ompal and others ...Plantiff/Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Raj Mohan Singh, Advocate, for the appellants. Mr.Sunil Pawar, Advocate, for the respondent No.1-plaintiff.. *** JITENDRA CHAUHAN,J. The present regular second appeal is directed against the judgment and decree dated 5.11.1985 passed by learned District Judge, Sonepat, whereby the judgment and decree dated 14.11.1983 passed by learned trial court dismissing the suit of the plaintiff, was set aside. The following pedigree table will facilitate in better understanding and appreciation of the case:- Harkesh | Jasrath (now deceased) (Defendant No.1 | | Ompal Singh Son (Plaintiff) | Krishan Singh Son (Defendant No.5) | | Rajpati Daughter (Defendant No.6) | Satbir Singh (Defendant No.2) | Mahabir Singh (Defendant No.3) | Nepal Singh (Defendant No.4) 1 The brief facts of the case are that the deceased, Jasrat son of Harkesh was recorded as owner of 1/3rd share of 190K-8M of land as mentioned in the head-note of the plaint. The deceased, Jasrat had two sons, namely, Ompal Singh (herein the plaintiff/appellant) and Krishan Singh (defendant No.5 now represented by his legal representatives herein `the appellants) and one daughter, namely, Rajpati (defendant /respondent No.6). Krishan Singh, son of Jasrat had three sons, namely, Satbir Singh, herein the defendant No.2/appellant, Mahabir Singh (defendant No.3/respondent) and Nepal Singh (defendant No.4/appellant now represented by his legal heirs). The dispute in the suit was that the deceased, Jasrat had transferred his share of suit land i.e. equivalent to 8 acres to defendant Nos. 2 to 4 (grand-sons of the deceased) on the basis of collusive declaratory judgment/decree passed in a civil Court titled as Satbir Vs. Jasrat. The further averment of the plaintiff was that he being the son of deceased, Jasrat is entitled to inherit the property owned by his father. It was further mentioned in the plaint that the defendant Nos. 2 to 4 are not the legal heirs of deceased. The judgment and decree, Exhibit P1 and P2 are void, illegal and wholly ineffectual on the ground that the deceased had in fact gifted his share in favour of the defendant Nos. 2 to 4 and decree had been adopted as a device to avoid and contravene the provisions of the Registration and Stamps Act. On the other hand, the defendants controverted the pleadings of the plaintiff and submitted that on the basis of said judgment and decree, Exhibit P1 and P2, mutation has since been sanctioned in their favour. They are in possession of the suit land. 2 After framing of issues and allowing the parties to lead evidence, the trial Court vide judgment and decree dated 14.11.1983 dismissed the suit of the plaintiffs. Feeling aggrieved against the judgment and decree of the learned trial Court, the plaintiffs preferred an appeal, which was allowed by the Additional District Judge, Sonepat, vide judgment and decree dated 5.11.1985. Hence, the present appeal, which was admitted by this Court on 19.3.1985. It is worthwhile to mention here that during the pendency of this Regular Second Appeal, the appellant No.2 Nepal Singh expired on 3.10.2009 and his legal representatives namely Smt Babli widow, Ms Priti; Ms Priyanka and Ms Kamal daughters of Nepal Sikngh deceased were brought on record through C.M.No.3299 C.II of 2011. Learned counsel for the appellant has submitted that the lower appellate court has erred in holding that the decree in question amounted to a gift and the same required compulsory registration. He has further submitted that the decree dated 4.4.1981 was suffered by the grandfather in favour of his grand children on the basis of family settlement. Such a decree does not require any registration. It has further been submitted that during the life time of Jasrath Singh, his whole property was divided into 3 equal shares and plaintiff / respondent himself got 1/3rd property. Learned counsel has also submitted that once the partition of the land was done, thereafter, the deceased had every right to transfer his share in favour of anyone as the property in the hands of Jasrat Singh became the self acquired property. . 3 On the other hand, learned counsel for the respondent submits that a consent decree also requires registration if there is no pre existing right in the property. If it is not registered under the provisions of Registration Act, it is null and void. It has further been submitted that the transfer of land was in the nature of gift of more than Rs.100/- and therefore, no title could be passed in favour of the appellants. He has further submitted that this act was only done to avoid the provisions of Stamps and Registration Act. I have heard the learned counsel for the parties and perused the record with their able assistance. The short question to be determined by this Court is “as to whether the judgment and decree, Exhibit P1 and P2 are null and void for want of registration.”? Admittedly, Jasrath Singh since deceased owned 190 kanals 8 marlas (about 24 killas) of agricultural land. Jasrath Singh deceased partitioned his property amongst his two sons namely Om Pal and Krishan Singh, giving 1/3rd share to them. He kept 1/3rd share for himself. Thereafter on 1.4.1981, Satvir Singh; Mahabir Singh and Nepal Singh sons of Krishan Singh son of Jasrath Singh, filed Civil Sujit No.168/1 against Jasrath Singh, their grand father for declaration to the effect that they (Satvir Singh, Mahabir Singh and Nepal Singh) are owners in possession of 1/3rd share each of the agricultural land. Jasrat Singh appeared before the Court, admitted the claim of the plaintiffs and accordingly, the suit of Satvir Singh, Mahabir Singh and Nepal Singh was decreed. Certified Copy of judgment is Ex.P.1, and certified copy of decree sheet is Ex.P.2. The learned Sub Judge dismissed the suit of the plaintiff on 14.11.1983. However, on appeal preferred by Om Pal, the Ist Appellate Court decreed the suit for possession 4 of 1/3rd share of the suit land in favour of the plaintiff Om Pal as against respondents Satbir Singh, Mahabir Singh and Nepal Singh, the beneficiary under the decree Ex.P.2. The learned Ist Appellate Court affirmed the findings on all the issues except on issue no.3, which was reversed in favour of the appellant decreeing the suit as above. This substantial question of law has already been decided by the Apex Court in `Bhoop Singh vs Ram Singh Major and others’ in AIR 1996 Supreme Court 196, wherein it has been 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, embedded 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 preasenti in immovable property of the value of Rs.100/- or upwards in favour of other party for the first time, either by compromise or presented consent. If latter be the position, the document is compulsorily registerable. 5 18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below : (1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty 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/- or 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 the 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.” 6 Admittedly, there was no pre-existing right of the beneficiary of the judgment and decree Ex.P.1 and P.2. The suit was decreed in view of the written statement filed by Jasrat Singh admitting the claim of the plaintiffs in that suit to be correct. It is not a compromise decree under Order XXIII rule 3 CPC. It is based on admission. The judgment Ex.P.1 and decree Ex.P.2 create right for the first time. Certainly, it would require registration. Under section 17(2)(vi) of the Registration Act, a compromise decree, which creates new rights for the first time requires compulsory registration. The argument of the learned counsel for the appellant that the judgment and decree Ex.P.1 and Ex.P:.2 were passed on the basis of the ‘family settlement’ cannot be subscribed as the same is being raised for the first time before this Court. Strangely, the copies of the plaint and written statement of earlier suit were not brought on record in order to ascertain as to what was the basis for passing the judgment and decree Ex.P.1 and P.2. Without prior pleadings, the court is unable to infer that the decree Ex.P.2 was passed on the basis of oral settlement. The courts cannot go beyond the pleadings of the parties. In this case also, the defendants defending the collusive decree Ex.P.2 have not pleaded in their written statements that it was a decree on the basis of ‘family settlement’. In a suit for declaration on the basis of ‘family settlement’ it was incumbent upon the plaintiffs in that suit to implead all members of the family as the each member is necessary and proper party. So this argument is repelled. Admittedly, the value of the suit property is more than Rs.100/-. The decree Ex.P.3 was compulsorily registrable as it creates right in the eight acres agricultural land for the first time in favour of Satbir Singh, Mahabir Singh and Nepal Singh the sons of Krishan Singh. The 7 learned Ist appellate Court has rightly held that “In my view, the impugned decree amounts to transfer of 8 acres of land by Sh. Jasrath Singh in favour of respondent nos. 2 to 4. This could not have been done without a registered deed and no valid title is passed in favour of respondent nos.2 to 4 through this decree and the appellant can claim his share of the suit land on the demise of Sh. Jasrath Singh.” The net result would be that the collusive judgment and decree Ex.P.1 and Ex.P.2, will not have any bearing on the inheritance rights of class I legal heirs i.e. Om Pal Singh son, Krishan Singh son and Smt Rajpati daughter of Jasrat Singh deceased, who expired on 10.10.1981 There is no scope to interfere in the well reasoned judgment and decree dated 5.11.1985 passed by the Ist Appellate Court. . No other substantial question of law arises for determination. Therefore, it is held that the collusive judgment Ex..P.1 and decree Ex..P.2, passed on 4.4.1981 in Civil Suit No.168/1 of 1.4.1981, titled as ‘Satvir Singh, Mahabir Singh and Nepal Singh vs Jasrat Singh.’ are null and void. The judgment and decree of the Ist appellate Court are hereby affirmed. Resultantly, the present appeal is dismissed being devoid of any merit. 31.5.2011 (JITENDRA CHAUHAN) Mk JUDGE Note: Whether to be referred to the Reporter? Yes 8