RSA No.4956 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.4956 of 2010(O&M) Date of Decision: December 8, 2011 Smt.Rajo and another .....Appellants v. Smt.Rajbati and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Vikas Kumar, Advocate for the appellants. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.14637-C of 2010 In view of the facts mentioned in the application, delay of 37 days in re-filing the appeal is condoned. Application stands disposed of accordingly. RSA No.4956 of 2010 The present regular second appeal has been filed against judgment and decree dated 29.1.2010 passed by learned Additional District Judge, Palwal, dismissing appeal filed by present appellants-plaintiffs against judgment and decree dated 13.6.2009 passed by learned Civil Judge (Junior Division), Palwal, dismissing suit filed by present appellants- plaintiffs. I have heard learned counsel for the appellants and have gone through the whole record carefully including both the judgments passed by learned Courts below. Briefly stated, present appellants-plaintiffs alongwith their another sister suffered judgment and decree dated 20.2.1987 passed in Civil RSA No.4956 of 2010(O&M) -2- suit No.14 of 5.1.1987 titled Tej Pal v. Smt.Rajo etc. on the basis of family settlement earlier entered between the parties, vide which present appellants-plaintiffs stated to have relinquished their rights and title in the property in dispute in favour of their brother Tej Pal. The main ground taken for challenging the said decree by present appellants-plaintiffs is that their thumb impressions were obtained on some blank papers and printed forms and that judgment and decree had been obtained by fraud. On notice being issued, the suit was contested by respondents- defendants by taking the plea that a family settlement was arrived at between the parties in the year 1984 when present appellants-plaintiffs relinquished their rights in the property in favour of predecessor-in-interest of respondents-defendants, namely, Tej Pal. Plea has also been taken that another sister of appellants-plaintiffs, namely, Smt.Bimla, also relinquished her right in his favour. On appreciation of evidence adduced by both the parties, learned trial Court dismissed the suit filed by present appellants-plaintiffs by holding that decree was validly suffered by present appellants-plaintiffs in pursuance of family settlement arrived at between the parties. Appeal filed against the said judgment and decree was also dismissed by learned first appellate court. It has been contended by learned counsel for the appellants- plaintiffs that it is a case of fraud and that in fact appellants never appeared before the Court and never suffered any statement and rather their thumb impressions and signatures were obtained on plain paper by way of fraud. However, law is well settled that a party raising plea of fraud is required to specifically plead and prove the manner in which fraud was played. Fraud RSA No.4956 of 2010(O&M) -3- even in civil proceedings has to be proved like charge in criminal proceedings. A very vague plea has been taken by present appellants- plaintiffs that their thumb impressions were obtained on blank and printed forms. Hence, both the Courts below have rightly come to the conclusion that appellants-plaintiffs have failed to prove the fraud. It has further been contended by learned counsel for the appellants-plaintiffs that the impugned judgment and decree does not create any right in the property in dispute in favour of respondents-defendants as the same requires registration. However, the said plea is also not tenable. Law on the point has been settled by Hon'ble Apex Court in Bhoop Singh v. Ram Singh Major, AIR 1996 SC 196, relevant paragraphs of which read as under:- “ 13. In other words, 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 included the essential terms of the same; if the document, including a compromise memo, extinguishes the rights of one and seeks to confer right, title or interest in praesenti in favour of the other, relating to immovable property of the value of Rs.100/- and upwards, the document or record or compromise memo shall be compulsorily registered. 14 and 15. XX XX XX 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 RSA No.4956 of 2010(O&M) -4- 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 registrable. 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 RSA No.4956 of 2010(O&M) -5- 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.” Hence, Court has to see as to whether rights in the property has been created or extinguished for the first time vide the impugned judgment and decree and if it is so, the same requires compulsory registration, failing which no right in immovable property of the value of Rs.100/- and upwards would be extinguished and right would be created in favour of the other party. However, it is not such a case in which right in immovable RSA No.4956 of 2010(O&M) -6- property is created for the first time. Rather the rights were created at the time of family settlement and the decree was only to give effect to the said family settlement. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned judgments and decrees. Finding recorded by learned courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 8.12.2011 (Ram Chand Gupta) meenu Judge