IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 RSA.No. 763 of 2009(G) ---------------------- AS.32/2003 of I ADDL. DISTRICT COURT, PALAKKAD OS.458/1999 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT (S)/5TH RESPONDENT/DEFENDANT: -------------------- ARUMUGHAN,S/O.PAZHANI,NELLIKKADU HOUSE, KALLUR,MANKARA,PALAKKAD. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE (AMICUS CURIE) BY ADV. SRI.VINOD KUMAR.C RESPONDENT(S)/APPELLANT AND RESPONDENTS 2 TO 4/PLAINTIFFS: --------------- 1. N.P.VELAYUDHAN,S/O.LATE PAZHANI, NELLIKKADU HOUSE,KALLUR,MANKARA,PALAKKAD. 2. MALU @ KOYU,D/O.LATE PAZHANI, KIZHAKKUMPROM,MANNUR,PALAKKAD. 3. MALU,D/O.PAZHANI,KARUMANKKADU HOUSE, KOTTEKKAD,KALLIPPARA,PALAKKAD. 4. THANKAM,D/O.PAZHANI,PALASSERI PARAMBU, KERALASSERI,PALAKKAD. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1TO R3 SRI.T.C.SURESH MENON FOR R1 TO R3 SRI.JIBU P THOMAS FOR R1 TO R3 SRI.P.S.APPU FOR R1 TO R3 SRI.A.R.NIMOD FOR R1 TO R3 SRI.C.A.ANOOP FOR R1 TO R3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.763 of 2009 -------------------------------------- Dated this the 23rd day of November, 2009. JUDGMENT Substantial questions of law framed for a decision in the Second Appeal are: i. Whether a compromise preliminary decree is required to be registered under law and if not, it could be said to be invalid and unenforceable? ii. Whether one of the parties to the preliminary decree based on compromise could file separate suit for partition challenging that preliminary decree? 2. The Regular Second Appeal arises from judgment and decree of learned Additional District Judge-I, Palakkad in A.S.No.32 of 2003 reversing judgment and decree of learned Additional Munsiff, Palakkad in O.S.No.458 of 1999. As per the impugned judgment and decree of first appellate court, there is a preliminary decree for partition passed in respect of two items of properties altogether measuring 80 cents. Parties are referred to as plaintiffs and defendant as in the trial court for convenience. 3. Short facts necessary for consideration of the questions framed are: According to the plaintiffs schedule properties are the self acquisition of the late Pazhani, husband of plaintiff No.1 and father of plaintiff Nos.2 to 5 and the defendant. On the death of Pazhani, all of them became co-owners of the said RSA No.763/2009 2 property. Hence the suit for partition. The sole defendant opposed the suit contending that entire properties are not self acquisition of the late Pazhani and that entire properties are not partiable. Regarding item Nos. 1 and 2 in the plaint schedule, a preliminary decree for partition has already been passed in O.S.No.832 of 1990 of the Munsiffs' Court, Palakkad with plaintiff Nos.1 and 3 and the said Pazhani as parties thereto. That preliminary decree was passed on a compromise entered between Pazhani, plaintiff No.1 and the defendant. It is also contended that final decree proceeding is pending in that case. In the compromise entered in O.S.No.832 of 1990 it was admitted by Pazhani that 36 cents scheduled in the written statement belonged to the defendant and that item No.2 in the plaint schedule could be partitioned. Hence only item No.2 in the previous suit – 36 cents in item No.1 of the present plaint schedule - alone is available for partition. Remaining 36 cents scheduled in the written statement belonged to the defendant. Trial court found that plaintiffs are not entitled to reliefs since the compromise preliminary decree in O.S.No.832 of 1990 bound them and consequently, dismissed the suit. Plaintiff No.3 took up the matter in appeal. In the course of hearing of the appeal, counsel for defendant agreed in the first appellate court that he has no objection in passing preliminary decree for partition in respect of the 36 cents set apart for the share of Pazhani as per compromise preliminary decree in O.S.No.832 of 1990. First appellate court found that Ext.B1, the compromise petition with decree in O.S.No.832 of 1990 is binding on plaintiffs but held that the preliminary decree based on compromise RSA No.763/2009 3 required registration, for want of registration that preliminary decree is not valid and hence plaintiffs are justified in asking for partition of the entire properties referred to in the plaint schedule as if there is no preliminary decree passed in O.S.No.832 of 1990 and accordingly passed a preliminary decree for partition. That judgment and preliminary decree are under challenge at the instance of the defendant on the substantial question of law framed above. It is contended by learned counsel for appellant/defendant that finding of the first appellate court that compromise preliminary decree required registration is unsustainable in law. According to the learned counsel there is no law or binding authority which takes the view that a preliminary decree for partition is registrable. Learned counsel has referred to me Section 17(2) (vi) of the Registration Act (for short, “the Act”) to buttress his contention that a preliminary decree is not required to be registered. Learned counsel for plaintiffs on the other hand would contend that in so far as the compromise creates right in favour of the defendant for the first time in respect of the property over which he had no antecedent title, preliminary decree is required to be registered. It is contended by learned counsel referring to the definition of 'decree' in Section 2(2) of the Code of Civil Procedure (for short, “the Code”) that there could be a decree which is partly final and party preliminary, in this case the preliminary decree in O.S.No.832 of 1990 is a final decree so far as arrangement made therein concerned and hence it is required to be registered. Further contention advanced by learned counsel is that at any rate, plaintiff Nos.2 and 5 are not parties in O.S.No.832 of RSA No.763/2009 4 1990 and the compromise, plaintiff No.3 though a party to O.S.No.832 of 1990 is not a party to the compromise and hence preliminary decree passed on the basis of the compromise will not bind plaintiff Nos.2, 3 and 5. In support of the contention that the preliminary decree based on compromise will not bind persons who are not parties to that compromise, learned counsel has placed reliance on the decisions in Gurpreet Singh v. Chatur Bhuj Goel ((1998) 1 SCC 270), Som Dev and others v. Rati Ram and another ((2006) 10 SCC 788) and Sneh Gupta v. Devi Sarup and others ((2009) 6 SCC 194). To support the contention that the preliminary decree required registration, learned counsel has placed reliance on the decisions in Bhoop Singh v. Ram Singh Major and others ((1995) 5 SCC 709), Som Dev and others v. Rati Ram and another ((2006) 10 SCC 788) and K.Raghunandan and others v. Ali Hussain Sabir and others ((2008) 13 SCC 102). In support of the contention that a decree could be partly preliminary and partly final, reliance is placed on Rachakonda Venkat Rao and others v. R.Satya Bai (dead) By Lr. and another ((2003) 7 SCC 452) and Bikoba Deora Gaikwad and others v. Hirabai Marutiao Ghorgare and others ((2008) 8 SCC 198). 4. By virtue of Section 17(2)(vi) of the Act a decree or order of court expressed to be made on a compromise comprising immovable property which RSA No.763/2009 5 is subject matter of the suit or proceeding is exempted from the necessity for registration. It is admitted that the compromise in O.S.No.832 of 1990 was only in respect of the properties which were subject matter of that suit. But the argument of learned counsel for plaintiffs is that going by Ext.B1, defendant (plaintiff in O.S.No.832 of 1990) who had no antecedent title over the properties dealt with therein was conferred with title over 36 cents of land, that amounted to creating title over the property in favour of the defendant and at any rate, there is extinguishment of title of Pazhani in the said property as per the compromise and hence compromise as well as consequent preliminary decree required registration. To understand that question it is necessary to refer to Ext.B1 and find whether it creates or extinguishes title to any of the parties thereto. Relevant clauses in Ext.B1 are clause Nos.2, 3 and 4. 5. In the plaint in O.S.No.832 of 1990 the present defendant (sole plaintiff in that case) contended that properties referred to therein belonged to his grandfather, Arumughan (father of Pazhani, defendant No.1 in that suit) and on the death of the grandfather, properties became divisible between him, Pazhani and other defendants in that suit. That was resisted by defendant No.1, Pazhani who claimed that it is his self acquired properties. In Ext.B1, defendant (plaintiff in O.S.No.832 of 1990 ) accepted and acknowledged that properties are self acquired properties of Pazhani (defendant No.1 in O.S.No.832 of 1990) and agreed for a preliminary decree as per Ext.B1. Clause Nos.2 to 4 in Ext.B1 state that 36 cents out of total of 1.08 acres (item No.1 in that suit) had RSA No.763/2009 6 already been assigned by Pazhani in favour of plaintiff No.3 herein, his son and that plaintiff No.3 was in possession and enjoyment of the said 36 cents. Of the remaining 72 cents, parties to Ext.B1 ie. Pazhani and his wife (present plaintiff No.1) accepted and acknowledged that defendant (plaintiff in O.S.No.832 of 1990) was in possession of 36 cents for about 17 years holding it adverse to the title of Pazhani and thus defendant (plaintiff in O.S.No.832 of 1990) perfected title by adverse possession. It is also stated in Ext.B1 that in the said circumstances Pazhani and his wife (plaintiff No.1 herein) have no objection in defendant (plaintiff in O.S.No.832 of 1990) continuing in possession of the said 36 cents. Learned counsel for plaintiffs would contend that reading of Ext.B1 would show that it is by Ext.B1 that defendant (plaintiff in O.S.No.382 of 1990) perfected title by adverse possession of the said 36 cents and hence it amounted to creation of a right in the property over which defendant (plaintiff in O.S.No.832 of 1990) had no antecedent title. I have gone through Ext.B1 and I am unable to accept that contention. Going by relevant clauses in Ext.B1 it is true that the properties are admitted to be belonging to Pazhani and hence defendant (plaintiff in O.S.No.832 of 1990) had no antecedent title over the properties dealt with therein, but I am unable to find from Ext.B1 that it is the said document which conferred title on defendant (plaintiff in O.S.No.832 of 1990) over the 36 cents referred to therein as in his adverse possession. What I am able to understand from Ext.B1 is that Pazhani (and his wife - plaintiff No.1 herein) accepted and acknowledged the fact of RSA No.763/2009 7 defendant (plaintiff in O.S.No.382 of 1990) being in exclusive possession adverse to the title of Pazhani for about 17 years and thus defendant perfecting title over the said 36 cents. It cannot be contended that Ext.B1 created title in favour of the defendant or extinguished title of Pazhani. In Som Dev and others (supra) the Supreme Court has held that when the compromise decree only recognized a pre-existing right, decree does not require registration. Other decisions relied on by the learned counsel for plaintiffs relating to registration and referred supra referred to registration of decree on compromise which covered property which was not the subject matter of the suit or created title in presenti to one of the parties to the suit which have no application to the facts of the case on hand. 6. So far as the contention that the preliminary decree (Ext.B1) takes the character of a final decree and therefore requires registration is concerned, I stated that as per Ext.B1 title is not conferred on defendant, instead, it only recognized his title and possession of 36 cents which he othewise acquired ie. by adverse possession and limitation. Nor could it be said from Ext.B1 for the mere reason of acceptance of separate possession of defendant over 36 cents which is bounded on all sides with fence that the decree passed on the basis of Ext.B1 is not preliminary in character. It is not disputed that pursuant to the preliminary decree based on Ext.B1, application for passing a final decree is pending and that concerned the disputed 36 cents in the possession of the defendant as well. RSA No.763/2009 8 7. Even so far as a final decree in partition suit is concerned, it does not require registration as in the case of other decrees and documents requiring registration. What is required is only that when a final decree is engrossed on stamp paper the same has to be kept in the court and a copy of it has to be sent to the Registrar concerned to be filed in Book No.1 kept in his office. This is as provided under Rule 16(c) of the Registration Rules (Kerala). That provision says that copies of certificates, orders and instruments received under Section 89 of the Act and also copies of final decree received under the Civil Rules of Practice have to be maintained in the file book corresponding with Book No.1 in the office of the Registrar. Rules 236 and 237 of the Civil Rules of Practice state that when a final decree is passed, that has to be engrossed on stamp paper and a copy of it has to be sent to the Registrar within whose jurisdiction the immovable property dealt with in the final decree is situated. A Division Bench of this Court has considered the issue in Madhavi Amma v. State of Kerala (1986 KLT 591). It is held that a final decree in a partition suit does not require registration as in the case of other instruments creating or extinguishing title instead, filing of a copy of the final decree engrossed on the stamp paper with the Registrar is sufficient. Decisions relied on by the learned counsel regarding necessity of registration do not refer to the registration of final RSA No.763/2009 9 decrees as in the case on hand. Therefore, the contention that Ext.B1 required registration and in the absence of that, preliminary decree passed in O.S.No.832 of 1990 is unenforceable and is invalid cannot be sustained. 8. Now I shall refer to the contention raised by the learned counsel for the plaintiffs as to the binding nature of Ext.B1 on plaintiff Nos.2, 3 and 5. It is contended by learned counsel that the preliminary decree based on Ext.B1 to which plaintiff Nos.2, 3 and 5 are not parties is not binding on them and hence they can ignore the same and request for partition of the properties referred to therein. It is also contended by learned counsel for plaitniffs that though plaintiffs has a contention that Ext.B1 is the result of fraud and collusion, trial court has not framed an issue regarding that nor considered the same and answered it. It is pointed out by learned counsel that the first appellate court has also not referred to that contention of the plaintiffs though it is specifically urged in the memorandum of first appeal. Learned counsel for the defendant in response contends that plaintiff Nos.2, 3 and 5 claim right in the present suit only as legal heirs of Pazhani who is a party and signatory in Ext.B1 and hence in their capacity as legal heirs of Pazhani they are bound by the compromise to which Pazhani is a party. Learned counsel contends that though plaintiff No.3 had raised a contention as a defendant in O.S.No.832 of 1990 in his written statement that the properties belonged to his grandfather, Arumughan (father of Pazhani) in the plaint in the case on hand he also conceded that the suit RSA No.763/2009 10 properties belonged to Pazhani, his father who is defendant No.1 in O.S.No.832 of 1990 and a party in Ext.B1. According to the learned counsel in the light of the contention plaintiff Nos.2, 3 and 5 have raised in the plaint that the properties belonged to Pazhani, they cannot even be treated as necessary parties in O.S.No.832 of 1990, nor in Ext.B1, compromise. Hence plaintiff Nos.2, 3 and 5 cannot contend that in the absence of their being parties in Ext.B1 the preliminary decree passed based on that compromise cannot bind them. 9. On going through judgments under challenge I find that both the courts were of the view that Ext.B1 is binding on the plaintiffs. According to the learned counsel for the plaintiffs, that issue requires reconsideration by the trial court since no issue has been specifically framed. Though no specific issue was framed by the trial court in that regard, that court has adverted to the contention raised by the plaintiffs and found that Ext.B1 is binding on the plaintiffs since they claimed right and title only under Pazhani who was defendant No.1 in O.S.No.832 of 1990 and a party in Ext.B1. That was confirmed by the first appellate court also. Then the question is whether for the mere fact of the trial court not framing an issue in that regard, it is necessary to set aside that finding and remit the case to the trial court for reconsideration of that issue. RSA No.763/2009 11 10. In the present suit, plaintiffs admit and proceed on the basis that property belonged to Pazhani who admittedly was a party in O.S.No.832 of 1990 and Ext.B1, compromise. Hence the entitlement of plaintiffs is only as legal heirs of Pazhani. In that capacity they cannot set up a claim against what Pazhani himself admitted as per Ext.B1. Plaintiffs could claim right in the property only consequent to death of Pazhani. Hence it cannot be contended that plaintiff Nos.2 and 5 were necessary parties in O.S.No.832 of 1990 and that plaintiff Nos.2, 3 and 5 to the compromise. Plaintiff No.3 was a defendant in O.S.No.832 of 1990 though he is not a party in Ext.B1. In the light of the title traced by him in the present suit, it could not be said that he also was a necessary party to Ext.B1. Hence plaintiffs cannot avoid Ext.B1 and the decree passed on its basis on the ground that plaintiff Nos.2, 3 and 5 were not parties to it. I am not inclined to think that merely for the reason that no specific issue is raised in that regard the matter has to go back to the trial court again since the parties had joined issue on that matter, it was adjudicated in the courts below and plaintiffs received an adverse finding against them which I do not find reason to interfere. 11. But on the contention of plaintiffs that Ext.B1 is the result of fraud and collusion. I find that none of the courts below have gone into that question or answered the same. Being a second appellate court, I do not consider it just or proper to consider that question for the first time even though it is RSA No.763/2009 12 contended by learned counsel for defendant that parties have adduced evidence in that regard. In the above circumstances the matter has to go back to the trial court for decision on that question. 12. So far as the 36 cents of land retained by Pazhani even as per Ext.B1 is concerned, counsel for defendant had submitted in the first appellate court that it could be partitioned. The decree of the first appellate court to the extent it concerned that 36 cents require no interference. Resultantly, this Second Appeal is allowed in the following lines: i. Judgment and decree of the first appellate court to the extent it concerned properties other than the 36 cents ordered to be partitioned on the admission of the defendant are set aside. ii. Finding of the first appellate court that Ext.B1, compromise is invalid for absence of registration and hence the preliminary decree passed in O.S.No.832 of 1990 is not binding on the plaintiffs is set aside. iii. Finding of the courts below that notwithstanding that plaintiff Nos.2, 3 and 5 are not parties in Ext.B1 they are also bound by that compromise does not require interference. RSA No.763/2009 13 iv. The case is sent back to the trial court for decision on the question whether Ext.B1 is the result of fraud and collusion as contended by the plaintiffs. Learned Munsiff shall decide that question if necessary after giving parties opportunity to adduce further evidence on that question. Learned Munsiff shall decide the case giving top priority to it. I placed on record my appreciation for the assistance rendered to me by learned Senior Advocate Shri A.P.Chandrasekharan as Amicus Curia in resolving the legal issues involved in this Second Appeal. Parties shall appear in the trial court on 28.1.2010. Registry shall send back the records to the trial court forthwith. I.A.No.1674 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks