Case: S. KULDEEP SINGH &amp; ANR Vs. S. PRITHPAL SINGH

in paragraph 6 of the Suit. In circumstances of this kind, we are quite certain that the compromise was required to be registered, under Section 49 of the Registration Act, 1977 and also under Section 138 of the J&K Transfer of Property Act. Without such registration no title can fructify for the plaintiff from the documents in question. 27. Furthermore, the compromise and the DCs consequent Order, was passed in a revenue proceeding and this was definitely not a part of a Court proceeding. That being the case, the compromise did not fall under the exception category under Section 17(2)(vi) of Registration Act, 1977 (as applicable to then State of J&K). The above makes it abundantly clear that the compromise in order to have legal effect needed registration under the Registration Act, 1977. 28. Significantly, the DCs 24.12.1975 order based on the Compromise, also dealt with 6 Kanals land forming part of Survey No. 1829 & 1838 which went to the ownership of the tenant - Jalil Khan. The subject compromise or the DCs order was not restricted only to 11 Kanals and 15 Marlas as claimed by the Plaintiff. These circumstances would imply that the compromise required registration for it to be of any legal effect. Since title is claimed, and the plaintiff founded his entire case on the compromise, it would necessarily require registration. Accordingly, question B is answered in affirmative. 29. The defendants have also unsuccessfully argued before the High Court that the jurisdiction of the Deputy Commissioner to exercise powers under the J&K Agrarian Reforms Act, 1972 stood suspended on the date of passing the Compromise Decree. Such a question of law has a material bearing on this litigation and the same needs to be considered. The 1972 Act as noted earlier, was suspended during 25.03.1975 to 30.03.1976 and during this period the Compromise was recorded on 18.12.1975 and the 24.12.1975 Order was passed by the DC. The power exercised for these orders are traceable to the suspended provisions of the Act. Of course, the J&K Agrarian Reforms (Suspension of Operations) Act, 1975 did have a proviso which created exceptions for certain sections of the 1972 Act. The relevant part of the proviso reads thus; 4. Certain provisions of Act No. XXCI not suspended for the time being- (1) The provisions of Sections 15, 25, 26, 27, 28, and 51 and the provisions of Chapter V of the principal Act in so far as they relate to these sections and any rules, notifications, orders and instructions issued thereunder including any proceedings instituted or actions taken under the said provisions and pending on the date of commencement of this Act, shall be continued and enforced as heretofore:… 30. The above makes it clear that this case is outside the ambit of any of the exempted sections such as Section 15 (Prohibition on transfer of land), 25 (levy of annual tax), 27 (collection of tax), 28 (Determination of ques-levy of tax related), 51 (repeal & savings) of the 1972 Act. Only such provisions of Chapter V which were relatable to the aforesaid provisions were relevant, and not all sections were within the ambit of exception. Section 31 of the 1972 Act which provided for Appeals and Revisions, was not protected by Section 4 of the Suspension Act, 1975. Thus, the DC, in our mind lacked inherent jurisdiction to either entertain the appeal or endorse the compromise during the suspended phase. In cases where the authority lacked jurisdiction under a special Act and yet exercises powers, without authority of law, any order or decree so passed through such unlawful exercise of power, will be a legal nullity. The deficiency of jurisdiction of the authority cannot be cured by the consent of the parties. The challenge to such an incompetent order could be set up wherever it is sought to be enforced or relied upon, even in execution or in collateral proceedings (1991) 3 SCC 136, Para. 5 | (2017) 3 SCC 740, Para. 35. Accordingly answering in favour of the defendants, the DCs order in our opinion can have no legal effect as the same was passed during the operation of Suspension Act, 1975. We have found that the compromise being unregistered cannot confer title on the respondent. 31. The final issue for our consideration is whether estoppel principle would apply against the defendants in their challenge to DCs order. Equity as we know follows the law, and whenever there is a conflict between law and equity, it is the law which must prevail. Here the Latin maxim dura lex sed lex, which means the law is hard, but it is the law would apply. Equity can only supplement the law, but it cannot supplant or override it (2007) 2 SCC 230, Para. 29, and this would have a bearing against the respondent. 32. The records in the case show that Sucha Singh, during his life time, had cancelled the two Wills in favour of the plaintiff. This indicates that Sucha Singh was not interested to give any part of his property to the plaintiff. Even otherwise, the suit property is self-acquired property of Sucha Singh, and a donee cannot claim equity in respect of the disposal of self-acquired properties, by a donor. Equity is all about balancing the competing interests and due weightage must be given to the fact that the appellants have been in possession and was nurturing their fathers land for over four decades and the estoppel principle propounded against them by the respondent must give way to the law set out by the statute (2021) 3 SCC 401 . 33. Notwithstanding the concurrent finding against them, in a case like this, where the law leans in appellants favour, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co (2007) 8 SCC 120 ., the exercise of extraordinary jurisdiction under Article 136 is found to be merited in this matter.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. In order to adjudicate the above issue, we need to look at the compromise in its intent and functioning. The compromise between the Plaintiff and Abdul Jalil Khan (tenant) was recorded in a proceeding for correction of revenue records under the 1972 Act and the Rules. There, the Plaintiff was admitted to be the owner and in possession of land which he personally cultivated. Sucha Singh with his thumb impression endorsed the compromise deed. On this the defendants have contended that the said statement has to be read in the context in which it was made and how the parties to the transaction understood the same. The plaintiff says that his adoptive father Sucha Singh intended to confer title on the Plaintiff and Sucha Singh would not have looked into the definition of owner under the 1972 Act, before making the endorsement on the compromise. On this, it cannot be ignored that the parties effectuated the transaction in a proceeding under the 1972 Act. Thus, the compromise exists within the four corners of the 1972 Act, and must therefore be read by applying the statutory provisions.19. Proceeding further, the definitions of owner and personal cultivation under Ss. 2(6) and (7) respectively of the 1972 Act are expansive. The definition of owner is an inclusive one. It includes not only the legal owner/proprietor, but also person claiming through the legal owner. Specifically, the adopted sons of the owner. Hence, the purpose of the compromise decree in the correction proceedings under Chapter III of the Rules pertain only to revenue entries, and the possession of land in capacity of a personal cultivator. This could hardly confer any lawful title on the plaintiff over Sucha Singhs land.20. The power under the 1973 Rules confers limited power to the circle officers and it is confined to verifying, amending, and authenticating revenue records as they existed on the cutoff date i.e., 1st September, 1971. Thus, it is clear that a mere affirmation in the context of revenue records and personal cultivation rights cannot be interpreted as an intention of Sucha Singh to confer title upon the Plaintiff. With his endorsement on the compromise, Sucha Singh perhaps intended to give the right of personal cultivation but the same does not in any manner suggest that Sucha Singh had intended to confer title on the plaintiff.21. It is also important to note that Plaintiff in his own testimony (led before Trial Court, and recorded in the Trial Court judgment) had stated that Sucha Singh prepared orchards. Albeit, by using the salary of Plaintiff. The land is therefore of the orchard category. In this situation, the land which is the subject matter of the Compromise being an Orchard stood excluded from the definition of land under S. 2(4) of the 1972 Act. As such, the title for such category of land could not vest with the Plaintiff. This determination of fact is essential to adjudicate the title and the issue was definitely raised in the LPA proceeding before the High Court, apart from being raised in the lower court also. In such a situation this Court is required to keep the orchard aspect in mind and also address the implication of the same on the contesting parties. The upshot of the above persuade us to hold that the compromise (18.12.1975) does not convey any lawful title on the Plaintiff.23. We are however unable to see the compromise as a kind of family arrangement. The compromise was not amongst family members but between the plaintiff and the tenant – Jalil Khan (not a family member). The statement of Sucha Singh I accept the compromise, is only with regard to the internal arrangement regarding the tenancy of Jalil Khan, and this will not make it a family arrangement. Moreover, the plea that compromise is a Family Arrangement is raised for the first time before this Court. The Plaintiff significantly had waived his claim to other assets left by Sucha Singh (on the basis that the Plaintiff is his adopted son), before the High Court. He cannot therefore be permitted to raise such a contention for the first time before this Court. Even otherwise, Jalil Khan was not a family member. Thus, he could not have been a party to a so called family arrangement. Besides, none of the other family members were parties to the said compromise either. Therefore, the documents in question would require registration and it cannot be treated as a family arrangement.24. It is pertinent to note that the ownership claim for the plaintiff is founded only on the compromise and the respondent is not claiming any antecedent title. The issue whether the compromise decree between parties to a suit proceeding, could vest or transfer title to one of them, was decided in Bhoop Singh v. Ram Singh Major [supra], where the requirement of registration of such compromise order which create new rights, title, or interest, was upheld in the following manner: -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 Courts 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.25. Further, in K. Raghundandan & Ors. vs. Ali Hussain Sabir & Ors. [supra], while referring to Bhoop Singh [supra], the Court held that consent terms creating rights/title or interest for the first time, as distinguished from recognition of a right, would require registration if the value of property is above Rs. 100. This was affirmed by a three Judges bench in Phool Patti vs. Ram Singh [supra]. Lastly, in Ripudaman Singh vs. Tikka Maheshwar Chand (2021) 7 SCC 446,  this Court held that where there is no pre-existing right, but right has been created by the compromise alone, such compromise creating new right, title or interest in immovable property of value of Rs. 100 or above, is compulsorily registrable.26. In the present case, the Appeal filed by the tenant – Jalil Khan arose from the change of the entry in the records during the process of verification under the 1972 Act. It was in this Appeal that the compromise was recorded and endorsed by the DCs Order, recognizing the possession of the Plaintiff for the very first time, as was also admitted by plaintiff in paragraph 6 of the Suit. In circumstances of this kind, we are quite certain that the compromise was required to be registered, under Section 49 of the Registration Act, 1977 and also under Section 138 of the J&K Transfer of Property Act. Without such registration no title can fructify for the plaintiff from the documents in question.27. Furthermore, the compromise and the DCs consequent Order, was passed in a revenue proceeding and this was definitely not a part of a Court proceeding. That being the case, the compromise did not fall under the exception category under Section 17(2)(vi) of Registration Act, 1977 (as applicable to then State of J&K). The above makes it abundantly clear that the compromise in order to have legal effect needed registration under the Registration Act, 1977.28. Significantly, the DCs 24.12.1975 order based on the Compromise, also dealt with 6 Kanals land forming part of Survey No. 1829 & 1838 which went to the ownership of the tenant - Jalil Khan. The subject compromise or the DCs order was not restricted only to 11 Kanals and 15 Marlas as claimed by the Plaintiff. These circumstances would imply that the compromise required registration for it to be of any legal effect. Since title is claimed, and the plaintiff founded his entire case on the compromise, it would necessarily require registration. Accordingly, question B is answered in affirmative.30. The above makes it clear that this case is outside the ambit of any of the exempted sections such as Section 15 (Prohibition on transfer of land), 25 (levy of annual tax), 27 (collection of tax), 28 (Determination of ques-levy of tax related), 51 (repeal & savings) of the 1972 Act. Only such provisions of Chapter V which were relatable to the aforesaid provisions were relevant, and not all sections were within the ambit of exception. Section 31 of the 1972 Act which provided for Appeals and Revisions, was not protected by Section 4 of the Suspension Act, 1975. Thus, the DC, in our mind lacked inherent jurisdiction to either entertain the appeal or endorse the compromise during the suspended phase. In cases where the authority lacked jurisdiction under a special Act and yet exercises powers, without authority of law, any order or decree so passed through such unlawful exercise of power, will be a legal nullity. The deficiency of jurisdiction of the authority cannot be cured by the consent of the parties. The challenge to such an incompetent order could be set up wherever it is sought to be enforced or relied upon, even in execution or in collateral proceedings (1991) 3 SCC 136,  Para. 5 | (2017) 3 SCC 740,  Para. 35. Accordingly answering in favour of the defendants, the DCs order in our opinion can have no legal effect as the same was passed during the operation of Suspension Act, 1975. We have found that the compromise being unregistered cannot confer title on the respondent.Equity as we know follows the law, and whenever there is a conflict between law and equity, it is the law which must prevail. Here the Latin maxim dura lex sed lex, which means the law is hard, but it is the law would apply. Equity can only supplement the law, but it cannot supplant or override it (2007) 2 SCC 230,  Para. 29, and this would have a bearing against the respondent.32. The records in the case show that Sucha Singh, during his life time, had cancelled the two Wills in favour of the plaintiff. This indicates that Sucha Singh was not interested to give any part of his property to the plaintiff. Even otherwise, the suit property is self-acquired property of Sucha Singh, and a donee cannot claim equity in respect of the disposal of self-acquired properties, by a donor. Equity is all about balancing the competing interests and due weightage must be given to the fact that the appellants have been in possession and was nurturing their fathers land for over four decades and the estoppel principle propounded against them by the respondent must give way to the law set out by the statute (2021) 3 SCC 401 .33. Notwithstanding the concurrent finding against them, in a case like this, where the law leans in appellants favour, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co (2007) 8 SCC 120 ., the exercise of extraordinary jurisdiction under Article 136 is found to be merited in this matter.