Dharam Sai vs Smt.Dhankunwar And Others
2022 Latest Caselaw 2766 Chatt

                                        1
         HIGH COURT OF CHHATTISGARH, BILASPUR

                                Order Sheet

                               FA No. 5 of 2007

             Dharam Sai. Versus Smt. Dhankunwar And Others



11.04.2022         Shri Manoj Paranjape appears along with Shri Subhank
             Tiwari, counsel for the appellant.
                   Shri A.K. Prasad apepars along with Shri Rishikant
             Mahobia, counsel for respondent No. 1 to 3.

Smt. Dipti Shukla, P.L. for the State/respondent No.4.

Arguments heard.

                   Reserved for judgment.                  Sd/-

                                                  (Sanjay S. Agrawal)
                                                         Judge

                                                                               AFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                           First Appeal No. 05 of 2007
                            Reserved on 11.04.2022
                           Pronounced on 27/04/2022

 Dharam Sai, S/o Ramdev, Aged about 38 years, R/o Surajpur, Badkapara, Police Station and Tahsil Surajpur, District Surguja (CG) (Plaintiff)

---- Appellant Versus

1. Smt. Dhankunwar, W/o Ramswaroop Sahu, Aged about 50 years, R/o Village Devipur, Police Station and Tahsil Surajpur, District Surguja (CG)

2. Rajlal S/o Ramdular, Aged about 45 years,

3. Heeralal S/o Ramdular, Aged about 32 years,

Resp. No. 2 & 3 are R/o Village Surajpur (Badkapara), Police Station and Tahsil Surajpur, District Surguja(CG)

4. State of Chhattisgarh Through Collector, Surguja Ambikapur, District Surguja (CG) (Defendants) ---- Respondents

For Appellant :Shri Manoj Paranjape appears along with Shri Shubhank Tiwari, Advocate For Respondents 1 to 3 :Shri A.K. Prasad, appears along with Shri Rishikant Mahobia, Advocate For Respondent No.4/State :Smt. Deepti Shukla, Panel Lawyer

Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal

C A V Judgment

1. This appeal has been preferred by the Plaintiff under Section 96 of the

Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'),

questioning the legality and propriety of the judgment and decree dated

30.11.2006 passed in Civil Suit No.11-A/2006, whereby the learned trial

Court has dismissed the Plaintiff's claim. The parties to this appeal shall be

referred hereinafter as per their description before the Court below.

2. The facts which are essential to be stated for adjudication of this appeal

are that the Plaintiff instituted a suit claiming declaration of title and

injunction with regard to the properties described in plaint Schedule "B".

According to the Plaintiff, the properties described in plaint Schedule "A"

were originally held by one Sobran Sahu, who died issue-less on

27.09.1988 and since he was adopted by him from his childhood, being

the son of his brother - Ramdev and the Will was executed by said Sobran

Sahu on 09.06.1977 bequeathing the entire Schedule "A" properties to

him, therefore, he acquired the same by way of inheritance as such after

his death.

3. It is pleaded further that despite the inheritance of the aforesaid properties

upon the sad demise of its erstwhile owner, the mother of Defendant 1,

namely, Dashmet Bai, who was the wife of one Dhongva Teli, has obtained

the revenue papers mutated in her name alone upon the death of said

Sobran Sahu without the knowledge of him, therefore, he was constrained

to institute the suit against her with regard to the plaint Schedule "A"

properties for declaration of title and injunction which was registered as

Civil Suit No.32-A/1990, re-numbered as Civil Suit No.39-A/1998. It is

pleaded further that the claim so made therein was ended on the basis of

compromise decree dated 18.11.1998, whereby the part of plaint Schedule

"A" properties, that is, the properties shown in plaint Schedule "B" came in

his share while properties described in Schedule "C", which were also the

part of plaint Schedule "A" properties, came in share of said Dashmet Bai

and the Plaintiff has, thus, become the owner of said plaint Schedule "B"

properties. Further contention of him is that the part of it, i.e. plaint

Schedule "D" properties, were sold illegally by said Dashmet Bai while

taking undue advantage of recording her name in revenue papers to

Defendant No.2-Rajlal and Defendant No.3-Harilal under the registered

deed of sale dated 11.04.2000, who on the strength of the alleged sale,

started interfering in his peaceful possession, therefore, the Plaintiff has

been constrained to institute the suit in the instant nature, instituted on

03.05.2000.

4. While denying the due execution, attestation and validity of the alleged

Will, it is contested by Defendants 1 to 3 on the ground that the Plaintiff

was never adopted by said Sobran Sahu nor has acquired the land in

question described in plaint Schedule "A". It is contested further on the

ground that the signature of said Dashmet Bai was obtained by the

Plaintiff in the alleged consent letter fraudulently and that by putting undue

influence upon her and, contented further that the contents of it were

neither read over before the Court nor her statement was recorded and

therefore, the Plaintiff cannot claim his right over the plaint Schedule "B"

properties based upon the compromise decree as arrived at on

18.11.1998 in the said suit being Civil Suit No.39-A/1998. It is pleaded

further that since the said Dashmet Bai has duly sold the properties in

question described in plaint Schedule "D" to Defendants 2 and 3 under the

registered deed of sale dated 11.04.2000, therefore, the claim as made by

the Plaintiff is liable to be dismissed.

5. The trial Court after considering the evidence led by the parties, arrived at

a conclusion that the plaint Schedule "A" property was the self-acquired

property of one Sobran Sahu and upon his sad demise on 27.09.1988, it

was inherited by his widow Smt. Dashmet Bai as the Plaintiff has failed to

establish the fact by way of any cogent and reliable evidence that she was

not the widow of him. It held further that the Plaintiff is neither the adopted

son of him as he failed to establish the said fact nor has acquired his

interest under the deed of Will dated 09.06.1977, as he failed to prove its

due execution and attestation in accordance with the provisions prescribed

under Section 68 of the Indian Evidence Act, 1872. It observed further that

the Plaintiff would not be entitled to acquire any interest with regard to the

plaint Schedule "B" properties based upon the alleged compromise decree

dated 18.11.1998 passed in Civil Suit No. 39-A/1998 for want of its

registration under Section 17 of the Registration Act, 1908 (hereinafter

referred to as the 'Act 1908') and thereby held further that the alleged

registered deed of sale dated 11.04.2000 (Ex.P-12) as executed by said

Dashmet Bai in favour of Defendants 2 and 3 with regard to plaint

Schedule "D" properties, cannot be held to be null and void. The Plaintiff's

claim was accordingly dismissed, which has been impugned by way of this

appeal.

6. According to learned counsel appearing for the Appellant/Plaintiff, the

finding of the court below holding that the plaintiff was not found to be the

adopted son of said Sobran Sahu nor the alleged Will was duly executed

by him, is apparently contrary to law. While referring to the compromise

decree, drawn on 18.11.1998 in Civil Suit No.39-A/1998, it is contended

that the Plaintiff has acquired his right, title and interest with regard to the

plaint Schedule "B" properties under the said decree as the same has

already attained its finality by efflux of time and, therefore, the alleged

deed of sale dated 11.04.2000 as executed by said Dashmet Bai in favour

of Defendants 2 and 3 in relation to the plaint Schedule "D" properties

forming a part of plaint Schedule "B" properties would not confer any right

or title upon them. It is contented further that the court below has

committed a serious illegality in holding that for want of registration of the

said compromise decree under sub-section (2) of Section 17 of the Act

1908, it cannot be upheld. In support, he placed his reliance upon the

decisions rendered by the Supreme Court in the matter of Gurcharan

Singh And Ors. Vs. Angrez Kaur And Anr., and Mohammade Yusuf

And Ors. Vs. Rajkumar And Ors., reported in (2020) 10 SCC 250 and

(2020) 10 SCC 264 respectively.

7. On the other hand, learned counsel appearing for Respondents/

Defendants 1 to 3, while placing his reliance upon the decision rendered

by the Supreme Court in the matter of Bhoop Singh Vs. Ram Singh

Major And Ors., reported in (1995) 5 SCC 709, has supported the

impugned judgment and decree as passed by the trial court.

8. I have heard learned counsel for the parties and perused the entire record

carefully.

9. The questions which arise for determination in this appeal are :

(i) Whether the Plaintiff was the duly adopted son of said Sobran Sahu, the erstwhile owner of the property in question ?;

(ii) Whether due execution, attestation and validity of the Will-deed dated 09.06.1977 (Ex.P-2C), purported to have been executed by said Sobran Sahu in favour of the Plaintiff-Dharam Sai, has duly been established ?;

(iii) Whether the court below was justified in disbelieving the compromise decree (Ex.P-10) drawn on 18.11.1998 in Civil Suit No. 39-A/1998 titled as "Dharamsai Vs. Dashmet Bewa Dhongwa Teli & Anr" for want of its registration under sub-section (2) of Section 17 of the Registration Act, 1908 ?

10. Reference to question (i) :

One Sobran Sahu was admittedly, the erstwhile owner of the

property in question described in plaint Schedule "A", who died

issue-less on 27.09.1988. The Plaintiff was the son of his real

brother-Ramdev. According to the Plaintiff, since he was adopted

son of his uncle-Sobran Sahu, who has also bequeathed all his

movable and immovable properties, including the plaint Schedule

"A", therefore, he alone has become the owner of it. The burden to

establish the said facts was, therefore, upon him. However, the

Plaintiff has utterly failed to establish the fact that he was either

adopted by said Sobran Sahu or he was the legatee of him. No

evidence whatsoever has been placed on record in order to show

that at the time of his adoption, consent of his mother was obtained

which is essential to be obtained under the Hindu Adoptions and

Maintenance Act, 1956 (hereinafter referred to as the 'Act 1956'),

nor the necessary plea to this effect was taken by him in the plaint

nor even the statement of any adult member of the village was

recorded so as to hold that the Plaintiff was adopted by him. That

apart, a bare perusal of the copy of plaint (Ex.P-7) filed by the

Plaintiff in his earlier instituted suit which was registered as Civil Suit

No. 32-A/1990, would reveal the fact that his natural father's name

has still been shown to be his father instead of said Sobran Sahu. In

view thereof and in absence of any cogent and reliable evidence led

to this effect, it is difficult to hold that the Plaintiff was adopted by

said Sobran Sahu, as alleged by him and the trial Court has,

therefore, not committed any illegality in holding that he was not the

adopted son of said Sobran Sahu. The question (i) framed, thus, is

answered accordingly.

11. Reference to question (ii) :

According to the Plaintiff, he has acquired all the movable and

immovable properties including the plaint Schedule "A" properties

left by said Sobran Sahu under the deed of Will dated 09.06.1977

(Ex.P-2C) and therefore, he alone has become the owner of it.

However, in order to establish the due execution and attestation of

it, it was incumbent upon him to examine at least one of its attesting

witnesses as required to be examined mandatorily under Section 68

of the Indian Evidence Act, 1872, but he failed to examine any of its

attesting witnesses despite the fact that one of it, namely, Bahbulla

was alive. In absence thereof, the trial court has rightly disbelieved

the execution and attestation of the alleged Will dated 09.06.1977

(Ex.P-2C) and I do not find any illegality or infirmity in the finding of

the trial court in this regard as well.

12. Reference to question (iii) :

It appears from a bare perusal of the plaint that the Plaintiff is

claiming his ownership over the plaint Schedule "B" properties on

the strength of the compromise decree drawn on 18.11.1998

passed in Civil Suit No.39-A/1998. According to him, said Deshmat

Bai, who was the wife of one Dhongwa Teli has illegally succeeded

to get the revenue records mutated in her name in relation to plaint

Schedule "A" properties upon the sad demise of erstwhile owner-

Sobran Sahu while projecting herself to be the widow of him and

therefore, he was compelled to institute the suit against her for the

declaration of title and injunction with regard to the said plaint

Schedule "A" properties. The said suit which was registered as Civil

Suit No.39-A/1998 (old C.S.No.32-A/1990) has ended on

compromise whereby the Plaintiff has been held to be the owner of

the suit properties described in plaint Schedule "B". The alleged

compromise decree was admittedly, not a registered one, based

upon which, the Plaintiff's right was created for the first time. Since

the alleged compromise decree was not a registered one creating

the Plaintiff's right for the first time, therefore, it was held by the trial

court that the alleged decree was not a valid document and no right,

title or interest would, therefore, confer upon him and, the suit was

accordingly dismissed. The question is, therefore, required to be

determined as to whether the alleged compromise decree was

required to be registered under Section 17 of the Indian Registration

Act?

13. Section 17 of the Registration Act provides for registration of documents,

which reads as under :

"17. Documents of which registration is compulsory.--- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

[(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:]

Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.]

(2) Nothing in clauses (b) and (c) of sub-section (1) applies to---

                          (i)      any composition deed; or

                          (ii)     xxxx         xxxx

                          (iii)    xxxx         xxxx

                          (iv)     xxxx        xxxx

                          (v)      xxxx        xxxx

                          (vi)     any decree or order of a Court [except a decree

or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or

(vii) xxxx xxxx

(viii) xxxx xxxx

(ix) xxxx xxxx

(x) xxxx xxxx

14. Sub-section (2) of Section 17 provides that nothing in clauses (b) and (c)

of sub-section (1) applies to items as provided therein including item (vi)

with which I am concerned at this stage for determining the authenticity of

the alleged decree which is admittedly, found to be unregistered. It is to

be noted at this juncture, as observed herein above, that the Plaintiff was

not found to be the owner of the property in question, either being an

adopted son of said Sobran Sahu or as a legatee under the alleged Will

(Ex.P-2C) and his right, therefore, alleged to have been created for the

first time by way of the alleged compromise decree and based upon this

new right, he is claiming to be the owner of the plaint Schedule "B"

properties.

15. In view of the aforesaid background and particularly when new rights have

been created in favour of the Plaintiff with regard to the property in

question valuing more than Rs.100/- by virtue of the said compromise

decree, then such a decree is required to be registered compulsorily under

Section 17 of the Act 1908, as held by Hon'ble the Supreme Court in the

matter of Bhoop Singh Vs. Ram Singh Major and Ors., reported in

(1995) 5 SCC 709, wherein, it has been held at paragraphs 13, 16, 17 and

18 (2) 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.

xxxx xxxx xxxx xxxx

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 pretended consent. If latter be the position, the document is compulsorily registerable.

18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below :

(1) xxxx xxxx xxxx

(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".

16. In the matter of K. Raghunandan And Ors. Vs. Ali Hussain Sabir And

Ors., reported in (2008) 13 SCC 102, where a dispute ensued between

the two neighbours over the passage who had obviously no existing right

over the alleged passage and, it was, therefore, held that the decree would

require registration. Paragraph 38 is relevant for the purpose, which reads

as under :-

"38. A statute must be construed having regard to the purpose and object thereof. Sub-section (1) of Section 17 of

the Act makes registration of the documents compulsory. Sub-section (2) of Section 17 of the Act excludes only the applications of clauses (b) and (c) and not clause (e) of sub- section (1) of Section 17. If a right is created by a compromise decree or is extinguished, it must compulsorily be registered if the compromise decree comprises immovable property which was not the subject-matter of the suit or proceeding. Clause (vi) is an exception to the exception. If the latter part of Clause (vi) of sub-section (2) of Section 17 of the Act applies, the first part thereof shall not apply. As in this case not only there exists a dispute with regard to the title of the parties over the passage and the passage, itself, having not found the part of the compromise, we do not find any infirmity in the impugned judgment".

17. It is to be noted here that the judgment passed in aforesaid matters, i.e.

Bhoop Singh (supra) and K. Raghunandan (supra) was found to be

inconsistent in the matter of Phool Patti and Anr. Vs. Ram Singh (Dead)

Through LRs. and Anr., reported in (2009) 13 SCC 22 and the matter

was, therefore, referred to a larger Bench and the said Bench in the matter

of Phool Patti And Anr. v. Ram Singh (Dead) Through LRs. and Anr.,

reported in (2015) 3 SCC 465, however, did not find any inconsistencies

between the said two judgments.

18. In view of the aforesaid legal position, it is, thus, clear that if the

compromise decree creates a right for the first time, registration thereof

would be required compulsorily, if the value of the immovable property is

Rs.100/- and upwards. Here in the instant matter, the Plaintiff is claiming

his right, title and interest with regard to the plaint Schedule "B" properties

on the strength of the compromise decree dated 18.11.1998 passed in

Civil Suit No.39-A/1998 purported to have been created for the first time

despite the same not having been registered. Therefore, no right as such

could be claimed by him.

19. In so far as the reliance of learned counsel for the Appellant in the matters

of Gurcharan Singh And Others (supra) and Mohammade Yusuf And

Ors. (supra) is concerned, the same is, however, noted to be

distinguishable from the facts involved herein as in both the said decisions

pre-existing right of the Plaintiff was available and, in view of the said

factual scenario, it was held therein that the alleged decree was not

required to be registrable. However, in the instant matter, pre-existing right

of the Plaintiff was not found and instead, the right of him over the suit

property based upon the alleged compromise decree was found to be

created for the first time and, therefore, in view of the principles laid down

in the matter of Bhoop Singh (supra), no right as such could have been

claimed by the Plaintiff.

20. Consequently, the impugned judgment and decree does not suffer from

any illegality or infirmity so as to call for any interference in this appeal.

The appeal, being devoid of merits, is accordingly dismissed. No order as

to costs.

A decree be drawn accordingly.

Sd/-

(Sanjay S. Agrawal) JUDGE

sunita