Madhya Pradesh High Court
Smt. Sitabai vs Jainarayan S/O Late Shri Thanmal ... on 17 March, 2023
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 17th OF MARCH, 2023
MISC. PETITION No. 4784 of 2021
BETWEEN:-
SMT. SITABAI W/O LATE SHRI GOPAL
PRAJAPATI, AGED ABOUT 55 YEARS,
1. OCCUPATION: NIL 44, JAWAHAR NAGAR,
NEEMUCH, DISTRICT NEEMUCH (MADHYA
PRADESH)
YOGESH S/O LATE SHRI GOPAL PRAJAPATI,
AGED ABOUT 32 YEARS, 44, JAWAHAR NAGAR,
2.
NEEMUCH, DISTRICT NEEMUCH (MADHYA
PRADESH)
MANISH S/O LATE SHRI GOPAL PRAJAPATI,
AGED ABOUT 30 YEARS, 44, JAWAHAR NAGAR,
3.
NEEMUCH, DISTRICT NEEMUCH (MADHYA
PRADESH)
SURESH S/O LATE SHRI GOPAL PRAJAPATI,
AGED ABOUT 28 YEARS, 44, JAWAHAR NAGAR,
4.
NEEMUCH, DISTRICT NEEMUCH (MADHYA
PRADESH)
SMT. JYOTI D/O LATE SHRI GOPAL PRAJAPATI,
AGED ABOUT 28 YEARS, OCCUPATION:
5.
HOUSEWIFE BIAWAR, DIST AJMER,
RAJASTHAN (RAJASTHAN)
.....PETITIONERS
(BY SHRI RANJEET SEN - ADVOCATE)
AND
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Signed by: NEERAJ
SARVATE
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2
JAINARAYAN S/O LATE SHRI THANMAL
DECEASED THROUGH LRS. PARWATI W/O LATE
1.
SHRI JAINARAYAN PRAJAPATI 44 JAWARHAR
NAGAR DISTRICT NEEMUCH (M.P.)
AINARAYAN S/O LATE SHRI THANMAL
DECEASED THROUGH LRSCHRULATA D/O
2.
LATE JAINARAYAN PRAJAPATI OCCUPATION:
NEEMUCH NEEMUCH (MADHYA PRADESH)
AINARAYAN S/O LATE SHRI THANMAL
DECEASED THROUGH LRS SEEMA D/O LATE
3.
JAINARAYAN 44, JAWAHAR NAGAR (MADHYA
PRADESH)
AINARAYAN S/O LATE SHRI THANMAL
DECEASED THROUGH LRS REKHA D/O
4.
JAINARAYAN 44, JAWAHAR NAGAR (MADHYA
PRADESH)
AINARAYAN S/O LATE SHRI THANMAL
DECEASED THROUGH LRS YASHPAL S/O
5.
JAINARAYAN 44, JAWAHAR NAGAR (MADHYA
PRADESH)
AINARAYAN S/O LATE SHRI THANMAL
DECEASED THROUGH LRS ANITA D/O
6.
JAINARAYAN 44, JAWAHAR NAGAR (MADHYA
PRADESH)
.....RESPONDENTS
(BY MS. SHIVANI KUMAWAT - ADVOCATE)
This petition coming on for admission this day, the court passed
the following:
ORDER
1. With consent of learned counsel for the parties the matter is
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Signed by: NEERAJ
SARVATE
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finally heard.
2. By this petition preferred under Article 227 of the Constitution of
India the petitioners have challenged the condition imposed by the
appellate Court in paragraph No.8 of the compromise order/decree
directing for registration of the decree by relying upon the decision of
the Hon'ble Supreme Court in Bhoop Singh V/s. Ram Singh Major
and Others reported in AIR 1996 SC 196 stating that under the decree
rights are being created in favour of the parties for the first time hence
the decree requires registration.
3. Learned counsel for the petitioners has brought to the notice of
this court the subsequent decisions of the Hon'ble Supreme Court in
Mohammade Yusuf and Others V/s. Rajkumar and Others reported
in (2020) 10 Supreme Court Cases 264, Gurcharan Singh and
Others V/s. Angrez Kaur and Another reported in (2020) 10
Supreme Court Cases 250 and Ripudaman Singh V/s. Tikka
Maheshwar Chand reported in (2021) 7 Supreme Court Cases 446.
4. It is submitted that the judgment in the case of Bhoop Singh
(supra) has been considered in the aforesaid judgments and it has been
held that the same is applicable only in respect of a case where rights in
the property is created for the first time. It is submitted that the
compromise decree would require registration only if it comprises
immovable property which is not the subject matter of the suit. In the
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Signed by: NEERAJ
SARVATE
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present case the compromise decree is in respect of the suit property
itself relief regarding which was claimed in the plaint. Under the decree
a pre-existing right has been declared and no new right has been
created.
5. Learned counsel for the respondents has submitted that the Court
below has not in any manner erred in directing the parties to get the
compromise decree registered in case they wished to claim rights
thereunder.
6. I have heard learned counsel for the parties and have perused the
record.
7. In Mohammade Yusuf and Others (supra) the Hon'ble
Supreme Court has held in paragraphs No.6, 7 and 8 as under :-
"6. Under Section 17(1)(b), 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
requires registration. The word "instrument" is not defined in
the Registration Act, but is defined in the Stamp Act, 1899 by
Section 2(14).
7. A compromise decree passed by a court would ordinarily be
covered by Section 17(1)(b) but sub-section (2) of Section 17
provides for an exception for 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. Thus,
by virtue of sub-section (2)(vi) of Section 17 any decree or
order of a court does not require registration. In sub-clause (vi)
of sub-section (2), one category is excepted from sub-clause
(vi) i.e. a decree or order expressed to be made on a
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SARVATE
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compromise and comprising immovable property other than
that which is the subject-matter of the suit or proceeding. Thus,
by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it
is clear that a compromise decree comprising immovable
property other than which is the subject-matter of the suit or
proceeding requires registration, although any decree or order
of a court is exempted from registration by virtue of Section
17(2)(vi). A copy of the decree passed in Suit No. 250-A of
1984 has been brought on record as Annexure P-2, which
indicates that decree dated 4-10-1985 was passed by the Court
for the property, which was subject-matter of the suit. Thus, the
exclusionary clause in Section 17(2)(vi) is not applicable and
the compromise decree dated 4-10-1985 was not required to be
registered on plain reading of Section 17(2)(vi). The High
Court referred to the judgment of this Court in Bhoop Singh v.
Ram Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] , in
which case, the provision of Section 17(2)(vi) of the
Registration Act came for consideration. This Court in the
above case while considering clause (vi) laid down the
following in paras 16, 17 and 18: (SCC pp. 715-16)
"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 praesenti in immovable property of the value of Rs
100 or upwards in favour of other party for the first time, either
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by compromise or pretended 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 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 [Ed.: The reference is to Hemanta Kumari Debi
v. Midnapur Zamindari Co. Ltd., 1919 SCC OnLine PC 41 :
(1918-19) 46 IA 240] and this Court's cases [Ed.: The
reference is to Mangan Lal Deoshi v. Mohd. Moinul Haque,
1950 SCC 760 : AIR 1951 SC 11; Bishundeo Narain v. Seogeni
Rai, 1951 SCC 447 : AIR 1951 SC 280 and Shankar Sitaram
Sontakke v. Balkrishna Sitaram Sontakke, AIR 1954 SC 352] ,
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 [Fazal Rasul Khan v. Mohd-
ul-Nisa, 1943 SCC OnLine Lah 128 : AIR 1944 Lah 394] ,
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
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SARVATE
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property not litigated."
8. In the facts of that case, this Court held that the first suit
cannot really be said to have been decreed on the basis of
compromise, as the suit was decreed "in view of the written
statement filed by the defendant admitting the claim of the
plaintiff to be correct". Further, the earlier decree was held to
be collusive. Two reasons for holding that the earlier decree in
the abovesaid case required registration have been mentioned
in para 19 of the judgment, which is to the following effect:
(Bhoop Singh case [Bhoop Singh v. Ram Singh, (1995) 5 SCC
709] , SCC p. 716)
"19. Now, let us see whether on the strength of the decree
passed in Suit No. 215 of 1973, the petitioner could sustain his
case as put up in his written statement in the present suit,
despite the decree not having been registered. According to us,
it cannot for two reasons:
(1) The decree having purported to create right or title in the
plaintiff for the first time that is not being a declaration of pre-
existing right, did require registration. It may also be pointed
out that the first suit cannot really be said to have been decreed
on the basis of compromise, as the suit was decreed 'in view of
the written statement filed by the defendant admitting the claim
of the plaintiff to be correct'. Decreeing of suit in such a
situation is covered by Order 12 Rule 6, and not by Order 23
Rule 3, which deals with compromise of suit, whereas the
former is on the subject of judgment on admissions.
(2) A perusal of the impugned judgment [Bhoop Singh v. Ram
Singh, 1995 SCC OnLine P&H 288] shows that the first
appellate court held the decree in question as "collusive" as it
was with a view to defeat the right of others who had bona fide
claim over the property of Ganpat. The learned Judge of the
High Court also took the same view."
8. In Gurcharan Singh and Others (supra) the Hon'ble Supreme
Court has held in paragraphs No.18 and 19 as under :-
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SARVATE
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"18. In the written statement, the defendant Bhajan Singh
prayed that suit of the plaintiffs be decreed as prayed. The
pleading in the suit and in the written statement clearly leads to
the conclusion that the suit was filed on the basis of pre-
existing right in favour of the plaintiffs, which was the basis of
the suit. Pre-existing right of the plaintiffs was admitted by the
defendant and decree was passed therein.
19. Thus, the submission of the respondent-plaintiffs that the
suit was not based on pre-existing right of the plaintiffs cannot
be accepted, which is belied by the categorical pleading in the
plaint. In view of the above pleadings, we are of the view that
very basis of the applicability of the judgment of Bhoop Singh
[Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] is knocked out
and is not attracted in the present case. This Court in a recent
judgment in Mohd. Yusuf v. Rajkumar [Mohd. Yusuf v.
Rajkumar, (2020) 10 SCC 264] decided on 5-2-2020 had
occasion to consider Section 17 as well as the judgment of
Bhoop Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] .
While elaborating Section 17, this Court laid down the
following in para 7 : (Mohd. Yusuf case [Mohd. Yusuf v.
Rajkumar, (2020) 10 SCC 264] , SCC pp. 268-69)
"7. A compromise decree passed by a court would ordinarily
be covered by Section 17(1)(b) but sub-section (2) of Section 17
provides for an exception for 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. Thus,
by virtue of sub-section (2)(vi) of Section 17 any decree or
order of a court does not require registration. In sub-clause (vi)
of sub-section (2), one category is excepted from sub-clause
(vi) i.e. 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. Thus,
by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it
is clear that a compromise decree comprising immovable
property other than which is the subject-matter of the suit or
proceeding requires registration, although any decree or order
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of a court is exempted from registration by virtue of Section
17(2)(vi). A copy of the decree passed in Suit No. 250-A of
1984 has been brought on record as Annexure P-2, which
indicates that decree dated 4-10-1985 was passed by the Court
for the property, which was subject-matter of the suit. Thus, the
exclusionary clause in Section 17(2)(vi) is not applicable and
the compromise decree dated 4-10-1985 was not required to be
registered on plain reading of Section 17(2)(vi). ..."
9. In Ripudaman Singh (supra) the Hon'ble Supreme Court has
held in paragraphs No.16, 17 and 18 as under :-
16. The judgments of this Court in Bhoop Singh [Bhoop Singh
v. Ram Singh, (1995) 5 SCC 709] and K. Raghunandan [K.
Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102] were
found to be inconsistent in an order reported in Phool Patti v.
Ram Singh [Phool Patti v. Ram Singh, (2009) 13 SCC 22] and
the matter was thus referred to a larger Bench. The larger
Bench in the judgment reported as Phool Patti v. Ram Singh
[Phool Patti v. Ram Singh, (2015) 3 SCC 465 : (2015) 2 SCC
(Civ) 312] did not find inconsistencies between the two
judgments.
17.Bhoop Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC
709] was a case dealing with both the situations, decree
between the parties where the decree-holder does not have any
pre-existing right in the property and also the situation where
decree-holder has a pre-existing right. It was the second
situation where the decree-holder has a pre-existing right in the
property, it was found that decree does not require registration.
In K. Raghunandan case [K. Raghunandan v. Ali Hussain
Sabir, (2008) 13 SCC 102] , the dispute was not amongst the
family members but between neighbours regarding right over
passage. Obviously, none of them had any pre-existing right
over the immovable property in question.
18. In view of enunciation of law in Bhoop Singh case [Bhoop
Singh v. Ram Singh, (1995) 5 SCC 709] , we find that the
judgment [Tikka Maheshwar Chand v. Ripudaman Singh, 2016
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SCC OnLine HP 3808] and decree of the High Court holding
that the decree requires compulsory registration is erroneous in
law. The compromise was between the two brothers consequent
to death of their father and no right was being created in
praesenti for the first time, thus not requiring compulsory
registration. Consequently, the appeal is allowed and the suit is
decreed.
10. In all the aforesaid judgments the judgment in the case of Bhoop
Singh (supra) has been discussed and explained and it has been held
that the same was a case dealing with a situation where there was a
decree between the parties where the decree holder did not have any
pre-existing right in the property and also the situation where the decree
holder had a pre-existing right. In the second situation where the decree
holder was having a pre-existing right, it was held that decree does not
require registration. It had hence consequently been held consistently in
all the aforesaid judgments that where the compromise decree is in
respect of subject matter of the suit or proceeding in question it does not
require registration and it is only a compromise decree comprising
immovable property other than that which is the subject matter of suit
or proceeding in question which requires registration. It has also been
held that where the decree for the very first time creates right in the
immovable property in favour of the decree holder the same requires
registration.
11. When the present case is seen in light of the aforesaid dictum it is
evident that the suit was filed by plaintiff against the defendant who is
his real brother in respect of a house for possession, mesne profits and
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permanent injunction. It was an undisputed fact between them that the
suit house was earlier held by their father Thanmal ji, who died in 1970.
On 13.03.1969 a patta with respect to the house was executed by
Neemuch Town Improvement Trust in favour of the plaintiff. Thus it
was an admitted fact that the plaintiff was having a pre-existing right in
the property and under the decree no new right has been created in his
favour. It is only a pre-existing right which has been acknowledged and
affirmed.
12. Moreover it is apparent that the decree which has been passed is
in respect of the same subject matter of the suit which was detailed in
the plaint. It cannot in any manner be said that the decree is in respect
of any property which was not a property of the suit. The judgment in
the case of Bhoop Singh (supra) hence was not applicable to the facts
of the present case and the Court below has committed an error in
holding that the compromise decree would be executable only upon the
same being registered in the office of the Registrar.
13. Consequently the petition is allowed and condition No.8 of the
impugned compromise decree dated 20.07.2021 passed in regular Civil
Appeal No.14/2017 by the District Judge, District Neemuch is hereby
quashed. There shall be no order as to costs.
(PRANAY VERMA)
JUDGE
ns
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Signed by: NEERAJ
SARVATE
Signing time: 20-03-2023
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