Orissa High Court
Shantilata Sahoo vs Sub-Registrar on 8 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 8168 of 2023
Shantilata Sahoo .... Petitioner
Mr. Ajit Chandra Mohapatra, Advocate
-versus-
Sub-Registrar, Cuttack .... Opp. Parties
Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
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Head and disposed of on 08.05.2023
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. On the oral prayer of Mr. Mohapatra, learned counsel for
the Petitioner, he is permitted to incorporate State of Odisha
represented through its Secretary, Revenue and Disaster
Management Department as Opposite Party No.1 to the writ
petition in Court itself.
3. Petitioner in this writ petition prays for a direction to
Opposite Party No.2-Sub-Registrar, Cuttack to accept the
certified copy of the judgment and decree dated 26th December,
2022 and 6th January, 2023 respectively passed by learned 3rd
Additional District Judge, Cuttack in RFA No.459 of 2022
(Annexure-2) for registration.
4. Mr. Mohapatra, learned counsel for the Petitioner submits
that CS No.288 of 2021 was dismissed vide judgment dated 19th
SASANKA Digitally signed by
SASANKA SEKHAR
SEKHAR SATAPATHY May, 2022 passed by learned Senior Civil Judge, 1st Court,
Date: 2023.05.10
SATAPATHY 17:04:01 +05'30'
W.P.(C) NO. 8168 of 2023
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Cuttack without accepting the compromise entered into between
the parties. Assailing the same, the Petitioner filed RFA No.459
of 2022, which was disposed of vide judgment dated 26th
December, 2022 with the following observation and direction.
".....In Bhoop Singh versus Ram Singh major and ors
reported in (1995)5 SCC 709 where the Hon'ble Apex
court held that
"the decree or order including compromise
decree granting new right, title and interest in
immovable property of value of Rs.100/- or
above is compulsorily registrable."
In a instance case as the suit land has been
recorded in the name of the appellant who is a female
Hindu, in view of section 14 of the Hindu Succession Act it
is clear that the suit land is the absolute property of the
appellant and as per the terms of compromise a new right
is going to be created in favour of the respondent. In view
of the decision of the Hon'ble Apex Court cited supra the
decree as per the terms of compromise in the present case
requires registration and the parties have to pay the
required stamp duty.
Hence ordered.
ORDER
The appeal is allowed on contest against the
Respondent without cost. The judgment dtd. 19.05.2022
passed by the learned Senior Civil Judge, 1st Court,
Cuttack in Civil Suit No.288 of 2021 is hereby set aside.
The suit be decreed the terms of compromise subject to
payment of the required stamp duties and the compromise
petition shall form part of the decree."
In view of the above findings of the learned appellate Court, the
certified copy of judgment and decree in RFA No.459 of 2022
was presented before the Sub-Registrar, Cuttack-Opposite Party
No.2 for registration. The Sub-Registrar under a misconception
that a judgment and decree arrived on compromise is not
W.P.(C) NO. 8168 of 2023
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registrable, refused to accept the same. Hence, this writ petition
has been filed.
4.1 Mr. Mohapatra, learned counsel for the Petitioner relied
upon the decision in the case of Bhoop Singh Vs. Ram Singh
Major and others, reported in (1995) 5 SCC 709, which has also
been taken note of by learned appellate Court. He, therefore,
submits that since a new right is created in favour of the
Respondent in the aforesaid appeal by virtue of the compromise,
the judgment and decree is compulsorily registrable under
Section 17 (1) of the Registration Act, 1908 (for brevity 'the
Registration Act'). He, therefore, prays for a direction to the Sub-
Registrar, Cuttack to accept the certified copy of the judgment
and decree for registration.
5. Mr. Mishra, learned ASC does not dispute the legal
position. In furtherance to his argument, Mr. Mishra, learned
ASC relied upon the case law in the case of Ripudaman Singh
Vs. Tikka Maheshwar Chand, reported in (2021) 7 SCC 446,
wherein Bhoop Singh Major (supra) has been discussed as
under:-
"14. In respect of a question whether the decree requires
registration or not, this Court in Bhoop Singh v. Ram Singh
Major and Others held that decree or order including
compromise decree creating new right, title or interest in
praesenti in immovable property of value of Rs.100/- or above
is compulsory for registration. It was not the case any pre-
existing right but right that has been created by the decree
alone. This court explained both the situation, where a part has
pre-existing right and where no such right exists. It was
observed as under:
"13. In other words, the court must enquire
whether a document has recorded unqualified and
W.P.(C) NO. 8168 of 2023
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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.
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 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.
xx xx xx
18. The legal position qua clause (vi) can, on the
basis of the aforesaid discussion, be summarized 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 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
W.P.(C) NO. 8168 of 2023
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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."
It is his submission that probably the Sub-Registrar, Cuttack was
confused in view of the ratio decided in Mohammade Yusuf and
others Vs. Rajkumar and others, reported in (2020) 10 SCC
264, wherein it is held as under:-
"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 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 04.10.1985 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
04.10.1985 was not required to be registered on
plain reading of Section 17(2)(vi). The High Court
referred to judgment of this Court in Bhoop Singh Vs. Ram
Singh Major and Others, (1995) 5 SCC 709, in which
case, the provision of Section 17(2)(vi) of Registration Act
came for consideration. ....."
W.P.(C) NO. 8168 of 2023
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He, therefore, submits that such a situation does not arise in this
case, as the property in question was the absolute property of a
female Hindu (the Petitioner) under Section 14 of the Hindu
Succession Act, 1956 and by virtue of a compromise decree, a
new right is created in favour of the Respondent in the aforesaid
appeal. A situation as stated in Mohammade Yusuf (supra) may
arise, when the registration of the compromise decree is sought
for in which the parties to the said decree had a pre-existing right
over the property. Since such a situation does not arise in this
case, the Sub-Registrar should accept the certified copy of the
judgment and decree passed in RFA No.459 of 2022 for
registration.
6. Considering the submission made by learned counsel for
the parties, this Court is of the considered view that law is no
more res integra on the issue that when a new right is created in
favour of a party by way of a compromise decree, the same is
compulsorily registrable under Section 17 (1) of the Registration
Act. When of course, the parties have a pre-existing right over
the property and by virtue of the compromise, only an adjustment
has been made, the same may not attract Section 17 of the
Registration Act, which depends upon the facts and
circumstances of the case. Thus, this Court, without any
hesitation, directs the Sub-Registrar, Cuttack accept the certified
copy of the judgment and decree passed by learned 3rd Additional
District Judge, Cuttack, in RFA No.459 of 2022 for its
registration.
W.P.(C) NO. 8168 of 2023
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7. With the observation and direction, as aforesaid, the writ
petition is disposed of.
8. As requested by Mr. Mishra, learned ASC, a copy of this
order shall be handed over to him for communication and
compliance.
Issue urgent certified copy of the judgment on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
W.P.(C) NO. 8168 of 2023
