Khushi Ram vs Nawal Singh

KHUSHI RAM & ORS. ...APPELLANT(S)

VERSUS

NAWAL SINGH & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed by the plaintiffs of

Civil Suit challenging the judgment dated 16.04.2009

of High Court of Punjab & Haryana dismissing the

second appeal filed by the appellant.

2. The brief facts of the case as emerged from the

pleadings of the parties are:

2.1 One Badlu, who was the tenure-holder of

agricultural land situate in Village Garhi Signature Not Verified Digitally signed by MEENAKSHI KOHLI Date: 2021.02.22 16:16:29 IST Bajidpur, Tehsil and District Gurgaon, had Reason:

two sons Bali Ram and Sher Singh. Sher Singh

1 died in the year 1953 issueless leaving his

widow Smt. Jagno.

2.2 Plaintiffs-appellants are descendents of Bali

Ram. After death of Sher Singh, his widow

inherited share of her late husband, i.e.,

the half of the agricultural property owned

by Badlu. A Civil Suit No.317 of 1991 was

filed by Nawal Singh and two others against

Smt. Jagno in the Court of Sub-Judge, Gurgaon

claiming decree of declaration as owners in

possession of the agricultural land mentioned

in the suit to the extent of half share

situate in Village Garhi Bajidpur. The

plaintiffs claim was that Smt. Jagno, who was

sharer of the half share, has in a family

settlement settled the land in favour of the

plaintiffs, who were the brother’s sons of

Smt. Jagno.

2.3 Smt. Jagno filed a written statement in the

suit admitting the claim of the plaintiffs.

Smt. Jagno also made a statement in the suit

accepting the claim of plaintiffs, the trial

2 court vide its judgment and decree dated

19.08.1991 passed the consent decree in

favour of the plaintiffs declaring the

plaintiffs owners in possession of the half

share in the land.

2.4 The plaintiffs, who were descendents of

brother of husband of Smt. Jagno filed a

Civil Suit No.79 of 1991 in the Court of

Senior Sub-Judge Gurgaon praying for

declaration that the decree passed in Civil

Suit No.317 of 1991 dated 19.08.1991 is

illegal, invalid and without legal necessity.

The plaintiffs also claimed decree of

declaration in their favour declaring them

owners in possession of land in question. In

Suit No.79 of 1991, a joint written statement

was filed by the defendants. Smt. Jagno was

also defendant No.4 in the civil Suit No.79

of 1991. The defendants supported the decree

dated 19.08.1991. The defendants No.1 to 3

claimed land by family settlement out of love

and affection by the defendant No.4, which 3 family settlement was duly affirmed by Civil

Court decree dated 19.08.1991.

2.5 The trial court framed nine issues. Issue

No. 5 being “Whether the decree dated

19.08.1991 passed in civil suit no.317/91

titled Nawal Singh Etc. Vs. Smt. Jagno passed

by Sh. K.B. Aggarwal SJIC, Gurgaon is

illegal, invalid without jurisdiction and

against custom, without legal necessity and

consideration and a result of fraud and undue

influence and is liable to be set aside?

2.6 Issue Nos. 2 to 5 were answered in favour of

defendants. The trial court also rejected

the argument of the plaintiffs that in

absence of registration of decree, no right

or title would pass in favour of the

defendants. Trial court held that

registration is required when fresh rights

are created for the first time by virtue of

decree itself. It was held that in the case

in hand, defendants were having pre-existing

right in the suit property under as in a

4 family settlement defendant No.4 acknowledged

them as owner and surrendered the possession

of the suit property in their favour at the

time of family settlement and the decree

dated 19.08.1991 merely affirms their pre-

existing rights and hence, does not require

registration.

2.7 The plaintiffs aggrieved by the judgment

filed first appeal before the learned

District Judge, which too was dismissed. The

First Appellate Court held that under Section

14(1) of the Indian Succession Act, a Hindu

female become full owner of the property,

which she acquires before the commencement of

the Act and not as a limited owner. The

First Appellate Court also held that

defendants being near relations of defendant

No.4, they cannot be said to be strangers to

her. First Appellate Court also held that

decree did not require registration. The

findings of the trial court were affirmed by

the First Appellate Court dismissing the

5 appeal. Aggrieved against the judgment of

the First Appellate Court, the plaintiffs

filed R.S.A. No.750 of 2002. Second appeal

was admitted on following question of law:-

“Whether in the absence of any pre-existing right with the defendant- respondents 1 to 3, a decree ( Exhibit P.2) suffered by Jagno (who is father's sister of defendant-

respondent) required registration under Section 17(1) of the Indian Registration Act, 1908?”

2.8 The High Court answered the above question

of law against the plaintiffs and in favour

of the defendants-respondents. The High

Court held that judgment and the decree

rendered in Civil Suit No.317 of 1991 dated

19.08.1991 merely recognise the existing

right which was created by the oral family

settlement. High Court further held that

apart from relationship of Smt. Jagno with

defendants-respondents 1 to 3, she has

developed close affinity, love and affection

for defendant respondent Nos.1 to 3 as per

the findings recorded by the learned Courts

6 below. The High Court dismissed the second

appeal, aggrieved against which judgment,

this appeal has been filed.

3. We have heard Shri Ranbir Singh Yadav, learned

counsel for the appellant and Shri Manoj Swarup,

learned senior counsel for the respondent.

4. Learned counsel for the appellants, Shri Yadav

submits that no family settlement could have been

entered by Smt. Jagno in favour of defendant Nos.1 to

3, they being strangers to the family. A Hindu widow

cannot constitute a Joint Hindu Family with the

descendants of her brother, i.e., her parental side.

Family settlement can take place only between

members, who have antecedent title or pre-existing

right in the property proposed to be settled. Smt.

Jagno could have transferred her absolute share in

favour of the respondents or to any stranger only in

accordance with law by complying with the provisions

of the Transfer of Property Act, 1882, the Indian

Registration Act, 1908 and the Indian Stamp Act,

7 1899. Learned counsel further contends that

registration of compromise decree was compulsory by

virtue of Section 17 of the Indian Registration Act

and the decree dated 19.08.1991 having not been

registered, it did not confer any valid title to the

defendant Nos.1 to 3. All the Courts below committed

error in upholding the decree dated 19.08.1991

whereas the decree being an unregistered decree was

liable to be ignored and declared in operative.

5. Shri Manoj Swarup, learned senior counsel for the

respondents refuting the submissions of the learned

counsel for the appellant contends that defendant

Nos.1 to 3 had pre-existing right in the suit

property, which was clear from the pleadings of Civil

Suit No.317 of 1991. In the above suit, it was

categorically pleaded that family

settlement/arrangement took place about two years

back and since then plaintiffs are owners in

possession of land and defendant No.4 had

relinquished all her rights therein.

8

6. It is submitted that decree passed in the Civil

Suit dated 19.08.1991 only declared the existing

rights of the defendant Nos.1 to 3, which was based

on the family settlement. It is submitted that the

defendant Nos.1 to 3 being brother’s sons of Smt.

Jagno, they were not strangers to Smt. Jagno and

family settlement could have been very well entered

by Smt. Jagno with them. It is submitted that the

expression “family” for the purpose of family

settlement is not to be given any narrow meaning; it

should be given a wide meaning to cover the members,

who are by any means related. It is further

submitted that the decree dated 19.08.1991 did not

require any registration under Section 17 of the

Indian Registration Act, 1908. The decree was passed

with regard to subject matter of the suit property,

it was exempted from registration by virtue of

Section 17(2)(vi) of the Indian Registration Act,

1908. Shri Swarup further contends that the family

settlement could have been made out of love and

affection with regard to which there was ample

pleading in the Civil Suit No.317 of 1991 and out of

9 love and affection defendant No.4, Smt. Jagno could

have very well settled the properties in favour of

defendant Nos.1 to 3, her nephews being brother’s

sons.

7. Learned counsel for the parties have relied on

judgments of this Court for their respective

submissions, which shall be referred to while

considering the submissions in detail.

8. The Civil Suit No.79 of 1991, which gives rise to

this appeal was a suit where following reliefs were

claimed by plaintiffs-appellants:-

“10. That the plaintiffs, therefore, pray that a decree for declaration to the effect that the decree in question passed in Civil Suit No.317 of 1991 dated 19.8.1991 is illegal, invalid, without legal necessity and consideration on the grounds stated above in the plaint, and the same does not convey any title in favour of the defendants No.1 to 3 and does not effect any reversionary rights of the plaintiffs and the plaintiffs are owners in possession of the land in question, fully detailed and described in para no.3 of the plaint above, with consequential relief of permanent injunction restraining the defendants further alienating the land in question to

10 anyone else, may kindly be passed in favour of the plaintiffs and against the defendants with costs of this suit.

Any other relief which this Hon’ble Court may deems fit and proper may also be granted to the plaintiffs.”

9. There is no dispute between the parties that

Shri Sher Singh, husband of Smt. Jagno had half share

in the agricultural land situate in village Garhi

Bajidpur, which was suit property. Sher Singh died

in 1953. Smt. Jagno after enforcement of the Hindu

Succession Act, 1956 by virtue of Section 14 became

the absolute owner of the half share of the suit

property. The bone of contention between the parties

centres round the decree dated 19.08.1991 passed by

the Sub-Judge in Civil Suit No.317 of 1991 filed by

defendant Nos.1 to 3 against Smt. Jagno seeking

declaration that they are owners in possession of the

suit land. In Civil Suit No.317 of 1991, following

was pleaded in paragraphs 2 and 3:-

“2. That the parties are closely related to each other, the plaintiffs are nephews of the deft and constituted a Joint Hindu Family. The deft Smt. Jagno Devi is the daughter of Sh. Shib Lal, the grand father of the plaintiffs.

11 3. That the defendant is living with the plaintiffs at Village Chakerpur and the plaintiffs are looking after her in her old age and the deft has no issue. The deft is very happy with the services of the plaintiff rendered to her and out of love and affection, the deft had allotted the above mentioned land to the plaintiffs in equal share in a family settlement /arrangement, which took place about 2 years back and since then the plaintiffs are owners in possession of the said land and the deft had relinquished all rights therein.”

10. In the aforesaid suit, written statement was

filed by Smt. Jagno admitting the claim of the

defendants. The trial court in its decree dated

19.08.1991 held following in paragraph 2:-

“2. The defendant appeared and filed written statement admitting in toto the claim of the plaintiffs. Statements of the parties were also recorded. In view of the written statement and statements of parties, a consent decree in favour of the plaintiffs and against the defendant is passed for declaration as prayed for, leaving the parties to bear their own costs. Decree sheet be prepared and file be consigned to the record room.”

11. In this appeal, following two questions arise for

consideration:-

12 (1) Whether the decree dated 19.08.1991 passed in

Civil Suit No.317 of 1991 requires

registration under Section 17 of the Indian

Registration Act, 1908?; and

(2) Whether the defendant Nos.1 to 3 were

strangers to defendant No.4 so as to disable

her to enter into any family arrangement with

defendant Nos.1 to 3?

Question No.(1)

12. There is no dispute that in the earlier Civil

Suit No.317 of 1991 in which consent decree was

passed on 19.08.1991, the subject matter of suit was

the agricultural land situated in Village Garhi,

Bajidpur. Further the suit was decreed on the

written statement filed by Smt. Jagno accepting the

claim of plaintiffs that there was family settlement

between the parties in which the half share in the

land was given to the plaintiffs of Civil Suit No.317

of 1991. The question is as to whether the decree

passed on 19.08.1991 required registration under

13 Section 17 of the Indian Registration Act, 1908.

Sections 17(1) and 17(2)(vi), which are relevant for

the present case, are as follows:-

“17. Documents of which registration is compulsory.—(l) 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 14 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.

XXXXXXXXXXXXXXXXXX

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

(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

XXXXXXXXXXXXXXXX”

13. The submission of the learned counsel for the

appellant is that there was no existing right in the

plaintiffs of Civil Suit No.317 of 1991, hence the

decree dated 19.08.1991 required registration under

Section 17(1)(b) since decree created right in favour

of the plaintiffs. In support of his submission, he

has placed reliance on judgment of this Court in

Bhoop Singh Vs. Ram Singh Major and Ors., (1995) 5 15 SCC 709 where this Court held that decree or order

including compromise decree granting new right, title

or interest in praesenti in immovable property of

value of Rs.100 or above is compulsorily registrable.

In paragraphs 17 and 18 of the judgment, following

was laid down:-

“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 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.

16 (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 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.”

14. The decree passed in Bhoop Singh’s case (supra)

17 has been quoted in paragraph 2 of the judgment, which

clearly proved that declaration was granted that

plaintiff will be the owner in possession from today.

In the above case, the suit was decreed on the basis

of compromise though the decree is on the ground that

defendant admitted the claim of the plaintiff in

written statement.

15. Learned counsel for the appellant has further

placed reliance on another judgment of this Court in

Civil Appeal No.890 of 2008 – Mata Deen Vs. Madan Lal

& Ors., in which case also, decree was passed on the

ground of family settlement in favour of the

plaintiffs-defendants. The decree passed was

required to be compulsorily registered under Section

17(2)(vi) of the Registration Act, which having not

been done, the judgment was set aside and the case

was remanded for the consideration of the question of

law. The observation of this Court in the above

judgment is to the following effect:-

“………………………..The second Appellate Court was required to examine this aspect of the case. As it is a substantial question of

18 law which fell for consideration under Section 100 CPC, as could be seen, the impugned judgment passed by the High Court is simply concurred with the finding of fact concurred with by the first Appellate Court in its judgment in exercise of its appellate jurisdiction and it had not adverted to the substantial question of law with respect to compulsory registration of a decree in favour of the first defendant and the consequences for non registration of a decree under Section 17(2)(vi) of the Act and the law laid down by this Court in the case of Bhoop Singh vs. Ram Singh Major & Ors., (1995) 5 SCC 709 is not applied to the case on hand, which rendered the impugned judgment and decree bad in law.

In view of the reasons stated supra, we set aside the impugned judgment and decree passed by the High Court and remand the matter to it with a request to reconsider the matter after framing the substantial questions of law that would arise for consideration and hear the parties and pass appropriate orders in accordance with law. Since the matter is of 1995 we request the High Court to dispose of the matter as expeditiously as possible but not later than six months from the date of receipt of a copy of this Order.

The appeal is disposed of accordingly.”

16. From the above judgment, it is not clear as to

whether the decree, which was passed on the basis of 19 family settlement, relate to the suit property or the

property which was covered in the decree was not part

of the suit land. The above fact is crucial and it

is yet to be determined in view of the remand by this

Court, hence, the said judgment cannot be said to be

lend any support to the learned counsel for the

appellant.

17. Shri Manoj Swarup, learned counsel for the

respondents has on the other hand placed reliance on

judgment of Som Dev and Ors. Vs. Rati Ram and Anr.,

(2006) 10 SCC 788. The above was a case where decree

was based on an admission recognising pre-existing

rights under family arrangement. This court held

that in the above case, the decree did not require

registration under Section 17(1)(b).

18. This Court in a subsequent judgment in K.

Raghunandan and Ors. Vs. Ali Hussain Sabir and Ors.,

(2008) 13 SCC 102, Court had occasion to interpret

Section 17 and laid down following in paragraphs 23,

24, 25 and 28:-

20

“23. Sub-section (2) of Section 17 of the Act, however, carves out an exception therefrom stating that nothing in clauses

(b) and (c) of sub-section (1) of Section 17 would inter alia apply to “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”. Even if the passage was not the subject-matter of the suit, indisputably, in terms of the Code of Civil Procedure (Amendment) Act, 1976, a compromise decree was permissible.

24. A plain reading of the said provision clearly shows that a property which is not the subject-matter of the suit or a proceeding would come within the purview of exception contained in clause (vi) of sub-section (2) of Section 17 of the Act. If a compromise is entered into in respect of an immovable property, comprising other than that which was the subject-matter of the suit or the proceeding, the same would require registration. The said provision was inserted by Act 21 of 1929.

25. The Code of Civil Procedure (Amendment) Act, 1976 does not and cannot override the provisions of the Act. The purported passage being not the subject- matter of the suit, if sought to be transferred by the respondent-defendants in favour of the appellant-plaintiffs or if by reason thereof they have relinquished their own rights and recognised the rights of the appellant- plaintiffs, registration thereof was imperative. The first appellate court held

21 so. The High Court also accepted the said findings.

28.Bhoop Singh [(1995) 5 SCC 709], inter alia, lays down: (SCC p. 715, para 18)

“18. (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.” (emphasis in original)

Thus, indisputably, if the consent terms create a right for the first time as contradistinguished from recognition of a right, registration thereof would be required, if the value of the property is Rs 100 and upwards.”

19. In the above judgment, the case of Bhoop Singh

was also considered and distinguished. In a recent

judgment delivered by Two Judge Bench of this Court

of which one of us was also member (Ashok Bhushan,

22 J.), the judgment of Bhoop Singh and Som Dev came to

be considered in Mohammade Yusuf & Ors. Vs. Rajkumar

& Ors., 2020(3) SCALE 146. The question arose in the

above case was also non-registration of a decree on

the basis of which the Court has refused to admit the

decree in evidence in a subsequent suit. This Court

had occasion to interpret Section 17 and had also

considered the Bhoop Singh and Som Dev’s case. In

paragraphs 6, 8, 13 and 14 of the judgment, which are

relevant are as follows:-

“6. 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

23 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 Vs. Ram Singh Major and Others, (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:

“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

24

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 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 25 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 origin in the aforesaid decision of the 26 Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.”

8. Following the above judgment of Bhoop Singh (supra), the High Court held that since the compromise decree dated 4-10-

1985 did not declare any pre-existing right of the plaintiff, hence it requires registration. The High Court relied on the judgment of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another (supra) and made following observations in paras 11, 12 and 13:

“11. In the present case, in the earlier suit CS No. 250-A/1984 the petitioner had claimed declaration of title on the plea of adverse possession and the compromise decree was passed in the suit. The very fact that the suit was based upon the plea of adverse possession reflects that the petitioner had no pre-existing title in the suit property. Till the suit was decreed, the petitioner was a mere encroacher, at the most denying the title of lawful owner.

12. The Supreme Court in the matter of Gurdwara Sahib v. Gram Panchayat Village Sirthala reported in (2014) 1 SCC 669 has settled that declaratory decree based on plea of adverse possession cannot be claimed and adverse possession can be used 27 only as shield in defence by the defendant. It has been held that:

“7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership.

Only if proceedings filed against the appellant and appellant is arrayed as the defendant that it can use this adverse possession as a shield/defence.”

13. The plea of the petitioner based upon Section 27 of the Limitation Act is found to be devoid of any merit since it relates to the extinction of the right of the lawful owner after expiry of the Limitation Act, but in view of the judgment of the Supreme Court in Gurdwara Sahib (supra), the petitioner cannot claim himself to be the owner automatically after the expiry of the said limitation.” 28

13. This Court in Som Dev v. Rati Ram and Another, (2006) 10 SCC 788 while explaining Section 17(2)(vi) and Sections 17(1)(b) and (c) held that all decrees and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject-matter of the suit do not require registration. In para 18, this Court laid down the following:

“18. ………………… But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit………………..”

14. In the facts of the present case, the decree dated 4-10-1985 was with regard to the property, which was the subject-matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and the present case is covered by the main exception crafted in Section 17(2)

(vi) i.e. “any decree or order of a court”. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clauses (b) and (c) of sub-section (1) applies to any decree or order of the court, we are of the view that the compromise decree dated 4-10-1985 did not require registration and the learned Civil Judge as well as the 29 High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 7-1-2015 as well as the judgment of the High Court dated 13-2-

2017. The compromise decree dated 4-10- 1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly.”

20. This Court held that since the decree which was

sought to be exhibited was with regard to the

property which was subject matter of suit, hence, was

not covered by exclusionary clause of Section 17(2)

(vi) and decree did not require registration. The

issue in the present case is squarely covered by the

above judgment. We, thus, conclude that in view of

the fact that the consent decree dated 19.08.1991

relate to the subject matter of the suit, hence it

was not required to be registered under Section 17(2)

(vi) and was covered by exclusionary clause. Thus,

we, answer question No.1 that the consent decree

dated 19.08.1991 was not registrable and Courts below

have rightly held that the decree did not require

registration.

Question No.2

30

21. The submission of the learned counsel for the

appellant is that the consent decree was passed in

favour of nephews of Smt. Jagno, who do not belong to

the family of the plaintiffs-appellants. It is

submitted that plaintiffs-appellants belonged to the

family of Badlu, who was the tenure-holder of the

property. It is submitted that the defendants-

respondents belong to family of Smt. Jagno being

brother’s son of Smt. Jagno, i.e., nephews, hence,

they belong to different family and no family

arrangement could have been entered with them.

22. Before we answer the above issue, it is necessary

to find out what is the concept of family with regard

to which a family settlement could be entered. A

Three-Judge bench of this Court in Ram Charan Das Vs.

Girjanandini Devi and Ors., 1965 (3) SCR 841 had

occasion to consider a family settlement regarding

the immovable property, this Court laid down that

every party taking benefit under a family settlement

must be related to one another in some way and have a

possible claim to the property or a claim or even a

31 semblance of a claim. Following was laid down at

page 851:-

“....................In the first place once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as the Privy Council pointed out in Mst. Hiran Bibi case [AIR 1914 (PC) 44] in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiaopa Gounden [LR 46 I.A. 72] that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection..................

23. A Three Judge Bench in the celebrated judgment of

this Court in Kale and Ors. Vs. Deputy Director of

Consolidation and Ors., (1976) 3 SCC 119 had

elaborately considered all contours of the family

settlement. This Court laid down that term “family”

has to be understood in a wider sense so as to

32 include within its fold not only close relations or

legal heirs but even those persons who may have some

sort of antecedent title, a semblance of a claim or

even if they have a spes successionis. In paragraphs

9 and 10, this Court laid down following:-

“9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:

“The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made,

33 although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.”

The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain .and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts 34 have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:

“A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.

The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term “family arrangement” is applied.

Family arrangements are governed by principles which are not applicable to dealings between 35 strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.”

10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

“(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary 36 only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

37 (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

24. After reviewing the earlier decision, this Court

laid down following in paragraph 19:-

“19. Thus it would appear from a review of the decisions analysed above that the courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the courts is that if by consent of parties a matter has been settled, it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable grounds.”

25. In the above case, the Kale, with whom the two

sisters of his mother entered into family settlement

was not a legal heir within meaning of U.P. Tenancy

Act, 1939 but the family settlement entered with Kale

was upheld by this Court. Following was laid down in

paragraph 27:-

“27. As regards the first point it appears to us to be wholly untenable in law. From the principles enunciated by us and the

38 case law discussed above, it is absolutely clear that the word “family” cannot be construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property. Even so it cannot be disputed that appellant Kale being the grandson of Lachman and therefore a reversioner at the time when the talks for compromise took place was undoubtedly a prospective heir and also a member of the family. Since Respondents 4 and 5 relinquished their claims in favour of appellant Kale in respect of Khatas Nos. 5 and 90 the appellant, according to the authorities mentioned above, would be deemed to have antecedent title which was acknowledged by Respondents 4 and 5. Apart from this there is one more important consideration which clearly shows that the family arrangement was undoubtedly a bona fide settlement of disputes. Under the family arrangement as referred to in the mutation petition the Respondents 4 and 5 were given absolute and permanent rights in the lands in dispute. In 1955 when the compromise is alleged to have taken place the Hindu Succession Act, 1956, was not passed and Respondents 4 & 5 would have only a limited interest even if they had got the entire property which would ultimately pass to appellant Kale after their death. Respondents 4 & 5 thought that it would be a good bargain if by dividing the properties equally they could retain part of the properties as absolute owners. At that time they did not know that the Hindu Succession Act would be passed a few months later. Finally the compromise sought to divide the properties between the children of Lachman, namely, his two daughters and his daughter's son appellant Kale in equal shares and was, therefore, both fair and equitable. In 39 fact if Respondents 4 & 5 would have got all the lands the total area of which would be somewhere about 39 acres they might have to give away a substantial portion in view of the ceiling law. We have, therefore, to see the circumstances prevailing not after the order of the Assistant Commissioner was passed on the mutation petition but at the time when the parties sat down together to iron out differences. Having regard to the circumstances indicated above, we cannot conceive of a more just and equitable division of the properties than what appears to have been done by the family arrangement. In these circumstances, therefore, it cannot be said that the family settlement was not bona fide. Moreover, Respondents 4 and 5 had at no stage raised the issue before the revenue courts or even before the High Court that the settlement was not bona fide. The High Court as also Respondent 1 have both proceeded on the footing that the compromise was against the statutory provisions of law or that it was not registered although it should have been registered under the Registration Act.”

26. Reverting to the facts of the present case,

admittedly, the defendants-respondents were nephews,

i.e., brother’s sons of Smt. Jagno. We need to look

into the Hindu Succession Act, 1956, Section 15,

which deals with the general rules of succession in

the case of female Hindus for properties inherited by

female Hindus, which are devolved in according to

40 Sections 15 and 16. Section 15(1), which is relevant

is as follows:-

“15. General rules of succession in the case of female Hindus.—(1)The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a) firstly, upon the sons and daughters (including the children of any pre- deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.”

27. A perusal of Section 15(1)(d) indicates that

heirs of the father are covered in the heirs, who

could succeed. When heirs of father of a female are

included as person who can possibly succeed, it

cannot be held that they are strangers and not the

members of the family qua the female.

28. In the present case, Smt. Jagno, who as a widow

of Sher Singh, who had died in 1953, had succeeded to

half share in the agricultural land and she was the

absolute owner when she entered into settlement. We,

41 thus, do not find any merit in the submission of

learned counsel for the appellants that the

defendants-respondents were strangers to the family.

29. In view of our discussions on above two

questions, we do not find any merit in this appeal.

All the Courts have rightly dismissed the suit of the

plaintiffs-appellants, which need no interference.

This appeal is dismissed. Parties shall bear their

own costs.

......................J. ( ASHOK BHUSHAN )

......................J. ( R. SUBHASH REDDY ) New Delhi, February 22, 2021.

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