Ripudaman Singh vs. Tikka Maheshwar Chand - (Supreme Court) (06 Jul 2021)

When the decree holder has a pre-existing right in the property, a decree does not require registration

MANU/SC/0410/2021

Property

The Appellant filed a suit for possession in the year 1978 disputing the Will dated 4th December, 1958 executed in favour of the defendant. The Appellant claimed half share of the land as described in the plaint. During the pendency of suit, a decree was passed on the basis of compromise arrived at between the parties.

The High Court set aside the judgment and decree passed by the first appellate Court and the suit was dismissed on the ground that, the land even though being subject-matter of compromise, was not the subject-matter of the suit and therefore, the decree required registration under Section 17(2)(vi) of the Registration Act, 1908. The only question in the present appeal is whether a compromise decree in respect of land which is not the subject-matter of suit but is part of the settlement between the family members requires compulsory registration in terms of Section 17(2)(vi) of the Registration Act, 1908.

The judgment and decree passed by the High Court is clearly erroneous and cannot be sustained in law. The parties are the sons of late Vijendra Singh. As an heir of deceased, the Appellant had a right in the estate left by the deceased. Therefore, it was not a new right being created for the first time when the parties entered into a compromise before the civil Court but rather a pre-existing right in the property was recognized by way of settlement in Court proceedings.

An aggrieved person can seek enforcement of family settlement in a suit for declaration wherein the family members have some semblance of right in property or any pre-existing right in the property. The family members could enter into settlement during the pendency of the proceedings before the Civil Court as well. Such settlement would be binding within the members of the family. If a document is sought to be enforced which is not recognized by a decree, the provision of clause (v) of sub-section 2 of Section 17 of the Registration Act, 1908 would be applicable. However, where the decree has been passed in respect of family property, clause (vi) of sub-section 2 of Section 17 of the Registration Act, 1908 would be applicable. The principle is based on the fact that, family settlement only declares the rights which are already possessed by the parties.

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.

In Bhoop Singh v. Ram Singh Major and Others 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 view of enunciation of law in Bhoop Singh v. Ram Singh Major and Others, the judgment 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. Appeal allowed.

Tags : REGISTRATION PROVISION APPLICABILITY