GURCHARAN SINGH & ORS. versus ANGREZ KAUR & ANR. on 19 March 2020

332

SUPREME COURT REPORTS

[2020] 14 S.C.R.

A

GURCHARAN SINGH & ORS.

v.

ANGREZ KAUR & ANR.

(Civil Appeal No. 6835 of 2009)

BMARCH 19, 2020

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Registration Act, 1908: s.17 – Case of appellants was thatthey were looking after one ‘B’, the sole defendant (owner of thesuit property) who was divorced long back and was staying withCthem – His daughters (respondents) had left with their mother afterthe divorce and never met him – Sole defendant had executedregistered will in favour of appellants and also a family settlementwas effected in which suit property was given to the appellants inequal share – Sole defendant in a suit filed by appellants admittedDthe claim of the appellants that a registered will was executed byhim in respect of the suit property in favour of the appellants andalso a family settlement was effected in which suit property wasgiven to the appellants in equal share – Suit was decreed on thebasis of admission of the sole defendant and after the decree,mutation was effected in favour of the appellants – After the deathEof the sole defendant, the said decree was challenged by therespondents as null and void on the ground that it was not registeredand therefore was not valid decree – Held: The suit was based onpre-existing right and the decree was expressly covered by expression“any decree or order of the Court” under s.17(2)(vi) – Decree andForder did not require registration and were fully covered bys.17(2)(vi), which contains exclusion from registration as requiredin s.17(1) – Sequence of events clearly indicated that the soledefendant of his own volition wanted to give the entire property tothe defendants due to the circumstances of the case, in which hewas placed – Therefore, the decree cannot be held to be sufferingGfrom any fraud or coercion as contended by the respondents.

Allowing the appeal, the Court

HELD: 1. Suit filed by the appellants against ‘B’ relates tothe suit property described in plaint and the decree was passed H

only with regard to suit property. The decree dated 09.01.1995was, thus, expressly covered by expression “any decree or orderof a Court”. When legislature has specifically excludedapplicability of clause (b) and (C) with regard to any decree ororder of a Court, applicability of Section 17(1)(b) cannot beimported in Section 17(2)(v) by any indirect method. Decree andorder dated 09.01.1995 did not require registration and were fullycovered by Section 17(2)(vi), which contains exclusion fromregistration as required in Section 17(1). High Court as well asFirst Appellate Court erred in coming to the conclusion thatdecree dated 19.01.1995 required registration and due to notregistered is null and void. [Para 17]

Bhoop Singh v. Ram Singh Major and Others, (1995) 5SCC 709 : [1995] 3 Suppl. SCR 466 – heldinapplicable.

Mohammade Yusuf & Ors. v. Rajkumar & Ors. CivilAppeal No. 800 of 2020 decided on 05.02.2020 –referred to.

2. ‘B’ had executed Will dated 02.09.1986, which was aregistered Will and pleaded in paragraph 2 of the plaint. Inparagraph 3 of the plaint, it was also pleaded that pursuant to aFamily Settlement dated 15.06.1994 by which ‘B’ decided to allotplaintiffs in equal share and relinquished all his rights in the suitproperty, which pleadings were admitted by ‘B’ in his statement.The decree was passed on 09.01.1995 on the basis of whichmutation was sanctioned on 03.03.1995. ‘B’ was admittedly alivetill 24.04.1998 and in his lifetime, he never objected the decreeor mutation in favour of the defendants. It has been accepted bythe Courts below that ‘B’ and ‘G’ were divorced and which divorcewas recorded in writing on 15.09.1973 as proved before theCourts below. ‘G’ after 15.09.1973 along with daughters startedliving with brother of ‘B’ and thereafter never returned to ‘B’.The Courts have found that ‘B’ lived with the defendants afterthe divorce, who were taking care of him. The execution ofregistered Will by ‘B’ on 02.09.1986 in favour of the defendantsand further his admission that all the claim of the defendants inSuit No. 556 are correct and accepting that he has relinquished AB

C

D

E

F

G

H

Ahis rights in favour of the respondents clearly disprove any groundof fraud either on the Court or on ‘B’. Sequence of events clearlyindicate that ‘B’ of his own volition wanted to give the entireproperty to the defendants due to the circumstances of the case,in which ‘B’ was placed. There is thus no substance in thesubmission that any fraud was played in obtaining decree datedB09.01.1995 by the defendants. [Para 20][347-A-C; D-H]

Som Dev and Others v. Rati Ram and Another, (2006)10 SCC 788 : [2006] 5 Suppl. SCR 778 – referred to.

Case Law Reference

C[1995] 3 Suppl. SCR 466held inapplicablePara 14[2006] 5 Suppl. SCR 778referred toPara 15

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6835

of 2009

DFrom the final Order dated 09.05.2008 of the High Court of Punjaband Haryana at Chandigarh in Regular Second Appeal No. 3472 of 2004.

Pallav Sisodia, Sr. Adv., Ms.Swarupama Chaturvedi, Ms. BabitaYadav, Ashutosh Mohan, Mukesh Kumar, Ms. Aparna Trivedi, AmanJha, R.C. Kohli, Advs. for the Appellants.

E

Dhruv Mehta, Sr. Adv., S.N. Chopra, Mrs. Reeta Dewan Puri,Jasan Chopra, J.S. Marahatta, P.N. Puri, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

F

This is a defendant’s appeal challenging the judgment of the HighCourt of Punjab & Haryana dismissing the Regular Second Appeal No.3472 of 2004 of the appellants. The plaintiffs-respondents suit fordeclaration was dismissed by the trial court which decree was reversedby First Appellate Court decreeing the suit. The High Court affirmed theGdecree of First Appellate Court.

2. The brief facts of the case giving rise to this appeal are:- 2.1. One Bhajan Singh was owner of suit land situated in VillageSiraj Majra, Tehsil Amloh, District Fatehgarh Sahib. Bhajan Singh wasmarried with Gurmail Kaur. Two daughters (namely Angrez Kaur andHParamjit Kaur) were born to Bhajan Singh with Gurmail Kaur. Between Bhajan Singh and Gurmail Kaur, a divorce in writing was entered on15.09.1973 whereafter Gurmail Kaur started residing with one MagharSingh, the brother of Bhajan Singh in village Jalowal. Gurmail Kaur alsotook alongwith her both the daughters who were minors at that time toVillage Jalowal where they all resided with Maghar Singh.

2.2. Bhajan Singh resided in Village Siraj Majra with GurcharanSingh, Gurnam Singh and Kulwant Singh, the appellants, who lookedafter Bhajan Singh. Bhajan Singh executed a registered Will dated02.09.1986 in favour of Gurcharan Singh, Gurnam Singh and KulwantSingh, the appellants. A Civil Suit No. 556 dated 21.09.1994 was filed bythe appellants impleading the Bhajan Singh as the sole defendant prayingfor declaration to the effect that plaintiffs are the owners and in possessionof the suit land.

2.3. In the plaint, the plaintiff pleaded that defendant had executeda registered Will in favour of the plaintiffs, which was made as perdefendant’s free will and consent and which was attested and dulyregistered by Sub-Registrar. It was further pleaded in the plaint thatdefendant effected a Family Settlement on 15.06.1994 in which suitproperty was given to the plaintiffs in equal share. In the suit, a writtenstatement was filed by the defendant – Bhajan Singh on 03.12.1994where he admitted the plaint allegations and also prayed that decree bepassed in favour of the plaintiffs. On the same day, i.e., 03.12.1994,Bhajan Singh also recorded his statement in the Court, where he statedthat averments in the plaint are correct and he has no objection if the suitof the plaintiff is decreed.

2.4. The Court of Additional Senior Sub Judge, Amloh decreedthe suit on 09.01.1995. On the basis of admission by the defendant ofthe claim of the plaintiffs after decree dated 09.01.1995 mutation wasalso affected of the land in suit in favour of the plaintiff on 03.03.1995.Bhajan Singh died on 24.04.1998.

2.5. After death of Bhajan Singh both Angrez Kaur and ParamjitKaur filed Civil Suit No. 167 of 19.05.1998 praying for declaration to theeffect that decree and judgment in Civil Suit No. 556 of 21.09.1994decided on 09.01.1995 in respect of the suit property is wrong, withoutjurisdiction, illegal, null and void, ineffective and inoperative qua theproprietary rights of the plaintiffs as heirs of the said Bhajan Singh.

A

BC

D

E

F

G

H

A2.6. In the suit filed by the plaintiffs, the present appellants, whowere impleaded as defendants filed a written statement refuting theplaint allegations. It was pleaded by defendants-appellants that afterdivorce of Bhajan Singh and Gurmail Kaur on 15.09.1973, Bhajan Singhwas residing with defendants, who were serving Bhajan Singh. BhajanSingh out of his free will executed a Will on 02.09.1986 in favour of theBdefendants. In the suit filed by the defendants -Suit No. 556 of 21.09.1994,Bhajan Singh filed a statement admitting the claim of the defendantsincluding the confirmation regarding execution of Will in favour of thedefendants. It is the defendants, who are in possession of suit land, inwhose favour, mutation has also been affected. The plaintiffs had noCconcern with Bhajan Singh, who was residing with defendants at VillageSiraj Majra. The vote and ration card of Bhajan Singh was with thedefendants, who were serving him like their father. A replication wasalso filed by the plaintiffs where Family Settlement as well as the Willdated 02.09.1986 was denied. The trial court vide its judgment and orderdated 05.03.2003 dismissed the suit of the plaintiffs.D

2.7. The plaintiffs aggrieved by the said judgment filed an appealbefore District Judge. The first appeal filed by the plaintiffs was decreedand allowed by learned Additional District Judge vide its judgment dated13.08.2004. The defendants filed Regular Second Appeal before theHigh Court, which was dismissed by the impugned judgment. This appealEhas been filed by the defendants aggrieved with the judgment of theHigh Court.

3. We have heard Shri Pallav Sisodia, learned senior counsel andMrs. Swarupama Chaturvedi, learned counsel for the appellant. ShriDhruv Mehta, learned senior counsel had appeared for the respondents.F

4. Shri Pallav Sisodia, learned senior counsel for the appellantcontends that both First Appellate Court and High Court erred in decreeingthe suit of the plaintiffs. The trial court has rightly dismissed the suit ofthe plaintiffs holding that decree dated 09.01.1995 was a valid decree,which did not require any registration. The claim of the appellants ofGdeclaration as owner in possession of the suit property in Civil Suit No.556 was admitted by Bhajan Singh, who filed the written statement andgot recorded his statement admitting the claim of the plaintiffs. The decreedated 09.01.1995 was not based on any fraud or coercion. Bhajan Singhat his own free will had decided to give the suit property to the appellants,Hwhich is clearly depicted by executing a registered Will dated 02.09.1986

in favour of the appellants and further after the decree dated 09.01.1995accepting the mutation in favour of the appellants. Divorce betweenBhajan Singh and Gurmail Kaur took place on 15.09.1973 and GurmailKaur thereafter started residing with Maghar Singh, brother of BhajanSingh and never came back to Bhajan Singh. There was no relationbetween Gurmail Kaur and Bhajan Singh after the divorce dated15.09.1973. The plaintiffs also went alongwith Gurmail Kaur after thedivorce and throughout lived with Maghar Singh and Gurmail Kaur andnever came to see their father Bhajan Singh. The Will dated 02.09.1986was validly executed, which Will was admitted by Bhajan singh in hiswritten statement filed in Suit No. 556. When Bhajan Singh has admittedthe execution of Will dated 02.09.1986, Courts below committed error innot accepting the Will due to want of examination of attesting witnesswhereas Will was proved by the defendants-appellants by producingscribe, who scribed the Will as well as clerk from Registrar’s Office,who proved the registration of the Will. It is further submitted that oralFamily Settlement dated 15.06.1994 giving the suit property by BhajanSingh in favour of the defendants was a valid settlement even thoughdefendants were not related by blood as Uncle and Nephew but BhajanSingh was living with the defendants after the divorce throughout.Defendants treated Bhajan Singh as member of their family and servedthem. Family Settlement in above facts was valid Family Settlement. Itis not necessary that person, who is given a right in any property shouldbe necessarily a blood relation. It is further submitted that both the FirstAppellate Court and the High Court erred in holding that compromisedecree dated 09.01.1995 required compulsory registration under Section17 of Registration Act, 1908. High Court has discarded the compromisedecree dated 09.01.1995 on the ground that same required compulsoryregistration and the decree being not registered was not valid decree.

5. Shri Dhruv Mehta, learned counsel for the plaintiffs-respondentssubmits that decree dated 09.01.1995 was obtained by fraud and onfalse allegations made in the plaint. It is submitted that appellants, whowere plaintiffs in the above suit described themselves as nephews ofBhajan Singh and Bhajan Singh as Uncle, which relationship was notproved, hence, decree was obtained by playing fraud. It is furthersubmitted that decree dated 09.01.1995 was compulsorily registrableunder Section 17 and it having not been registered First Appellate Courtand the High Court has rightly discarded the decree. It is submitted thatthe Will dated 02.09.1986 has not been accepted by all the three courts.

A

B

C

D

E

F

G

H

AIt is submitted that under Section 68 of the Evidence Act, a Will requiresattestation. It is submitted that out of the two attesting witnesses namelyDarshan Singh and Gurdev Singh, Gurdev Singh was admittedly alive,which was admitted by defendant himself in his statement and GurdevSingh having not been produced to prove the Will, the Will has rightlybeen held not to be proved, which findings need no interference in thisBappeal. The scribe, who appeared to prove the Will cannot be treated asan attesting witness, since he had no animus to attest the Will. It isfurther submitted that there can be no Family Settlement in favour of aperson, who has no relation with the owner of the property. The FamilySettlement dated 15.06.1994 was no Family Settlement.C6. Learned counsel for the parties have relied on various judgmentsof this Court, which we shall refer to hereinafter while considering thesubmissions in details.

7. We may notice the issues framed by the trial court and thefindings returned thereon. On the basis of the pleadings of the parties,Dtrial court framed following issues:- “1. Whether impugned judgment and decree passed in Civil SuitNo. 556 of 21.09.1994 decided on 09.01.1995 titled asGurcharan Singh etc. Vs. Bhajan Singh, by S. Dalip Singhthe then Additional Senior Sub Judge, Amloh in respect ofEproperty earlier in name of Bhajan Singh in the subject matterof the suit is illegal, null and void or otherwise bad as allegedin the plaint, if so its effect? OPP

2. Whether plaintiffs are entitled to possession of the suit land?OPPF

3. Whether Sh. Bhajan Singh executed a legal and valid willdated 09.02.98 in favour of defendants, if so its effect? OPD

4. Whether suit is not maintainable and competent in the presentform? OPD

G5.Whether plaint is liable to be rejected u/o 7 rule 11 CPC?OPD

6. Whether suit is within limitation? OPD

7. Whether defendants have taken possession of the suit landfrom plaintiffs 3 weeks before filing of the suit? OPDH

8. Relief”

8. Issue No.1 was decided in favour of the defendants holding thedecree dated 09.01.1995 as a valid decree. Issue No.2 was decided infavour of the defendant. The issue No. 3 regarding Will dated 02.09.1986was decided in favour of the plaintiffs holding that defendant failed toprove the Will dated 02.09.1986 since one of the attesting witnesseswas alive but was not produced by the defendants. Trial court held thesuit to be within limitation. The trial court has also returned a finding thatit has been proved from the evidence of PW1, the plaintiff that theynever visited their father from Village Jalowal, which clearly establishthat Bhajan Singh resided with the defendants, who used to look afterand serve him. The trial court also returned a finding that there was noelement of fraud, misrepresentation or coercionin obtaining a decreedated 09.01.1995. The First Appellate Court reversed the judgment ofthe trial court holding that the decree dated 09.01.1995 first time createdrights in favour of the defendants, hence it required registration. It washeld that decree dated 09.01.1995 was not a valid document and wasnull and void and non est being an unregistered decree. The findings ofthe trial court with regard to Will were not interfered with by the FirstAppellate Court. In the Regular Second Appeal filed by the defendants,the decree of the First Appellate Court was confirmed. In the RegularSecond Appeal, following substantial questions of law were framed bythe High Court:- “a)Whether in the facts and circumstances of the instant case,the decree dated 09.01.1995 which has, otherwise, beenproved to have been suffered by Bhajan Singh in favour ofthe appellant, could be ignored by the learned Ist AppellateCourt on the ground of non-registration particularly whenthe decree was based on earlier family settlement?

b)Whether in the facts and circumstances of the instant case,the suit filed by the plaintiff/respondents could be said to bewithin limitation?

c)Whether in the facts and circumstances of the instant case,the registered Will in favour of the appellants could beignored by the learned courts below when the appellantshad led affirmative evidence proving the due execution andvalidity of the Will?

A

B

E

F

G

H

340SUPREME COURT REPORTS

[2020] 14 S.C.R.

Ad)Whether the interpretation put by the learned Ist AppellateCourt to the meaning of Family can be sustained in law?

9. All the substantial questions of law have been answered by theHigh Court in favour of the plaintiffs and against the defendants. Thefirst substantial question of law framed by the High Court was withBregard to non-registration of decree dated 09.01.1995. We may firstconsider the rival submissions of the parties on the question of registrationof the decree dated 09.01.1995. The First Appellate Court and the HighCourt both have upheld the decree 09.01.1995 as null and void due tonon-registration of decree. The question is as to whether the decreedated 09.01.1995 required registration under Section 17 of the RegistrationCAct. Section 17 of the Registration Act provides for registration ofdocuments, which is to the following effect:- “17. Documents of which registration is compulsory.—(l)The following documents shall be registered, if the property towhich they relate is situate in a district in which, and if they haveDbeen executed on or after the date on which, Act No. XVI of1864, or the Indian Registration Act, 1866, or the IndianRegistration Act, 1871, or the Indian Registration Act, 1877, orthis Act came or comes into force, namely:—

(a) instruments of gift of immovable property; E

(b) other non-testamentary instruments which purport oroperate 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 onehundred rupees and upwards, to or in immovableFproperty;

(c) non-testamentary instruments which acknowledge thereceipt or payment of any consideration on account ofthe creation, declaration, assignment, limitation orextinction of any such right, title or interest; and G

(d) leases of immovable property from year to year, or forany term exceeding one year, or reserving a yearly rent; (e) non-testamentary instruments transferring or assigningany decree or order of a Court or any award when suchdecree or order or award purports or operates to create, H

declare, assign, limit or extinguish, whether in presentor in future, any right, title or interest, whether vested orcontingent, of the value of one hundred rupees andupwards, to or in immovable property:

Provided that the State Government may, by order published inthe Official Gazette, exempt from the operation of this sub-sectionany lease executed in any district, or part of a district, the termsgranted by which do not exceed five years and the annual rentsreserved by which do not exceed fifty rupees.

(1A) The documents containing contracts to transfer forconsideration, any immovable property for the purpose of section53A of the Transfer of Property Act, 1882 (4 of 1882) shall beregistered if they have been executed on or after thecommencement of the Registration and Other Related laws(Amendment) Act, 2001 and if such documents are not registeredon or after such commencement, then, they shall have no effectfor the purposes of the said section 53A.

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

(i) any composition deed; or

(ii) …………(iii)…………(iv) …………(v) …………

(vi) any decree or order of a Court except a decree or orderexpressed to be made on a compromise and comprisingimmovable property other than that which is the subject-matter of the suit or proceeding]; or

…………

…

…

…

10. Sub-section (2) of Section 17 provides that nothing in clause(b) and (c) of sub-section (1) applies to item No.(i) and (xii) enumeratedtherein. We in the present case have to consider as to whether the decreedated 09.01.1995 is covered by sub-section(2) (vi) or not. Both the FirstAppellate Court and the High Court have proceeded on the premise that A

B

C

D

E

F

G

H

Asince the decree dated 09.01.1995 first time created right in favour ofthe defendant, it required registration, on the ratio of a judgment of thisCourt in Bhoop Singh Vs. Ram Singh Major and Others, (1995) 5SCC 709. In Bhoop Singh (supra), this Court laid down following inparagraphs 16, 17 and 18:-B“16. We have to view the reach of clause (vi), which is anexception to sub-section (1), bearing all the aforesaid in mind. Wewould think that the exception engrafted is meant to cover thatdecree or order of a court, including a decree or order expressedto be made on a compromise, which declares the pre-existingright and does not by itself create new right, title or interest inCpraesenti 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 decreeor order.

17. It would, therefore, be the duty of the court to examine inDeach case whether the parties have pre-existing right to theimmovable property, or whether under the order or decree of thecourt one party having right, title or interest therein agreed orsuffered to extinguish the same and created right, title or interestin praesenti in immovable property of the value of Rs 100 orEupwards in favour of other party for the first time, either bycompromise or pretended consent. If latter be the position, thedocument is compulsorily registrable.

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

F

(1) Compromise decree if bona fide, in the sense that thecompromise is not a device to obviate payment of stampduty and frustrate the law relating to registration, wouldnot require registration. In a converse situation, it wouldrequire registration.

G

(2) If the compromise decree were to create for the firsttime right, title or interest in immovable property of thevalue of Rs 100 or upwards in favour of any party to thesuit the decree or order would require registration.

(3) If the decree were not to attract any of the clauses ofHsub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court’s cases, it isapparent that the decree would not require registration.

A

(4) If the decree were not to embody the terms ofcompromise, as was the position in Lahore case, benefitfrom the terms of compromise cannot be derived, evenif a suit were to be disposed of because of theBcompromise 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 theamendment of this clause by Act 21 of 1929, which hasits origin in the aforesaid decision of the Privy Council,according to which the original clause would have beenattracted, even if it were to encompass property notlitigated.

C

11. Learned counsel for the respondent has placed reliance onparagraph 18(2) to support his submission that since for the first timeright, title and interest in the suit property being created in favour of thedefendants, it required registration. Respondent’s counsel further submitsthat defendant in the statement before the Court has admitted that therespondents-defendants for the first time obtained right, title and interestin the suit property by virtue of decree dated 09.01.1995. The present isa case where by decree dated 09.01.1995 only suit property was madepart of the decree. Suit No. 556 was filed with the pleading that Willdated 02.09.1986 as well as Family Settlement dated 15.06.1994, whichare specifically pleaded in paragraphs 2 and 3 of the plaint are to thefollowing effect:- D

E

F

“2. That the defendant has executed a valid and legal Will dated02.09.1986 in favour of the plaintiffs with his free will and consentwhile he was in a fit disposing mind, which was attested andregistered by the Sub-Registrar.

G

3. That the defendant considering it proper has effected a familysettlement on 15.06.1994 vide which the property in suit was allottedto the plaintiffs in equal shares and the defendant has relinquishedall his right, title and interest whatsoever in the said property infavour of the plaintiff in the said family settlement.”

H

12. In the suit, Bhajan Singh was only defendant, who filed hiswritten statement on 03.12.1994, allegations in paragraphs 2 and 3 ofthe plaint were admitted by the defendant in his statement in paragraphs2 and 3, which is to the following effect:- A

“2. Para No. 2 of the plaint is admitted to be correct.B3. Para No. 3 of the plaint is admitted to be correct.”

13. In the written statement, the defendant Bhajan Singh prayedthat suit of the plaintiffs be decreed as prayed. The pleading in the suitand in the written statement clearly leads to the conclusion that suit wasfiled on the basis of pre-existing right in favour of plaintiffs, which wasCbasis of the suit. Pre-existing right of the plaintiffs was admitted by thedefendant and decree was passed therein.

14. Thus, the submission of the plaintiffs-respondents that suitwas 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 theDabove pleadings, we are of the view that very basis of the applicabilityof the judgment of Bhoop Singh (supra)is knocked out and is notattracted in the present case. This Court in a recent judgment in CivilAppeal No.800 of 2020 – Mohammade Yusuf & Ors. Vs. Rajkumar& Ors. decided on 05.02.2020 had occasion to consider Section 17 asEwell as judgment of Bhoop Singh (supra). While elaborating Section17, this Court laid down following in paragraph 6:- “6. A compromise decree passed by a Court would ordinarily becovered by Section 17 (1) (b) but subsection (2) of Section 17provides for an exception for any decree or order of a Courtexcept a decree or order expressed to be made on a compromiseand comprising immovable property other than that which is thesubject-matter of the suit or proceeding. Thus, by virtue of sub-section(2)(vi) of Section 17 any decree or order of a Court doesnot require registration. In sub-clause(vi) of sub-section (2), onecategory is excepted from sub-clause(vi), i.e., a decree or orderexpressed to be made on a compromise and comprising immovableproperty other than that which is the subject-matter of the suit orproceeding. Thus, by conjointly reading Section 17 (1) (b) andSection 17 (2) (vi), it is clear that a compromise decree comprisingimmovable property other than which is the subject matter of thesuit or proceeding requires registration, although any decree or F

G

H

order of a Court is exempted from registration by virtue of Section17 (2) (vi). A copy of the decree passed in Suit No.250-A of 1984has been brought on record as Annexure P-2, which indicatesthat decree dated 04.10.1985 was passed by the Court for theproperty, which was subject matter of the suit. Thus, theexclusionary clause in Section 17 (2) (vi) is not applicable and thecompromise decree dated 04.10.1985 was not required to beregistered on plain 8 reading of Section 17 (2)(vi)………………………….”

15. In the above case, this Court further relied on earlier judgmentof this Court in Som Dev and Others Vs. Rati Ram and Another,(2006) 10 SCC 788 in paragraph 13 and laid down following:- “13. This Court in Som Dev and Others Vs. Rati Ram andAnother, (2006) 10 SCC 788 while explaining Section 17(2)(vi)and Section 17(1)(b) and (c) held that all decree and orders of theCourt including compromise decree subject to the exception asreferred that the properties that are outside the subject matter ofthe suit do not require registration. In paragraph 18, this Court laiddown following:- “18. ……………But with respect, it must be pointed out thata decree or order of a court does not require registration if it isnot based on a compromise on the ground that clauses (b) and(c) of Section 17 of the Registration Act are attracted. Even adecree on a compromise does not require registration if it doesnot take in property that is not the subject-matter of thesuit…………………….”

16. In the above case, the earlier decree, which was sought to beignored on the ground that it was not registered related only with the suitproperty. This Court held that the said decree did not require registration.Following reasons were given in paragraph 14:- “14. In facts of the present case, the decree dated 04.10.1985was with regard to property, which was subject matter of the suit,hence not covered by exclusionary clause of Section 17 (2) (vi)and present case is covered by the main exception crafted inSection 17 (2) (vi), i.e., “any decree or order of a Court”. Whenregistration of an instrument as required by Section 17 (1) (b) isspecifically excluded by Section 17 (2) (vi) by providing that A

B

C

D

E

F

G

H

Anothing in clause (b) and (c) of sub-section (1) applies to anydecree or order of the Court, we are of the view that thecompromise decree dated 04.10.1985 did not require registrationand learned Civil Judge as well as the High Court erred in holdingotherwise. We, thus, set aside the order of the Civil Judge dated07.01.2015 as well as the judgment of the High Court datedB13.02.2017. The compromise decree dated 04.10.1985 is directedto be exhibited by the trial court. The appeal is allowedaccordingly.”

17. Reverting back to the facts of the present case, it is clear thatthe Suit No. 556 of 21.09.1994 filed by the appellants against BhajanCSingh relates to the suit property described in plaint and decree waspassed only with regard to suit property A to D. The decree dated09.01.1995 was, thus, expressly covered by expression “any decree ororder of a Court”. When legislature has specifically excluded applicabilityof clause (b) and (C) with regard to any decree or order of a Court,Dapplicability of Section 17 (1) (b) cannot be imported in Section 17 (2)(v) by any indirect method. We, thus, are of the considered opinion thatdecree and order dated 09.01.1995 did not require registration and werefully covered by Section 17 (2) (vi), which contains exclusion fromregistration as required in Section 17(1). High Court as well as FirstAppellate Court erred in coming to the conclusion that decree datedE19.01.1995 required registration and due to not registered is null andvoid.

18. Trial Court’s view that decree dated 19.01.1995 being bindingon Bhajan Singh, the plaintiffs, who are the daughters of Bhajan Singhcannot avoid the decree. The submission of the learned counsel for theFrespondent that decree dated 09.01.1995 was obtained by fraud alsoneeds to be considered.

19. The submission of the learned counsel for the respondent isthat since in the suit, which was filed by the defendant, they describedthe defendant as uncle of the plaintiffs, who were looking after andGserving the defendant, which statement having been found not to beproved, it was fraud played on the defendant and the Court.

20. We need to revisit the facts and sequence of events in thecase to examine as to whether any fraud was played on the Court orBhajan Singh in obtaining the decree dated 09.01.1995. Bhajan SinghH

had executed a registered Will dated 02.09.1986, which was a registeredWill and pleaded in paragraph 2 of the plaint. In paragraph 3 of theplaint, it was also pleaded that pursuant to a Family Settlement dated15.06.1994 by which Bhajan Singh decided to allot plaintiffs in equalshare and relinquished all his rights in the suit property, which pleadingswere admitted by Bhajan Singh in his statement. The decree was passedon 09.01.1995 on the basis of which mutation was sanctioned on03.03.1995. Bhajan Singh was admittedly alive till 24.04.1998 and in hislifetime, he never objected the decree or mutation in favour of thedefendants. It has been accepted by the Courts below that both BhajanSingh and Gurmail Kaur were divorced and which divorce was recordedin writing on 15.09.1973 as proved before the Courts below. GurmailKaur after 15.09.1973 started living with Maghar Singh, brother of BhajanSingh in Village Jalowal and thereafter never returned to Bhajan Singh.Gurmail Kaur also filed a suit for maintenance against Bhajan Singh,which was dismissed for non-prosecution. The plaintiffs, i.e., AngrezKaur and Paramjit Kaur, after divorce went with their mother and livedwith Maghar Singh and never returned to Bhajan Singh. In her statement,PW1 has admitted that she never came to see her father. The Courtshave found that Bhajan Singh lived with the defendants after the divorce,who were taking care of Bhajan Singh. The execution of registered Willby Bhajan Singh on 02.09.1986 in favour of the defendants and furtherhis admission that all the claim of the defendants in Suit No. 556 arecorrect and accepting that he has relinquished his rights in favour of theplaintiffs, Gurcharan Singh, Gurnam Singh and Kulwant Singh clearlydisprove any ground of fraud either on the Court or on Bhajan Singh.The divorce between Bhajan Singh and Gurmail Kaur took place on15.09.1973 and thereafter for 25 years, Bhajan Singh lived away fromhis wife and daughters and it was the defendants, who were taking careof Bhajan Singh. Admitting the claim of plaintiffs/appellants in the suitfiled against the defendant Bhajan Singh for declaration cannot be termedas any fraud played on Bhajan Singh or the Court. Sequence of eventsclearly indicate that Bhajan Singh of his own volition wanted to give theentire property to the defendants due to the circumstances of the case,in which Bhajan Singh was placed. It is due to this reason that BhajanSingh in his Will dated 02.09.1986 stated that he has no wife or children.We, thus, do not find any substance in the submission of the learnedcounsel for the respondents that any fraud was played in obtaining decreedated 09.01.1995 by the defendants. The decree dated 09.01.1995 cannot A

B

C

D

E

F

G

H

Abe held to be suffering from any fraud or coercion as contended by thelearned counsel for the respondents.

21. We having held that decree dated 09.01.1995 was a validdecree, the decision of the trial court dismissing the suit for declarationthat decree dated 09.01.1995 was null and void, has to be upheld. InBview of our above conclusion, we do not find it necessary to considervarious submissions raised by the learned counsel for the parties regardingthe validity of the registered Will dated 02.09.1986.

22. In view of the foregoing discussions, we set aside the judgmentof the High Court as well as First Appellate court and restore the decreeof trial court. The appeal is allowed accordingly.

C

Devika Gujral

Appeal allowed

D

E

F

G

H