06 Jul 2121

If the decree holder has a pre-existing right in the property does not require compulsory registration under Section 17 (2) (vi) of the Indian Registration Act 1908 - Supreme Court of India

Case : Ripudaman Singh v. Tikka Maheshwar Chand Civil Appeal No. 2336 of 2021 (Arising Out of SLP (Civil) No. 4035 of 2017)

Court : Supreme Court of India

Bench : Justice Sanjay Kishan Kaul & Justice Hemant Gupta

Decided on : 06 Jul 2121

Relevant Statutes 

Section 17 (2) (v) or (vi) of the Registration Act, 1908

Order XXIII Rule 3 of the Code of Civil Procedure, 1908

Brief Facts and Procedural History

1. The parties are the two sons of the late Vijendra Singh. The Appellant here filed a suit for possession in 1978 against the will date 4.12.1958 for the half share in the land as described in the plaint, which was executed in the favour of the defendant Further, a decree was passed on the basis of compromise which arrived between the parties during the pendency of the suit.

2. Afterwards, the plaintiff seeks mutation of the ½ share of the land which was further allowed by the Naib Tehsildar on 10.02.1983. But the appeal against the mutation was disposed of and directed to decide a fresh mutation. Later, the Appellant filed an appeal before the divisional Commissioner which was dismissed on the ground that it is against the provisions of The Registration Act 1908 due to the absence of the Registration.

3. The Appellant filed another suit for declaration and challenged the order passed by the Commissioner which was dismissed by learned Sub-judge, Ist Class, Hamirpur on 20.11.2002. After this, The Appellant filed an appeal which was allowed by the District Judge, Hamirpur. The said order was challenged in the second appeal before the High Court. The Honourable High Court set aside the order passed by the first appellate court and dismissed it on the ground that though the subject matter of compromise was not the subject matter of the suit, but the decree requires registration under section 17 (2) (vi)  of The Registration act 1908. Plaintiff challenged the order passed by the High Court on 28.10.2006.

The Issue of the Case

Whether the compromise decree in respect of land which is part of a settlement between the family members not the subject matter of suit requires compulsory registration under Section 17 (2) (vi) of the Registration Act, 1908?

The Observations of the Court

1. The Honourable Supreme Court observed that the judgment passed by the Honourable High court was erroneous in nature. It is not a new right that is being created but it was a pre-existing right in the property when the parties entered into a compromise before the Civil Court.

2. The Honourable Supreme Court observed that a compromise can be passed if it is not the same as in the subject matter of the suit under Order XXIII Rule 3 of Code of Civil Procedure 1908. The compromise which is entered is valid as the respondent has not disputed such settlement before the forum.

3. In one of the Judgments i.e. Ravinder Kaur Grewal and Others v. Manjit Kaur and Others, 2020 (9) SCC 706, It was held that family settlement seeks enforcement in the suit for declaration. Such family settlement was declared in documents under 17(2) (v) of the Registration Act, 1908. The Honourable Supreme Court observed in another Judgment i.e. Bhoop Singh vs. Ram Singh Major and Others, 1995 (5) SCC 709, it was held that where the decree-holder has a pre-existing right in the property does not require registration. The Honourable Supreme Court held that there was no right that was being created for the first time, thus it does not require any compulsory registration. 

The Decision Held by the Court

The Appeal was allowed which was filed by the plaintiff. The suit for declaration, challenging the order passed in mutation proceedings, was dismissed.

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