Punjab-Haryana High Court
(O&M) Atma Singh And Others vs Jaswant Singh And Others on 3 December, 2025
Author: Amarinder Singh Grewal
Bench: Amarinder Singh Grewal
RSA-2497-199
1994 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
107 RSA
RSA-2497-1994 (O&M)
Reserved on:27.11.2025
Date of Decision:03
Decision:03.12.2025
Uploaded on:04
on:04.12.2025
Atma Singh(since diseased) through LRs and others ... Appellants
Versus
Jaswant Singh(since
Singh(since diseased) through Lrs and others ...Respondents
CORAM : HON'BLE MR. JUSTICE AMARINDER SINGH GREWAL
Present: Mr. Puneet Jindal, Senior Advocate with
Ms. Malvi Aggarwal,
Aggarwal Advocate
Mr.Sanjeev Sharma, Advocate
for the appellants.
Mr. Vijay Kumar Jindal,
Jinda Senior Advocate with
Mr. Rajesh Gupta,
Gupta Advocate
Mr. Vijayveer Singh, Advocate
for respondents No. 1 to 3.
***
AMARINDER SINGH GREWAL, J.
1. The plaintiffs are the appellants before this Court challenging the passed by the 1st Appellate Court vide judgment and decree dated 06.06.1994 passed which the appeal preferred by respondents No.1 to 3/ 3/defendants No.1 .1 to 3 against the judgment and decree dated 08.10.1987 passed by the learned trial Court decreeing the suit for declaration and consequential relief fo forr joint possession filed by the appellants-plaintiffs, appellants has been allowed and their suit has been dismissed.
2. For the sake of convenience, the parties are referred to in terms of their status before the trial court.
3. Succinctly, the facts of the case are that Hari Singh, son of Nathu, was the owner of the suit land as described in the head head-note note of the plaint. Hari Singh 1 of 21 ::: Downloaded on - 05-12-2025 04:55:30 ::: RSA-2497-199 1994 (O&M) -2- died on 20.06.1981, unmarried and issueless.. As per the pedigree furnished in the plaint, Chandu was the common ancestor, and the bra branches nches devolved through his sons Inder Singh, Sham Singh, Nathu and Pola Singh, with defendant Nos.4 to 8 being the nearest collaterals of the deceased. The plaintiffs claimed that they had been serving the deceased during his lifetime and that Hari Singh eexecuted xecuted his last Will dated 30.09.1980 in their favour, thereby constituting them as testamentary heirs. It is the grievance of the plaintiffs that defendants No.1 to 3, by practicing fraud and impersonation, procured a judgment and decree in Civil Suit No No.27 .27 of 22.01.1981, decided on 13.02.1981 by the Court of Sub Judge Ist Class, Rajpura, in their favour. The plaintiffs asserted that the said decree did not confer any right, title or interest upon defendant Nos.1 to 3 as it was collusive, unregistered and obtained without the deceased ever appearing in court to admit their claim. The plaintiffs further contended that the said decree is null and void and cannot take away their rights as testamentary heirs and those of the nearest collaterals in the suit property.
perty. Hence, they were compelled to institute the present suit.
4. Upon notice of the suit, defendants appeared and filed written statement taking objection that deceased Hari Singh, who died unmarried and issueless, had been residing with defendant Nos Nos.1 .1 to 3 and was being looked after by them, and therefore, therefore the plaintiffs had no locus to assert any claim over the suit land. Defendant Nos.4 to 8 did not contest the suit and were accordingly proceeded against ex parte, whereas defendant Nos.1 to 3 enter entered ed appearance and contested the matter by filing a joint written statement. The contesting defendants pleaded that in recognition of the services rendered by them, deceased Hari Singh voluntarily appeared before the Civil Court in the suit instituted by defendant fendant Nos.1 to 3 and admitted their claim, whereupon the Civil Court passed a consent 2 of 21 ::: Downloaded on - 05-12-2025 04:55:31 ::: RSA-2497-199 1994 (O&M) -3- decree dated 13.02.1981 in their favour. They further claimed that, apart from the consent decree, Hari Singh had executed a Will dated 14.06.1981 in their favour, on the basis of which they asserted themselves to be the owners in possession of the suit property. They denied the execution of any Will dated 30.09.1980 in favour of the plaintiffs and alleged that the same was a forged and fabricated document. In addition to the merits of the case, defendant Nos.1 to 3 also raised legal objections including estoppel, non-maintainability of the suit and other preliminary objections.
5. On the basis of pleadings, learned trial Court had framed as many as seven issues including including relief. On appreciation of oral as well as documentary evidence produced before it, the learned trial Court decreed the suit of the appellants-plaintiff plaintiffs; whereas the appeal preferred by the respondents respondents-defendants defendants Nos.1 to 3 was allowed by the learned 1st Appellate Court. Hence, the appellants-
appellants plaintiffs filed the present regular second appeal.
6. Mr. Puneet Jindal, learned Senior Counsel assisted by Ms. Malvi Aggarwal and Mr. Sanjeev Sharma, Advocates contended that the learned 1st Appellate Court has gravely erred in reversing the well well-reasoned reasoned judgment of the learned trial Court. The consent decree dated 13.02.1981 Ex.P3 was obtained by the respondents-defendants respondents defendants No.1 to 3 by playing fraud up upon on Hari Singh and in fact, someone one else was impersonated as Hari Singh before the Court in order to get a collusive decree based on admissions. Rather, Hari Singh was residing with appellants-plaintiffs plaintiffs and being happy and satisfied with the services rendered by them, he also suffered a Will dated 30.09.1980 Ex.P2 in their favour, which has been duly proved in terms of Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act. Moreover, the Will dated 14.06.1981 3 of 21 ::: Downloaded on - 05-12-2025 04:55:31 ::: RSA-2497-199 1994 (O&M) -4- propounded by respondents-defendants respondents defendants No.1 to 3 was surrounded by suspicious circumstances ircumstances and therefore, was rightly discarded by the learned trial Court. It was argued that once Hari Singh had already suffered a consent decree (Ex.
(Ex.P3) P3) in favour of respondents-defendants respondents No. 1 to 3, he no longer had any property left to bequeath through rough the Will dated 14.06.1981 (Ex (Ex.D1).
D1). Furthermore, Hari Singh died on 20.06.1981 and the Will Ex.D1 was executed on 14.06.1981 i.e. six days before death of Hari Singh, which itself shows that Hari Singh was not in a sound disposing mind to execute the Will Ex.D1. It was also contended that when a consent decree was already there in favour of respondents/ respondents/defendants No.1 to 3, what kind of insecurity led them to get executed a Will also in their favour. In support of aforesaid contentions, he relied upon the judgment passed by the Hon'ble Supreme Court in Meena Pradhan and others Vs. Kamla Pradhan and another (2023) 9 SCC 734;
734 Muddasani Venkata Narsaiah (D) through LRs v.
Muddasani Sarojana 2016(3) RCR (Civil) 236; and Gurdial Singh (Dead) Through LRs v. Jagir Jagir Kaur (Dead) and another 2025 SCC OnLine SC 1466.
7. It was further argued that suit for obtaining the consent decree was filed on 22.01.1981, written statement was filed on 05.02.1981 and the decree was passed on 13.02.1981 on the basis of admission admissionss in the written statement i.e. within a week after filing of the written statement. The learned Senior Counsel referred to specific provisions under Orders V, X, and XV of the Civil Procedure Code to argue that the first hearing of a suit cannot occur bef before ore the date scheduled for the preliminary examination of the parties and the settlement of issues. According to this view, the hearing of the case begins only after the written statement has been filed and the issues have been framed. Meaning thereby thereby, the words 'first date of hearing' do not mean the day for the return of the summons or the returnable date, 4 of 21 ::: Downloaded on - 05-12-2025 04:55:31 ::: RSA-2497-199 1994 (O&M) -5- but the day on which the Court applies its mind to the case, which ordinarily would be at the time when either the issues are determined or evidence is taken. He tried to make out a case that the written statement was filed on 05.02.1981 and on the very same date, statement of Hari Singh was also recorded and the alleged consent decree was passed after eight days from the date of recording of the statement, stateme which is totally against the statutory scheme of the Code of Civil Procedure. In support of his contention, he relied upon the judgments passed by the Hon'ble Supreme Court in Kanwar Singh Saini Vs. High Court of Delhi (2012) 2 SCC 307 and Badami (deceased) (deceased) by her LR Vs. Bhali (2012) 11 SCC 574.
8. The next argument raised by learned Senior Counsel for the appellants was that the appellants-plaintiffs appellants plaintiffs never parted with possession of the suit land and in this regard, relied upon certified copies of rev revenue enue record Ex.P5 to Ex.P16. Even if it is assumed that the consent decree Ex.P3 was passed, the same is inoperative and non est in the eyes of law, as the title, right and interest were created in praesenti in favour of the respondents-defendants respondents defendants No. No.1 to 3 in the absence of any pre-existing existing right, thus, decree required compulsory registration under Section 17 of the Registration Act, 1908 (hereinafter referred to as the Act of 1908) 1908).. In support of aforesaid contention, reliance was placed upon the judgment passed by Coordinate Benches of this Court in Gurmail Singh Vs. Mohinder Singh and others 2025 NCPHHC 129813 (Doc ID#2784490) and Shanti Devi (deceased) through Lrs and another Vs. Iqbal Singh (deceased) through LRs and others 2015 (1) RCR (Civil) 185.
9. Lastly, it was argued that the learned 1st Appellate Court erred in discarding the report Ex.PW5/A of document expert PW5, who in his report stated that thumb impression of Hari Singh appended on written statement dated 5 of 21 ::: Downloaded on - 05-12-2025 04:55:31 ::: RSA-2497-199 1994 (O&M) -6- 05.02.1981 and on the Will Ex.D1 did not tally with standard thumb impression of Hari Singh and thus, failure to consider expert report and evidence constituted the said finding of the learned 1st Appellate Court perverse and flawed. Reliance in this regard, was placed upon the judgment passed passed by a Coordinate Bench of this Court in Sadhu Singh (since deceased) through his LR Vs. Jit Singh (since deceased) through his LR 2024 NCPHHC 111094 (Doc Id #2642808). Reliance nce was also placed on the judgment passed by a Coordinate Bench of this Court in Sher Singh Vs. Mahabir Singh 2002 (3) RCR (Civil) 32 to contend that the consent decree Ex.P3 was also faulty on the ground that affected parties were not impleaded and thus, the suit was bad for non-joinder non joinder of necessary parties.
10. Per contra, Mr. Vijay Kumar Jindal, learned Senior Counsel assisted by Mr. Rajesh Gupta and Mr. Vijayveer Singh, Advocates contended that case of the appellants-plaintiffs plaintiffs was weekend by their own witness PW1 Krishan Gopal Advocate, who identified and proved his signatur signatures es on certified copy of plaint Ex.P1 and in the cross-examination, cross examination, he specifically stated that statement of Hari Singh was recorded in his presence. Thus, the allegation of fraud and impersonation falls flat, much less, fraud is to be pleaded and proved be beyond yond reasonable doubt like a criminal case, which the appellants appellants-plaintiffs plaintiffs have failed to do. Furthermore, the consent decree Ex.P3 was passed on the basis of admission made in the written statement and on the basis of statement of Hari Singh recorded in the Court, therefore, there was no question of fraud and impersonation. If at all there was any impersonation, what prevented the appellants appellants-plaintiffs plaintiffs from making a criminall complaint against respondents-defendants respondents defendants No.1 to 3. In support of his contention, he relied upon the judgment passed by a Coordinate Bench of this 6 of 21 ::: Downloaded on - 05-12-2025 04:55:31 ::: RSA-2497-199 1994 (O&M) -7- Court in Abhimanu and another Vs. Hoshiyar Singh and others 2014 (5) RCR (Civil) 809.
11. It was further argued that the document expert PW5 was examined in rebuttal of issue of Will Ex.D1 with respect to issue No.3, however, the said s evidence pertained to issue No.4, onus of which was on the appellants appellants-plaintiffs, plaintiffs, thus, the said evidence ought not have been looked into by the learned trial Court with respect to issue No.3, in the absence of of any right to lead evidence in rebuttal being reserved by the appellants-plaintiffs, appellants plaintiffs, as they did not close their evidence in affirmative.. In support of his contention, he relied upon the judgment passed by a Coordinate Bench of this Court in Beer Kaur thr through ough her GPA Smt. Sukhwinder Kaur Vs. Kuldeep Singh and another 2025 (1) RCR (Civil 609. Furthermore, it was contended that the learned 1st Appellate Court has rightly held that P P-2 2 could not be made standard impression as the same was already a disputed iissue.
ssue.
Moreover, PW--66 Sham Singh, Advocate in his cross cross-examination examination admitted that Hari Singh and Niranjan Singh had not signed on reply to the partition application and therefore, S-1 S 1 on vakalatnama could not be said to be a standard one for attestation.
12. It was further argued that a consent decree binds the parties and operates as estoppel between the parties in subsequent litigation regarding that matter. In support of his contention, he relied upon the judgment passed by a Coordinate Bench of this Court C in Smt. Har Kaur Vs. Smt. Dhappan (died) and others 1986 PLJ 94. He also relied upon the judgment passed by a Division Bench of this Court in Gurdev Kaur and another Vs. Mehar Singh and others 1989 (2) RCR (Rent) 635 to contend that compromise decree creating title in respect of immovable property does not require registration. Lastly, it was also argued that 7 of 21 ::: Downloaded on - 05-12-2025 04:55:31 ::: RSA-2497-199 1994 (O&M) -8- earlier Naranjan Singh father of appellants-plaintiffs appellants plaintiffs had filed a suit challenging the consent decree dated 13.02.1981 wherein he did not make mention of any Will in favour of appellants-plaintiffs, appellants plaintiffs, rather he withdrawn the said suit. Therefore, the present suit filed by the appellants-plaintiffs, appellants plaintiffs, challenging the consent decree dated 13.02.1981 was not maintainable.
13. I have heard learned senior senior counsels for the parties and have perused the paper book with their able assistance as well as the case laws cited.
14. At the outset, this Court would deem it appropriate to deal with the issue, whether the consent decree dated 13.02.1981 Ex.P3 was obtained by fraud and impersonation?
15. The he argument raised by learned Senior Counsel appearing for the plaintiffs that the learned 1st Appellate Court has gravely erred in appellants-plaintiffs discarding rding the testimony of document expert PW PW-5 and his report Ex.PW5/A W5/A has no merit,, for the reason that PW-1 PW Krishan Gopal, Advocate had deposed that the original plaint in the summoned file of Civil Suit No.27 dated 22.01.1981 decided on 13.02.1981 titled as Jaswant Singh and others Vs. Hari Singh, bore his signature and nd in his cross-examination, cross examination, he specifically stated that statement of Hari Singh was recorded in his presence. Thus, in view of statement of PW PW-1 1 Krishan Gopal, who had filed the suit, which culminated into consent decree dated 13.02.1981, the allegation of impersonation and fraud is unsustainable. As regards the report of document expert PW-5, PW 5, this Court is of the opinion that any handwriting/thumb-
handwriting/thumb impression report submitted by an expert is not the sole method of proving a document's genuineness. Moreover, Moreover, such expert opinion is only of persuasive value and cannot be treated as conclusive. He compared the disputed thumb impression on the written statement dated 05.02.1981 and the vakalatnama dated 8 of 21 ::: Downloaded on - 05-12-2025 04:55:31 ::: RSA-2497-199 1994 (O&M) -9- 05.02.1981 as well as thumb impression mark in the summo summoned ned file of Suit No.27 of 22.01.1981 decided on 13.02.1981 and thumb impression on the Will dated 14.06.1981 Ex.D1 (marked as Q1 to Q5) with the thumb impressions on the vakalatnama dated 16.08.1977 in File No.19 dated 18.05.1977 decided on 23.05.1977 and on the Will dated 30.09.1980 (marked S1 and S2) to come to the conclusion that thumb impressions marked as Q1 to Q5 did not tally with the specimen thumb impressions S1 and S2. First of all, there is no evidence that even specimen thumb impression S1 was genuine or not, as PW-6 6 Sh. Sham Singh, Advocate had admitted in his cross-examination cross amination that Hari Singh and Na Naranjan ranjan Singh had not signed on reply to the partition proceedings. He did not know Hari Singh personally and he simply recorded the identity as it is, as it was provided to him. Thus, even the thumb impression of Hari Singh in the partition proceedings was also disputed. Moreover, thumb impression on the Will dated 30.09.1980 marked as S2 was already in dispute. Furthermore, fraud is to be proved beyond reasonable doubt like a criminal case, which has not been proved by the appellants-
appellants plaintiffs.
16. However, this Court finds merit in the argument raised by learned Senior Counsel for the appellants that the consent decree dated 13.02.1981 is inoperative rative and ineffective as it was not registered under Section 17 of the Act of 1908. Section 17 of the Act of 1908 deals with the documents of which registration is compulsory and the same reads as follows:
"17. Documents of which registration is compulso (1) The compulsory.--(1) 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 Ind Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:
namely:--
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(a) instruments of gift of immovable property;
(b) other non-testamentary non testamentary instruments which purport or operate to create, declare, assign, limitt 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 non testamentary instruments which acknowledge the receipt or pay 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 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 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, upward 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 sub-section ion 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.
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act,2001 (48 of 2001) and and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section53A.
section (2) Nothing in clauses (b) and (c) of sub sub-section (1) applies to--
(i) any composition deed; or
(ii) any instrument instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or exting extinguishing uishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) any document other than the document documents specified in sub-section section (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and 10 of 21 ::: Downloaded on - 05-12-2025 04:55:31 ::: RSA-2497-199 1994 (O&M) -11- upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(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 which is the subject-matter atter of the suit or proceeding or proceeding;
(vii) any grant of immovable property by Government Government; or
(viii) any instrument of partition made by a Revenue Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under unde the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or (xa) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any suchh Treasurer of any property; or
(xi) any endorsement on a mortgage mortgage-deed deed acknowledging the payment of the whole or any part of the mortgage mortgage-money, money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Rev Revenue-Officer.
[Explanation. A document purporting or operating to effect a [Explanation.--A contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money. (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered."
17. It is evident from the above that Section 17(1) of the Act of 1908 specifies the documents for which registration is compulsory. Section 17(2), however, provides certain exceptions. The exemption applicable to a court decree or order is found in Section 17(2)(vi), subject to a qualificati qualification.
on. Under this provision, any decree or order of a court, except one that is based on a compromise and deals with immovable property other than the property that is the subject-
subject matter atter of the suit or proceeding does not require compulsory registration. Section Sect 17(2)(vi) thus distinguishes between property that forms the subject subject-matter matter of the suit and property that does not. Notably, the provision allowing parties to 11 of 21 ::: Downloaded on - 05-12-2025 04:55:31 ::: RSA-2497-199 1994 (O&M) -12- incorporate in a compromise decree property that is not part of the suit was introduced only on 01.02.1977. Before that date, a compromise decree could pertain only to the property or subject-matter subject matter involved in the suit itself. Therefore, if a compromise decree concerns immovable property other than that for which relief was sought, such property does not qualify for the exemption and must be registered. This exclusion was introduced through Act 21 of 1929 by substituting the phrase "and any award." To claim exemption from the requirement of registering documents transferring immovable property val valued above Rs. 100/-,, the compromise decree must relate solely to the property that is the subject subject-matter matter of the suit.
18. Consent decree based on admissions is granted under Order XII Rule 6 of the Code of Civil Procedure. As per provisions of Order XII Rule 6 CPC, where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination tion of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. Therefore, in the present case, consent decree dated 13.02.1981 was passed by the competent Court on the basis of admissions.
admissions. Hari Singh died unmarried and issueless and thus, the suit property which came to his share after partition of ancestral property, was his separate property. In that eventuality, alienation of his share by Hari Singh by way of alleged consent decree/Will decree/Will tantamounts to create title, right and interest for the first time in prasaenti in favour of respondents respondents-defendants defendants No.1 to 3 and thus, required compulsory registration under Section 17 of the Act of 1908. The Hon'ble Supreme Court in the judgment judgment passed in Bhoop Singh Vs. Ram Singh 12 of 21 ::: Downloaded on - 05-12-2025 04:55:32 ::: RSA-2497-199 1994 (O&M) -13- Major and others (1995) 5 SCC 709 has held that the he decree having purported to create right or title in the plaintiff for the first time that is not being a declaration of pre-existing existing right, did require registration.
19. The Hon'ble Supreme upreme Court in the judgment passed in Mukesh v.
State of Madhya Pradesh 2025 (1) RCR (Civil) 384 has held as under:-
10.1. The judgments in Mohd Yusuf case (2020) 10 SCC 264 (supra) and Bhoop Singh (supra) were followed by this court in the following subsequent decisions:
(i) Khushi Ram v. Nawal Singh (2021) 16 SCC 279 279:
"30. This Court in Rajkumar case Mohd. Yusuf v. Rajkumar, (2020) 10 SCC 264 : (2021) 1 SCC (Civ) 45 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 subject-matter of Section 17(2)(vi) (2)(vi) and decree did not require registration. The issue in the present case is squarely squarely covered by the above judgment. We, thus, conclude that in view of the fact that the consent decree dated 19 19-8-1991 relates to the subject-matter matter of the suit, hence it was not required to be registered under Section 17(2)(vi) (2)(vi) and was covered by exclusionary clause. Thus, we, answer Question 1 that the consent decree dated 19-8-1991 19 1991 was not registrable and the courts below have rightly held that the decree did not require registration."
(ii) Ripudaman Singh h v. Tikka Maheshwar Chand (2021) 7 SCC 446
16. The judgments of this Court in Bhoop Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] and K. Raghunandan [K. Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102] were found to be inconsistent in an order reported re in Phool Patti v. Ram Singh [Phool Patti v. Ram Singh, (2009) 13 SCC 22] and the matter was thus referred to a larger Bench. The larger Bench in the judgment reported as Phool Patti v. Ram Singh [Phool Patti v. Ram Singh, (2015) 3 SCC 465: (2015) 2 SCC (Civ) 312] did not find inconsistencies between the two judgments.
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17. Bhoop Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] was a case dealing with both the situations, decree between the parties where the decree-holder decree holder does not have any pre pre-existing ng right in the property and also the situation where decree decree-holder has a pre-existing existing right. It was the second situation where the decree decree-holder holder has a pre-
pre existing right in the property, it was found that decree does not require registration. In K. Raghun Raghunandan andan case [K. Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102] 102],, the dispute was not amongst the family members but between neighbours regarding right over passage. Obviously, none of them had any pre pre-existing existing right over the immovable property in question.
quest
18. In view of enunciation of law in Bhoop Singh case [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709], 709] , we find that the judgment [Tikka Tikka Maheshwar Chand v. Ripudaman Singh, 2016 SCC OnLine HP 3808] and decree of the Highh Court holding that the decree requires requ 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. Consequently, the appeal is allowed and the suit is decreed."
Thus, it could be discernible that in order to fall under the exception of Section 17(2)(vi) (2)(vi) of the Act, 1908, the following conditions must be satisfied:
(i) There There must be a compromise decree as per the terms of the compromise without any collusion;
(ii) The compromise decree must pertain to the subject property in the suit; and
(iii) There must be a pre-existing pre existing right over the subject property, and the compromise compromise decree should not create a right afresh.
afresh."
20. The judgment relied upon by learned Senior Counsel appearing for respondents-defendants defendants No.1 to 3 in Gurdev K Kaur's case (supra) is not applicable 14 of 21 ::: Downloaded on - 05-12-2025 04:55:32 ::: RSA-2497-199 1994 (O&M) -15- to the facts of the present case, as in Gurdev Kaur (supra) was a case of compromise decree passed under Order XXIII Rule 3 CPC, in which title of the suit land was allegedly transferred by way of gift deed about 10/12 years ago;
whereas present case is a case of consent decree obtained under Order XII Rule 6 CPC i.e. .e. decree based on admissions. In view the above, this Court is of the considered opinion that the consent decree dated 13.02.1981 13.02.1981, Ex.P3 had created rights in favour of respondents-defendants respondents defendants No.1 to 3 for the first time in praesenti and thus, required compulsory registration under Section 17 of the Act of 1908 and in the absence of same, it is rendered inoperative and ineffective.
21. Now the question arose qua genuineness of Will dated 30.09.1980 Ex.P2 and Will dated 14.06.1981 Ex.D1 allegedly executed by Hari Singh,, the former being propounded by the appellants-plaintiff appellants plaintiffss and the latter by respondents-
respondents defendants No.1 to 3. Section 63 of the Indian Succession Act (for short the Act of 1925),, which talks about execution of unprivileged Wills, is reproduced ced herein under:-
"63. Execution of unprivileged Wills. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged or a mariner at sea, shall execute his Will according to the following rules:
rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment 15 of 21 ::: Downloaded on - 05-12-2025 04:55:32 ::: RSA-2497-199 1994 (O&M) -16-
of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the prese presence nce of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
necessary."
22. A bare perusal of Section 63 of the Act of 1925 reveals that the Will must be signed by the testator or by someone in his presence and by his direction.
The Will must be attested by at least two witnesses and each witness must have either seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator. However, it is not necessary for both witnesses to be present at the same time. Further, Section 68 of the Indian Evidence Act, 1872 makes it clear that at least one attesting witness has to be examined to prove the execution of the Will.
23. In the judgment passed by Hon'ble Supreme Court in Meena Pradhan's case (supra), which is referred to by learned counsel for the appellants-
appellants plaintiffs,, following principles were inferred, which are required to be pproved:-
"i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
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(b) It is mandatory to get it attested by two or more wit witnesses, nesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testa testator, tor, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with; vii. Where one attesting attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence; viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier. ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by those suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain rtain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
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x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in th thee absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
explanation."
24. The factors required to be consider considered where here the case set up is that the Will was surrounded by suspicious circumstances are; (i) awareness of the testator as to the content as well as the consequences, (ii) nature and effect of the dispositions in the Will; (iii) sound, certain and disposing st state ate of mind of the testator; (iv) memory of the testator at the time of execut execution and (v) testator executed the Will while acting on his own free will. The onus of proving the Will W is on the propounder and if there are suspicious circumstances pointed out by the opposing party, the onus would be on the propounder to dispel them to the satisfaction action of the Court before the Will Will could be accepted as genuine.
25. In Pentakota Satyanarayana & others v. Pentakota Seetharatnam & 67 the Hon'ble others (2005) 8 SCC 67, ble Supreme Court has explained how the requirement of Section 68 of the Indian Evidence Act, 1872 is to be met by the propounder of the Will, as under:
"22. ..... Section 68 of the Evidence Act, 1872 deals with proof of execution of document required by law to be attested. This section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting witness alive and subject to process of the court and capable of giving evidence, he must be called to prove execution. Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act.
xxxx xxxx xxxx
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It is clear from the definition that the attesting witness mu must st state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of tthe he attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word "execution" in Section 68 includes attestation as required by law."
26. As regards regards the Will dated 30.09.1980 Ex.P2, PW-2 2 Hazura Singh attesting witness of the said Will, has categorically stated that the Will was executed by the testator Hari Singh and in the presence of witnesses, the aforesaid Will was read over and explained to Hari Hari Singh Singh. After fter admitting its contents to be true, testator-Hari Hari Singh appended his thumb impression on the same in the presence of attesting witnesses. He further stated that the attesting witnesses and the executants thumb marked/signed the Will in the ppresence resence of each other. Thus, the Will dated 30.09.1980 Ex.P2 was duly proved in terms of Section 63(c) of the Act of 1925 and Section 68 of the Indian Evidence Act, 1872. On the contrary, the Will dated 14.06.1981 (Ex.D1) (Ex.D1) was executed by Hari Singh merely six days before his death, which in itself casts doubt on whether he was of sound disposing mind at the relevant time. This concern is reinforced by the testimony of DW DW-1 1 Amrik Singh, who stated that Hari Singh had to be physically carried to the village because he was so weak that he could not walk. Moreover, the subsequent Will dated 14.06.1981 (Ex.D1) contains no reference to the earlier Will dated 30.09.1980 (Ex.P2). Once respondents-defendants defendants No. No.1 1 to 3 had already obtained a consent nt decree dated 13.02.1981
13. (Ex.P3) P3) in their favour from Hari Singh, it is unclear what would have prompted Hari Singh to execute the Will dated 19 of 21 ::: Downloaded on - 05-12-2025 04:55:32 ::: RSA-2497-199 1994 (O&M) -20- 14.06.1981 (Ex.D1).
(Ex.D1). Having already divested himself of all his properties, properties execution of Will Ex.D1 by Hari Singh just six days befo before his death, casts a serious shadow of suspicion over the the genuineness of the Will (Ex.
(Ex.D1). Once nce the property had been transferred by him through a consent decree, he no longer remained its owner and therefore, therefore could not dispose of it or distribute it thr through ough the Will Ex.D1. Furthermore, none of the attesting witnesses was examined in the manner required under Section 68 of the Indian Evidence Act. Neither witness stated in his testimony that he saw the executor sign nor or affix his mark to the document, or that he himself signed or thumb thumb-marked marked the instrument in the presence of the executant. Consequently, the requirements of Section 68 of the Indian Evidence were not satisfied by either of the attesting witnesses, DW2 or DW3. Since the testator cannot be available available at the time the document's validity is examined to testify about the circumstances in which the Will was executed, the law imposes strict requirements for proving it, in order to eliminate any possibility of manipulation. Thus, if there are circumstances stances giving rise to doubt, then it becomes duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation, explanation, which respondents respondents-defendants defendants No.1 to 3 failed to do.
27. Learned Senior Counsel for respondents respondents-defendants efendants No.1 to 3 vehemently contended that father of the appellants appellants-plaintiffs Naranjan ranjan Singh had filed a suit challenging the consent decree dated 13.02.1981 but withdrew the same and thus, a subsequent suit filed by the appellants appellants-plaintiffs was not maintainable.
aintainable.
However, this Court is not inclined to accept the contention of learned senior counsel. A perusal of the order dated 29.11.1982 passed by the learned Sub Judge 1st Class, Rajpura reveals that the said suit was dismissed as withdrawn on the 20 of 21 ::: Downloaded on - 05-12-2025 04:55:32 ::: RSA-2497-199 1994 (O&M) -21- request equest of the plaintiff-Naranjan plaintiff ranjan Singh as he did not want to pursue the same, having been arrayed as a party to other suit filed on the same cause of action.
Furthermore, the Will Ex.P2 was executed by Hari Singh in favour of appellants-
appellants plaintiffs herein and thus, they had a locus standi to challenge the consent decree dated 13.02.1981 Ex.P3 and the suit was maintainable.
28. In view of the judgments passed by the Hon'ble Supreme Court in Pankajakshi (Dead) through Legal Representatives and others Vs. Cha Chandrika ndrika and others (2016) 6 SCC 157, Randhir Kaur Vs. Prithvi Pal Singh and others (2019) 17 SCC 71 and Gurbachan Singh (dead) through LRs Vs. Gurcharan 875, questions of Singh (dead) through LRs and others (2023) SCC Online SC 875 law are not required to be framed framed in second appeal before the Punjab and Haryana High Court whose jurisdiction is circumscribed by provisions of Section 41 of the Punjab Courts Act, 1918.
29. As an upshot of above, the judgment and decree dated 06.06.1994 rendered by the learned 1st Appellate Court, being vitiated by infirmity and irregularity, stand set aside. Resultantly, the judgment and decree dated 08.10.1987 passed by the learned trial Court is upheld. T The instant regular second appeal is allowed. Decree sheet be prepared acc accordingly.
30. Miscellaneous application(s) pending pending,, if any, also stand disposed of.
(AMARINDER AMARINDER SINGH GREWAL) GREWAL JUDGE December 03,, 2025 Pankaj* Whether speaking/reasoned : Yes Whether reportable : Yes 21 of 21 ::: Downloaded on - 05-12-2025 04:55:32 :::