Delhi High Court
Gaj. Singh Yadav (Lt. Col.) vs Satish Chander Yadav & Ors. on 17 September, 1999
Equivalent citations: 1999VIAD(DELHI)69, 82(1999)DLT1, 1999(51)DRJ240
Author: S.K. Mahajan
Bench: S.K. Mahajan
ORDER S.K. Mahajan, J.
1. This order will dispose of the application of defendants 14 and 16 under Order 23 Rule 3 read with Section 151 of the Code of Civil Procedure. By this application the applicants/defendants 14 and 16 seek to redetermine the share of the applicants in the property in suit.
2. The brief facts resulting in the filing of the application may be summarised as under :
That one Shri Shiv Sahai expired intestate and was survived by his three sons namely Surat Singh, Naval Singh and Narain Singh. Each one of them had 1/3rd share in the property. Narain Singh also expired on 18th December, 1962 intestate and is survived by his four daughters. Defendants 14 and 16 are two of the daughters of the deceased Narain Singh. On the death of Narain Singh each of the daughters claimed to have inherited 1/12th undivided share in the property. Lt. Col. Gaj. Singh Yadav (Retd) one of the legal heirs of Surat Singh filed this suit for partition of the ancestral properties listed in the plaint and for appointment of a Local Commissioner to suggest the mode of partition and to pass a final decree after such report of the Local Commissioner was received. The applicants and other daughters of Narain Singh appointed Wing Comdr. M.P. Yadav as their Attorney to contest this suit and to do all things, to settle and compound matters, disputes and actions and to take all reasonable steps that may be necessary with regard to the conduct of the cases pertaining to the properties situated at Delhi and Kosli, to withdraw or compromise the pending cases and to submit to arbitration any difference or dispute that may arise touching or in any way relating to the property.
3. On April 4,1989 when the matter came up for hearing before the court parties informed the court that they have settled their disputes regarding their shares and the statement of the parties was accordingly recorded by the court. On behalf of the applicants their Attorney made a statement before the court that out of the free will and instructions from defendants 13 to 16 (which included the applicants) he was instructed to make the statement that out of the share to which the said defendants were entitled, 1/60th share may be given to the plaintiff Lt. Col. Gaj. Singh Yadav (Retd.). The Court accordingly on the same date granted a preliminary decree declaring that the parties to the suit were entitled to the shares mentioned in that order. Shares of the applicants and the other two daughters of Narain Singh was declared as 285/3600.
4. Thereafter the parties made efforts to have the matter settled amongst themselves but when no settlement could be arrived, the Court by order dated May 6, 1993 appointed Justice D.R. Khanna (Retd.) as the Commissioner to suggest the mode of partition of the suit properties except the agricultural land mentioned at Sl. No. 2(a) of the Schedule B of the preliminary decree. The Commissioner it appears had heard the matter on different dates and held 23 sittings and filed his report before the Court. Some of the parties filed objections to the report which are yet to be decided. In the meantime, in or about February 1997 the applicants filed the application as mentioned above for modification of the preliminary decree passed by this Court in 1989. This application was later on amended pursuant to an order passed by this Court on August 4, 1998.
5. The grounds on which the preliminary decree dared 19th April, 1989 is sought to be reopened are : (1) that under Order 23 Rule 3 no decree could be passed without there being a written application signed by the parties before the Court; (2) that the Attorney was not authorised to make any statement giving up the share of the applicants to any other person; (3) that the preliminary decree has been passed on the basis of fraudulent statement of the Attorney and (4) the decree is void for want of registration inasmuch as a share in the immoveable property could not be relinquished in favour of the plaintiff without a registered document. It is further stated in the application that on their having come to know of the said M.P. Yadav having relinquished 1/60th share each of the applicants they had cancelled the Power of Attorney and informed the court about the same.
6. During the coures of arguments Mr. Seth, learned counsel for the applicants did not press his plea of the decree being void on the ground that no application under Order 23 Rule 3 CPC was filed by the parties. This plea was not pressed by him in view of the judgment reported as Rachakonda Venkat Rao & Others Vs. Late R. Satya Bai & Others .
7. Mr. Seth in support of his contention that the Attorney could not relinquish any share in the property without a registered document has relied upon the judgment . Bhoop Singh Vs. Ram Singh Major & Others, and Sumintabai Ramakrishna Jadav Vs. Rakhmabai Ramkrishna Jadhav & Others, .
8. In my opinion, the aforesaid judgments are not applicable to the facts of the present case inasmuch as they apply only in a case where a person to whom the property is transferred had no existing right in the property, which is not denied by the applicants, enlargement of his share by relinquishment or gift by the other defendants, in my opinion, will not require registration. It is only where the right in the property is created for the first time by a particular document that the document requires registration. In this case the plaintiff already had a share in the property and it is not that for the first time right was created in his favour by the applicants by relinquishing their 1/60th share each in his favour.
9. In Gurdev Kaur & Another Vs. Mehar Singh & Others, it was held that a consent decree does not require registration even if it created title in respect of immovable property of the value of Rs. 100/- or more provided the same was subject matter of the suit.
10. In P. K. Nangia Vs. Land & Development Officer & Another, it was held that where a compromise decree was passed in respect of property which was subject matter of the suit, the same does not come within the exceptions mentioned in clause (vi) of Section 17(2) of Registration Act and did not require registration. It was held in this case as under:
"Documents of which registration is compulsory are given in clauses (a) to (e) of sub-section (1) of Section 17 of the Registration Act. The decree in question effects the partition of the immovable property and, therefore, it falls under Section 17(1)(b) . However, by virtue of the provisions contained in Section 17, clause (b) of sub-section (1) of Section 17 does not 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 which is the subject matter of the suit or proceedings". The decree in question is made on a compromise. However, it does not comprise immovable property other than that which was subject matter of not come within the exception mentioned in clause (vi) of sub-section (2) of Section 17. In our view, the decree in question does not require registration. Respondent No.1 was not justified in refusing mutation on this ground."
11. In Pappu Redier (dead) & Others Vs. Amaravathi Ammal & Others, it was held that a consent decree comprising of immovable property not the subject matter of the suit or proceedings requires registration but if the consent decree is in respect of a property which is subject matter of the suit the same is exempted from registration.
12. In view of the above, in my opinion, the compromise decree dated 19th April, 1989 is not liable to be set aside on the ground that the same has not been registered as the property which has been partitioned by a compro-mise decree is subject matter of suit.
13. The last contention of Mr. Seth, learned counsel appearing on behalf of the applicants is that the Attorney was firstly not authorised and secondly the compromise decree has been passed by collusion and fraud. No details have been given of the fraud alleged to have been played by the Attorney upon the applicants.
14. Wing Comdr. M.P. Yadav was given a Power of Attorney dated 16th October, 1984 duly registered before the Sub Registrar on 18th October, 1984. By this Power of Attorney the Attorney besides appearing and pleading for the applicants in any court in India was also authorised to settle and compound matters, disputes and action and to take all legal steps that may be deemed necessary by him for prosecution with regard to the conduct of the cases pertaining to the properties situate at Delhi and Kosli. He was also authorised to withdraw or compromise the cases and to do all other acts that may be deemed necessary of advisable for the proper conduct and prosecution of the said cases relating to the ancestral property. It is also stated in the Power of Attorney that all acts, deeds and things done by the Attorney shall stand ratified by the applicants. It was by virtue of this Power of Attorney that the Attorney on April 4, 1989 made a statement that out of the share to which the applicants may be entitled 1/60th share may be given to the plaintiff. Attorney considered the same to be in the best interest of the applicant as in his view all the disputes between the parties were going to be settled and by such giving of 1/60th share in the property it was possible to divide the property in two shares. No grievance was made by the applicants to this compromise having been arrived at by the Attorney on their behalf till the application for setting aside the compromise decree was filed by them. The applicants also appeared before the Local Commissioner and did not make any protest about any part of their share having been given to the plaintiff by their Attorney. The applicants had also filed objections being IA No. 2145/97 to the report dated 10th February, 1994 and 4th April, 1994 of the commission suggesting the mode of partition. In these objections it is specifically stated by the Objectors that they were each given 285/3600 share in the properties by the court. Though it is stated that the Power of Attorney in favour of Wing Comdr. M.P. Yadav was cancelled by them and they had appointed another Attorney Dr. R.S. Yadav, however, it is now hers stated in these objections that the earlier Attorney was not authorised to give up their 1/60th share in the property in favour of the plaintiff. All that is stated in the objections is that "Before the Commissioner it was not disputes that the objectors (applicants) may be included in the block of 40% allotted to the plaintiffs and defendants 13 to 16 but an application was moved before the Local Commissioner by defendant No. 16, the present objector, and the oral request was made before the learned Local Commissioner by Objector 14 to the effect that their portions should be separately demarcated in the block of 40% as mentioned above". It is also stated in the objections that the Local Commissioner ignored the request of the applicants and did not demarcate the separate portions in his report as well as in the plan annexed with the report. The applicants filed another application being IA 2382/95 informing the Court that they have cancelled the Power of Attorney executed in favour of Wing Comdr. M.P. Yadav. In this application also though it is mentioned that the applicants also though it is mentioned that the applicants have cancelled the Power of Attorney given in favour of Wing Comdr. M.P. Yadav no grievance was made about the said Attorney having given away 1/60th share of the said applicants in favour of the plaintiff. On the other hand, it is categorically stated in the application that a preliminary decree was passed by the Court on 19th April, 1989 and the share of the applicants was assessed at 285/3600 each in the said preliminary decree. Even in the Deeds of Cancellation which are annexed alongwith this application it is not stated that the earlier Power of Attorney given in favour of Wing Comdr. M.P. Yadav was cancelled due to his having given up 1/60th share of the applicants in favour of the plaintiff.
15. In my view, therefore, this clearly shows that it is only an after thought on the part of the applicants now to allege that the Attorney was not authorised by them to make the statement on April 4,1989 giving up their 1/60th share in the property. The applicants having participated before the Local Commissioner and having filed objections to his report, in my view, it will not be open for them now to allege that the Attorney has played fraud upon them or has given away 1/60th share of the applicants in favour of the plaintiff without their consent. The suit is pending for the last about 24 years. The compromise was arrived at between the parties more than 10 years back. Pursuant to the preliminary decree passed by the Court in 1989 the Local Commissioner had also held several hearings and has suggested the mode of partition of the properties. His report is also pending in this Court for consideration for the last more than five years. At some stage a finality has to be attached to the orders of the court and it should not remain open for the parties to challenge the orders only because at a later stage it appears to them that the said order was not to their liking. No details of fraud have bean given in the application for setting aside the compromise decree. In my considered view, compromise or a consent decree can be set aside only if obtained by fraud, misrepresentation or coercion. Unless a ground is established on which compromise or a contract can be avoided the courts will have no jurisdiction to re-open or go behind the decree.
16. For the foregoing reasons, in my opinion, no case has been made out for re-determining the shares of the applicants nor there is any case for setting aside that part of the preliminary decree by which the applicants have been given 285/3600 share each in the property. The application is accordingly dismissed. In the facts and circumstances of the case, however, I leave the parties to bear their own costs.