Orissa High Court
Karunakar Rout Alias Thatei vs Golak Behari Biswal And Anr. on 4 March, 1994
Equivalent citations: AIR1995ORI110, AIR 1995 ORISSA 110, (1995) 1 CIVILCOURTC 102, (1995) 215 ITR 694, (1994) 3 CIVLJ 621
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT K.C. Jagadea Roy, J.
1. This Letters Patent Appeal has been preferred by the plaintiff in Title Suit No. 67/91-1 of the Court of the Subordinate Judge, Athgarh challenging the order of the Hon'ble Single Judge of this Court dated 6-5-1997 allowing the First Appeal No. 120 of 1975 preferred by the defendants.
2. The suit of the present plaintiff-appellant was for a declaration that the compromise decree-passed in Title Suit No. 8/68 field at the instance of defendant No. 3 of the Title Suit No. 67/74-1 earlier did not effect his eight annas' interest in the suit property and his interest was npt affected at all by the registered sale deed dated 9-4-1974 executed by the defendant no. 3 (in T.S. No. 67/74-1) in favour of Defendants 1 and 2 who were the sister's sons of Defendant No. 3 and also for a declaration that the plaintiff was entitled to exercise his right of pre-emption in respect of the share of Defendant No. 3 in the suit property and defendant Nos. 1 and 2 are entitled to separate possession of the sepeci-fied portion of the suit property and for a further prayer for directing the defendant Nos. 1 and 2 not to come into separate possession until the property was partitioned. According to the plaintiff, Defendant No. 3 is the adopted sone of Digambar who died in the year 1967 and as such, the names of plaintiff and defendant No. 3 who was the adoptive mother, were recorded in revenue records by way of mutation. As already stated, Defendant Nos. I and 2 were he sisters son of defendant No. 3. The suit properly which is an area of Ac. 3.59 dec, of land stood recorded in the name of Digambar. On his death his widow, the defendant No. 3 as well as his adopted son plaintiff inherited the same. Since dispute arose between the adoptive son and the adoptive mother, the adoptive mother, defendant No. 3 had filed Title Suit No. 8/68 in the court of the Munsif, Athgarh disputing the adoption of the plaintiff. The suit, however, was compromised on 30-11-1973 in which defendant No. 3, the adoptive mother acknowledged the plaintiff to be the adopted son of Digamber and in view of such acknowledgment the plaintiff gave up his eight annas share in the suit property in favour of defendant No. 3, the adaptive mother except four annas interest in the agricultural lands which plaintiff had kept to himself. The suit was decreed in terms of the compromise which conteined a clause that the plaintiff would get the same registered within seven days; failing which it was open to defendant No. 3 to get it registered after obtaining copies thereof but admittedly no registration had been done. Subsequently the adoptive mother, defendant No. 3 executed a sale deed infavour of defendant Nos. 1 and 2. Hence the suit was field by the plaintiff which was numbered as T.S. No. 67/ 74 in the Court of the Subordinate Judge, Athgarh. In the said sale deed Defendant No. 2 sold the entire homestead land as well as some other plots and some other lands in favour of Defendant Nos. 1 and 2.
3. In the suit, defendant No. 1 to 3 filed their written statement taking the plea that the plaintiff has no manner of right, title and interest in the suit property and is estopped in view of the compromise decree passed in T.S. No. 8/68 and though there was no partition by metes and bounds, there was mutual arrangement between the plaintiff and defendant No. 3. The trial Court came to the finding that the compromise decree, Ext. 1 was ineffective due to the non-registration.
(1) the compromise decree was also a nullity because the property covered under Ext. 1 was more than Rs. 4,000/- which was beyond the pecunery 'jurisdicton of the learned Munsif;
(2) The property covered under Ext. 1 not being the subject matter of T.S. 6/68, registration was compulsory and in the absence of registration, the decree was inoperative and relief could not be claimed on the strength of the said compromise decree.
(3) That the adoption of the plaintiff by Digambar was upheld;
(4) That sale of property by virtue of sale deed dated 2-4-1974 in favour of defendant Nos. 1 and 2 was held to be valid to the extent of the share of defendant No. 3;
(5) Prayer for prescription was also decree. With the above findings the suit was decreed in part on 11-5-1975. Against the said decree passed by the learned Subordinate Judge dated 11-6-1975, Defendant Nos. 1 to 3 filed the First Appeal No. 120 of 1975 in this Court.
The Hon'ble Single Judge who heard the matter, came to the following findings:
(1) It appears more probable that the petition containing term was itself the settlement and not merely a record what had been settled earlier.
(2) There was absolutely no evidence available to show that there was any prior discussion or meeting between the parties and the neghbours where a settlement was reached and was later on reduced to writing.
(3) The agreement, Ext. 1 show that the agreement regarding the properties was itself the consideration for the compromise of the dispute relating to adoption and hence it has to be held that the compromise decree did not require any registration since such properties referred to in agreement would be considered as inseparatable consideration of the compromise and to be regarded as the subject matter of suit for which it does not require any registration in view of the Section 17(2)(vi) of the Indian Registration Act, and (4) that the plaintiff was not entitled to the relief under Section 22 of the Hindu Succession Act.
4. Both of us had gone through the judgment passed by the Hon'ble single Judge who has taken great pains in analysing the point in law raised in this case. It is well settled that the basis need for a family settlement is either to settle the existing or future disputes regarding the property amongst the members of a Family, the consideration being the expection that the settlement will result in establishing and ensuring amity and good will amongst the relations. Because of this consideration where a party may give up his claim in favour of another, the agreement can be a binding one and cannot be impeached unless there is fraud committed in entering into such agreement. We find that Ext. 1 is no doubt, a family arrangement where the plaintiff who was adopted under Oomiokhyam adoption while retaining his interest in the property of his natural father had acquired right with property of his adoptive father and had relinquished his interest in the entire homestead of the deceased adoptive father and while keeping only four annas interest in the other land, had relinquished the balance in favour of the adoptive mother as a consideration for the settlement of dispute between him and her adoptive mother regarding adoption the agreement therefore was a binding one and was not to be disowned by the plaintiff unless there was any allegation of fraud. Admittedly there was no such allegation made in the plaint by the plainitff. It is worth while to note that the compromise was reached only after contesting the suit brought by the adoptive mother, for a declaration that he was not the adopted son. As it appears from the judgment of the Hon'ble single Judge. Learned counsel appearing for the respondents in the said appeal accepted the fact that the parties had undoubtedly antecedent title to the property or at least possibility of such antecedent title and the compromise was reached in the previous suit with a view to settle the dispute so as to achieve peace and amity. The only point that is now canvassed before this court is that even when a family arrangement is a valid one and became a part of the decree, the decree having been unregistered did not create any right, title and interest in respect of the properties under the compromise in favour of defendant No. 3 and became ineffective such a point cannot be sustained in law. Ext. 1, so far it is a compromise decree, is exempted from registration. Since Section 17(2)(vi) exempts a compromise decree does not comprise immovable property other than those which are the subject matter of the suit and the suit had been decreed in terms of the compromise. The learned Subordinate Judge was of the view that the terms of the compromise decree covered properties beyond the subject matter of the suit (Underline is by us made for emphasis), as such was not exempted from registration. In the case of Pappu Reddiar (died) v. Amaravathi Animal reported in AIR 1971 Madras 182, the meaning of the expression "subject of the suit" had received the judicial interpretation. Admittedly that was a case where the decree that was passed covering terms for immoveable property which had not been included in the plaint schedule. The court observed in the said case that even though the properties were not mentioned in the plaint schedule, nevertheless this should be regard as the subject matter of that suit inasmuch as their allotment to one or the other of the plaintiffs in the suit was inseparable from the other provisions of the compromise decree and constituted part of the consideration for the compromise. The court held in the aforesaid case that the expression "the subject matter of the suit" recurring in Section 17(2)(vi) cannot be read as a subject matter of the plaint nor subject matter in dispute in the suit or the proceeding. If the consent decree or order in the suit or proceeding covered the property, although it was not in the plaint or in dispute, such property constituting, as it does, an inseparable part of the consideration for the compromise, may well, in our view, be regarded as the subject-matter of the suit. This is because the decree having been passed on the basis of the compromise cannot stand without the property. That being the position of law in the earlier suit when there was dispute regarding the plaintiffs 'adoption the plaintiff had relinquished his interest in the property in favour of defendant No. 3 fully in respect of the homestead and partially in respect of the other properties as a consideration for the compromise agreement that was arrived at and as such became an inseparable part of the consideration of compromise so that this compromise relating to the property need be treated as the subject matter of that suit. Therefore, the document was not required to be compulsorily registered in view of Section 17(2)(vi) of the Indian Registration Act. When the finding of the Hon'ble Single Judge was to the effect that this compromise decree did not require any registration we find no reason to depart from this view and accept the findings and conclusion of the Hon'ble single Judge of this court on this point. Now the other question that arises is that if the plaintiff was entitled to the right of preferential purchase of the share and property inherited by D.3 because of Section 22 of the Hindu Succession Act. Section 22 deals with preferential right to acquire the property in certain cases. Because of the section, if an interest in any immovable property of an intestate, or in any business carried on by him or. her. Whether, solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. The Hon'ble single Judge has disallowed the right of the plaintiff on the ground that under Ext. 1 the had relinquished all his rights in favour of defendant No. 3 as far as the homestead lands are concerned and also relinquished in respect of his property except four annas share in other agricultural lands. Since in the compromise decree, the plaintiff had already relinquished all his rights in respect of homestead and twelve annas share into other land he inherited from his father in favour of D.3 in respect of those properties plaintiffs right of preferential purchase has lost in respect of these properties in view of Section 22 of Hindu Succession Act, 1956. We hold that the view taken by the Hon'ble single Judge holds good in respect of that property, the plaintiff having surrendered all his interest in favour of defendant No. 3 which was under a valid transfer it has been to the D. 3 to deal with properties as she liked as there was no subsisting interest existed in respect of the said homestead land in favour of the plaintiff after the compromise decree in favour of the plaintiff. But in case of other land, the joint interest of plaintiff and D.3. defendant No. 3 and the plaintiff had not partitioned that other land between themselves which is not disputed. There is no evidence led in the case to show that after the compromise decree they continued in separate possession of the other agricultural property as per the compromise decree. Therefore the plaintiff and the defendant were having been in joint possession of the other agricultural property, plaintiff having only one-fourth in the case, the sale in respect of the other agricultural properties by D. 3 under sale deed dated 2-4-1974 in favour of the defendants Nos. 1 and 2, cannot be declared valid as in a joint family governed by Banaras School of Mitakshara, the transfer of other property by an undivided coparcener is void ab initio and is not even valid to the extent of its share. No evidence has been led to show that the present defendant No. 3 had sold only her interest in the said agricultural property to defendants Nos. I and 2 in which case it could have been valid to the extent of D. 3's share and defendants Nos. 1 and 2 could have filed a petition for partition and to carve out their land from the joint property. The sale of the other properties which are still undivided and jointly held by the plaintiff and defendant No. 3, could not have been transferred in favour of defendants Nos. 1 and 2 before partition and as such, the transfer of other land in respect of that portion of the property under the sale deed dated 2-4-1974 is declared invalid.
The A.H. is accordingly, allowed in part and the judgment and decree of the Hon'ble single Judge as far as the sale deed dated 2-4-1974 related 10 the other land of defendant No. 3 is set aside and the said transfer is declared null and void. The rest of the judgment and decree of the Hon'ble single Judge is confirmed.
The parties are to bear their respective costs of this Letters Patents Appeal.
G.B. Patnaik, J.
5. I agree.