Allahabad High Court
Kripa Shanker Pandey vs Baij Nath Pandey on 29 January, 2010
Author: Krishna Murari
Bench: Krishna Murari
Court No. - 4 Case :- WRIT - C No. - 4081 of 2010 Petitioner :- Kripa Shanker Pandey Respondent :- Baij Nath Pandey Petitioner Counsel :- Vashistha Tiwari,Hemant Kr. Dubey Hon'ble Krishna Murari, J.
Heard learned counsel for the petitioner.
This writ petition has been filed seeking the following main reliefs :
(i) issue a writ, order or direction in the nature of certiorari quashing the compromise decree dated 29.4.2007J passed by the learned Civil Judge (Junior Division), Deoria in Original Suit No. 264 of 2007 (Misc. Case No. 67 of 2007) so far as directing for registration of the deed is concerned.
(ii). issue a writ, order or direction in the nature of mandamus directing the respondent to act on the basis of the compromise decree passed by the court below dated 29.4.2007.
Facts are that suit was filed by the plaintiff-petitioners against defendant-respondent seeking declaration that they were owners of the suit property on the allegation that the property was purchased out of earnings of plaintiff-petitioner no. 1 and out of love and respect the property was purchased in the name of defendant- respondent. It is to be taken note of that plaintiff-petitioner no. 1 is son and plaintiff-petitioner no. 2 is daughter-in-law of defendant- respondent. The suit was decreed on the basis of compromise between the parties with the condition that the decree would become effective only after it is registered under the provisions of the Indian Registration Act, 1908. Aggrieved by the part of the condition directing registration of the decree, the petitioners have approached this Court seeking above quoted reliefs.
It has been urged by the learned counsel for the petitioners that in view of section 17(2) (vi) of the Registration Act since the property in dispute was subject matter of suit/proceedings as such the decree would not require any registration. The argument advanced is totally misconceived. The Hon'ble Apex Court in the case of Bhoop Singh Vs. Ram Singh Major and others AIR 1996 Supreme Court 196 while considering the provisions of Section 17(2) (vi) of the Registration Act in paragraphs 16 and 17 has observed as under :
"16.We have to view the reach of Clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti 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, embeded in the decree or order."
"17. It would, therefore, be the duty of the Court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registerable."
Law being settled on the point that unless there is pre-existing right in the suit property any decree passed on the basis of compromise or consent requires to be compulsorily registered.
Learned counsel for the petitioners has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Som Dev and others Vs. Rati Ram and another [2006 (65) ALR 484] in support of the contention that where subject matter of the suit is same the compromise decree does not require registration. Reliance is totally misplaced in as much as in the case before the Hon'ble Apex Court the question was in respect of registration of a decree which was passed on admission and admission was of pre-existing right set up by the plaintiff. It may be relevant to quote paragraph 5 of the said judgment:
"5. On an advertence of the circumstances leading to that decree, in context of the pleadings in that suit, we are not in a position to agree with counsel for the contesting defendants that the decree was a compromise decree. It was really a decree on admission and the admission was of the pre-existing right set up by the plaintiffs as created by Sheo Ram. The decree by itself did not create any right in immovable property. It only recognised the right set up by the plaintiffs in that suit in respect of the property involved. It is one thing to say that that decree is vitiated by collusion or by fraud or some such vitiating element. But it is quite another thing to say that such a decree could be excluded from consideration on the ground of want of registration."
In view of the settled legal proposition, since there was no pre- existing right of the petitioners in the suit property the trial court rightly directed that decree would become effective only after registration.
In view of above, the writ petition is devoid of merits and accordingly stands dismissed.
Order Date :- 29.1.2010 Dcs