Kerala High Court
Gopakumar vs Sunitha Gopakumar on 5 March, 2020
Bench: K.Harilal, C.S.Dias
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941
Mat.Appeal.No.208 OF 2020
AGAINST THE ORDER DATED 06.01.2020 IN E.P.NO.23/2019 IN OP
575/2014 OF FAMILY COURT, MAVELIKKARA
APPELLANT/JUDGMENT DEBTOR/RESPONDENT:
GOPAKUMAR, AGED 46 YEARS
S/O. CHELLAN PILLAI, KELAKOMBIL ABHIJITH BHAVANAM,
CHERAVALLI MURI, KAYAMKULAM VILLAGE,
KARTHIKAPPALLY TALUK, ALAPPUZHA 690 502.
BY ADV. SRI.P.B.AJOY
RESPONDENT/DECREE HOLDER/PETITIONER:
SUNITHA GOPAKUMAR, AGED 39 YEARS,
W/O. GOPAKUMAR, KELAKOMBIL ABHIJITH BHAVANAM,
CHERAVALLI MURI, KAYAMKULAM VILLAGE,
KARTHIKAPPALLY TALUK, ALAPPUZHA 690 502.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No.208 OF 2020
2
CR
JUDGMENT
Harilal, J The appellant and the respondent are the judgment debtor and decree holder respectively in E.P.No.23/2019 in O.P.No. 575/2014 on the files of the Family Court, Mavelikara. They are husband and wife respectively. This appeal is filed challenging the order passed by the Family court rejecting the challenge against maintainability of the execution petition, holding that the compromise decree passed in O.P.No.575/2014 is an enforceable one.
2. The respondent filed O.P.No.575/2014 seeking a decree for return of money and gold ornaments from the appellant herein. The matter in dispute Mat.Appeal.No.208 OF 2020 3 had been settled by way of compromise agreement, which culminated into a compromise decree accordingly. The compromise agreement consists of five clauses. As per the first clause, both parties agreed to maintain their marital relationship. As per the second clause, the appellant agreed to assign 12 cents of his property to his children. As per the third and fourth clauses, the respondent herein agreed to withdraw her claim under the Domestic Violence Act and the claim for return of money and gold ornaments. As per the fifth clause, the respondent will not obstruct the appellant's right to meet the children.
3. Thereafter the respondent filed E.P.No.23/2019 to enforce the execution of the assignment deed Mat.Appeal.No.208 OF 2020 4 in favour of the children as promised by the appellant under clause (ii). The appellant entered appearance and filed an objection contending as follows:
i. The compromise decree is not an enforceable one.
ii. The compromise decree is not registered under Section 17(1)(b) of the Registration Act. iii. The respondent failed to perform her part in the compromise agreement and thereby she violated the terms of the decree. iv. The children are not parties to the suit and the compromise decree is valid only insofar as the compromise relates to the parties to the suit.
4. After considering the rival pleas, the family court rejected all the aforesaid contentions on a Mat.Appeal.No.208 OF 2020 5 finding that the compromise decree is an enforceable one, notwithstanding the absence of its registration under Section 17(1)(b) of the Registration Act and non-performance of the promises from the part of the respondent/decree holder. The legality and correctness of the aforesaid findings are challenged in this appeal.
5. Heard Sri.P.B.Ajoy, the learned counsel for the appellant.
6. Sri.P.B.Ajoy, the learned counsel for the appellant advanced arguments exhaustively contending that the execution petition is not an enforceable one, as the non-registration under Section 17(1)(b) of the Registration Act is fatal. According to him, since the compromise decree is comprising of immovable property, other than Mat.Appeal.No.208 OF 2020 6 the subject matter of the suit, it will not fall under Clause (vi) of Section 17(2) of the Act and thereby the compromise decree became compulsorily registrable.
7. The questions that arises for consideration in view of the above arguments is as follows:
i.What kind of decree requires compulsory registration under Section 17(1)(b) of the Registration Act.
ii.Whether the obligation imposed on a party to the compromise decree to assign an immovable property, other than subject matter of the suit requires compulsory registration under Section 17(1)(b) of the Registration Act.
8. Going by the terms of compromise imposing obligation on the appellant, we find that what is Mat.Appeal.No.208 OF 2020 7 agreed to be done by clause (ii) is a promise to assign his immovable property to his children and no immovable property has been transferred by the compromise decree itself.
9. In the above context, let us examine the provisions, which would make the registration of a compromise decree compulsory. On a reading of Section 17(1)(b) of the Registration Act, we find that the non-testamentary instruments, which purport or operate 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 Rs.100/- and upwards, to or in immovable property requires compulsory registration. But, clause (vi) to Section 17(2) of the Act provides an exception Mat.Appeal.No.208 OF 2020 8 that nothing in clauses (b) and (c) of Section 17(1) of the Act applies to any decree or order of a court except a decree or order expressed to be made on a compromise, and comprising of immovable property other than that which is the subject matter of the suit or proceedings. So it can be concluded that any decree, except the decree made on a compromise, comprising of immovable property, other than the subject matter of the suit, does not require compulsory registration under Section 17(1)(b) of the Act. In other words, the decree made on a compromise and comprising of immovable property, other than subject matter of the suit, requires compulsory registration under Section 17(1)(b) r/w clause (vi) of the Act.
Mat.Appeal.No.208 OF 2020 9
10. In the instant case, the compromise decree was passed in a suit filed by the respondent against the appellant seeking a decree for return of money and gold ornaments. So the immovable property to be assigned by the compromise decree is not the subject matter of the suit. If that be so, in the instant case, the compromise decree will not get protection under clause (vi) of Section 17(2) of the Act. In the above context, let us examine the terms of decree in detail. As we have already observed above, what is imposed on the appellant, under clause (ii) of the compromise decree, is an obligation only to execute an assignment deed in the name of the children and no property was assigned to his children by the compromise Mat.Appeal.No.208 OF 2020 10 decree itself. Put it differently, the compromise decree by itself does not create any new right, title or interest in the immovable property, which is not the subject matter of the suit. It is to be remembered that a non-testamentary instrument, which purport or operate to assign any right, title or interest having value of Rs.100/- or upwards in immovable property, alone requires compulsory registration. So, in the instant case, the terms of compromise decree do not make the compromise decree a compulsorily registrable one.
11. Secondly, the learned counsel contends that unless and until the respondent performs his part in the compromise agreement, the compromise decree is not an enforceable one. In Mat.Appeal.No.208 OF 2020 11 the instant case, the respondent did not perform the promise made to the appellant and thereby the compromise decree became unenforceable one.
12. On an examination of clause (i) to (v) imposing obligation on the appellant and the respondent, we find that the promise made by the parties are not reciprocal and the promises are independent and self working. The performance of one obligation is not a condition precedent for the performance of the other. The order of performance is not fixed in the agreement. No promise is depending upon the performance of another promise made by the other party.
13. Then the question to be considered and Mat.Appeal.No.208 OF 2020 12 answered is where the terms of promises in a compromise agreement, which culminated into a compromise decree are not reciprocal; but independent and self working and no time limit is fixed for the performance, can one party refuse to perform his obligation to the other, unless and until the other party performs his obligations to him.
14. According to Section 51 of the Indian Contract Act, when a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise, unless the promisee is ready and willing to perform his reciprocal promise.
15. But, we are of the opinion that this legal proposition cannot be applied where the Mat.Appeal.No.208 OF 2020 13 promises are not reciprocal; but independent and self working. In a compromise agreement which culminated into a decree, if the terms of promises are not reciprocal but independent and self working and no time limit is fixed for promises, both parties to the compromise decree will have dual status as decree holder and judgment debtor against each other. So, each of them have right to seek execution/enforcement of the obligations made by the other, by filing execution petition against the other, who failed to perform his promise.
16. Therefore, we conclude that where the terms of promise in a compromise agreement, which culminated into a compromise decree are not reciprocal, but independent and self working Mat.Appeal.No.208 OF 2020 14 and no time limit is fixed for their respective performances, one party cannot refuse to perform his obligation/promise to the other, unless and until the other performs his promise/obligation to him.
17. In the above view, we find that the appellant cannot challenge the maintainability of the execution petition or refuse to perform his obligations to the respondent on the ground that the respondent has not performed her obligation/promise to him. Therefore we reject the argument raised by the learned counsel appearing for the appellant challenging the maintainability of the execution petition. Hence, the Family Court, Mavelikkara is justified in its finding that the execution petition is an Mat.Appeal.No.208 OF 2020 15 enforceable one. We do not find any illegality or impropriety in the findings, whereby the family court rejected the contention raised by the appellant herein. This appeal fails and is dismissed accordingly.
Sd/-
K.HARILAL, JUDGE sd/-
C.S.DIAS, JUDGE AMV/11/05/2020 Mat.Appeal.No.208 OF 2020 16 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE JUDGMENT DECREE AND COMPROMISE PETITION IN OP NO.
575/2014 ON THE FILES OF THE FAMILY COURT, MAVELIKARA.
ANNEXURE A2 TRUE COPY OF THE PETITION IN O.P. NO.
344/2019 ON THE FILES OF THE FAMILY COURT, MAVELIKARA.
RESPONDENTS EXHIBITS : NIL
TRUE COPY P.A.TO JUDGE