Madras High Court
P.Chidambaram vs Chelliah @ Sandhiveeran ... on 25 January, 2021
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
S.A.(MD)No.622 of 1996
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.(MD)No.622 of 1996
P.Chidambaram ... Appellant/2nd Plaintiff/
1st Respondent
Vs.
1.Chelliah @ Sandhiveeran Chettiar(died)
2.Sankaradoss Gandhi
3.Kasturi
4.Indira
5.Anandavalli ... Respondents /Defendants/
Appellant & Respondents 2 to 5
6. Avudaiammal
7.Chandrabose
8.Gurunathan
9.Mariappan
10.Chandramurugan
11.Chandrasekar
12.Chandralakshmi
13.Chandanamari .. Respondents
1/19
http://www.judis.nic.in
S.A.(MD)No.622 of 1996
[RR6 to 13 are brought on record as LRs
of the deceased R1 vide court order dated
05.01.2021 made in M.P.(MD).Nos.1 to 3
of 20018]
PRAYER: This Second Appeal is filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 18.06.2011 made in A.S.No.5 of
1996 passed by the learned Subordinate Judge, Sivaganga, preferring against the
judgment and decree dated 31.10.1995 made in O.S.No.493 of 1993 passed by the
learned District Munsif, Sathankulam.
For Appellant : Mr.G.Sridharan
For Respondents 6, 8 to 12 : Mr.M.S.Balasubramania Iyer
Senior Counsel
Respondents No.2 : No appearance
Respondents 3 to 5 : Dispensed with
JUDGMENT
Aggrieved over the judgment of the first Appellate Court, reversing the findings of the trial Court, the present second appeal is filed.
2. The parties are referred to as per their rank before the trial Court. 2/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996
3.The brief facts, leading to file this Second Appeal, are as follows:-
It is the case of the plaintiff that the suit property shown as L1, L2, L7, L8 and F1 and G is in possession and enjoyment of the plaintiff and the second defendant. Originally the suit property and the north eastern side property was owned by one Subramania Pillai and he has mortgaged the said properties to one, Paripooranam Chettiar, who is the father of the plaintiffs, in the year 1951 under Ex.A1, dated 09.11.1951. Thereafter, the mortgaged properties were sold to the mortgagee, Paripooranam Chettiar, through sale deed Ex.A2 dated 22.05.1958.
Though the sale deed indicated that the entire mortgaged properties were sold to the plaintiffs' father, Paripooranam Chettiar, however, the suit property was not included in the sale deed due to oversight. Since the dispute arose between them the said Paripooranam Chettiar filed O.S.No.49 of 1963 for declaration. In the above suit, a compromise decree was passed wherein the suit properties was declared in favour of the father of the plaintiffs. Eversince, the date of death of the father of the plaintiffs, his legalheirs had control over the properties and the suit property was in possession of the plaintiff and the second defendant. The alleged sale of the suit property in favour of the first defendant is not correct and O.S.No. 510 of 1970 was also filed against the defendant and his predecessors in title, 3/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 wherein declaration and injunction was granted in favour of the plaintiffs' father.
Hence the suit.
4. The first defendant denying the allegations in the plaint stated that the suit properties viz., L1, L2, L7, L8, F1 and G were originally owned by one Subramania Pillai and he has sold the same to the first defendant on 18.09.1961. Eversince the date of sale, the first defendant is in possession and cultivated the said portion shown as G, F1 and put up a latrine in L2 and has also perfected title by adverse possession. The said Paripooranam Chettiar has never enjoyed the suit property. The sale deed in favour of the plaintiffs' father did not convey the suit property. Earlier suit in O.S.No.510 of 1970 was not barred as res judicata and Paripooranam Chettiar was never in possession of the suit property. Therefore the legal heirs are also not entitled for possession of the suit property. Hence he disputed the plaintiffs' claim.
5. On the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A1 to A9 were marked. On the side of the defendants, the second defendant was examined as and Exs.B1 to B5 were marked.
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6. Based on the above pleadings, the trial Court has framed as many as 11 issues and after considering the entire documents, particularly previous judgments, granted the decree for permanent injunction in favour of the plaintiffs. The first Appellate Court reversed the findings of the trial Court only on the ground that the compromise decree in O.S.No.49 of 1963 was not registered. Aggrieved against the said findings that the plaintiffs did not derive any title, the present second appeal is filed.
7. While admitting the Second Appeal, the following substantial questions of law have been framed:-
a) Whether the first Appellate Court was correct in reversing the judgment and decree of the trial court in the face of the compromise decree in O.S.No.49/63 and O.S.No.510/70 marked as Exs.A3 and A4? and
b) Whether the suit filed by the plaintiff is barred by the principle of res judicata?
8. The learned counsel appearing for the appellant vehemently contended that the first Appellate Court has simply allowed the appeal by dismissing the suit only on the ground that the compromise decree requires registration as the same has not been registered, the plaintiffs are not entitled to the suit properties. It is the 5/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 further contention that originally the property owned by one Subramania Pillai and he has mortgaged the same to the Paripooranam Chettiar, who is the father of the plaintiffs under Ex.A1. Thereafter, he has sold the suit property on 22.05.1958. However, in the above documents due to over sight, the second item (suit property) shown in the mortgage deed was not shown in the schedule of property. However the fact remains that the plaintiffs were in possession of the entire property. Though the mother of the first defendant claims to have purchased the the suit property from the said Subramania Pillai in the year 1963 under Ex.B1 and the suit in O.S.No.49 of 1963 was filed in the year 1963 by the father of the plaintiffs against the mother of the first defendant. In the above suit, the first defendant and his father and mother were party defendants. In the above suit, a compromise decree was passed and the suit property more fully mentioned in the plaint was declared in favour of the father of the plaintiffs. O.S.No.510 of 1970 is also filed and wherein, the first defendant herein has admitted the title of the plaintiffs in respect of the suit property. The above suit is also reached finality and the appeal also dismissed and possession has been confirmed. Hence, it is the contention that the trial Court has analysed the entire evidence whereas the first Appellate Court is non suited the appellant only on the ground that the previous judgments not registered, now the plaintiffs cannot claim any title on the basis of the sale deed of the year 1961(Ex.B1).
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9. Whereas the learned Senior Counsel appearing for the respondents 6, 8 to 12 submitted that since Ex.A2 did not cover the second item of the mortgaged property, title did not pass to the plaintiffs' predecessors. Though the title has been declared under the compromise decree in favour of the plaintiffs in respect of the suit property, the compromise decree was not registered. Therefore, the same cannot be relied upon for any other properties, for which he made reliance upon the judgment of the Hon'ble Apex Court in 1996 (1) MLJ 38, Bhoop Singh vs. Ram Singh Major and others. Therefore, the contention that the compromise decree without registration would not convey the title to the plaintiffs. Therefore, prayed for dismissal of the appeal.
10. In the present case, the identity of the properties is not in dispute and also the fact that the suit property and other properties originally owned by one Subramania Pillai is not disputed by both sides. Similarly, the mortgage deed- Ex.A1, which was registered in favour of the said Paripooranam Chettiar, who is the father of the plaintiffs is also not disputed. On careful perusal of Ex.A2-sale deed reveals that though the mortgaged properties were sold, the second item of the mortgage properties (ie., the suit property) shown in Ex.A1 is not found place 7/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 in Ex.A2-sale deed. The entire recitals of the sale deed indicates that the sale was only in respect of the mortgaged properties shown under Ex.A1 for a total sale consideration of Rs.3000/- and the mortgaged money of Rs.2000/- has adjusted.
11. It is the contention of the defendants that under Ex.B1 dated 18.09.1961 the suit property, ie., second item of Ex.A1-mortgage deed, was sold to the first defendant's mother. Therefore, they have derived title to the properties. It is also relevant to note that based on Ex.A3, a suit in O.S.No.49 of 1963 was filed by the father of the plaintiffs against the defendants and their parents. In Ex.A3 a compromise decree was arrived between the parties and in the above compromise decree, it is recorded as follows:
“...in pursuance of the said compromise arrived at between the parties, the order of decree that the plot marked as L, L1, L2, L3, L4, L5, L7, L8, F1 and G in the Commissioner's first plan attached to this decree belongs to the plaintiffs in absolute rights”.
and the above decree has reached finality has not been put in challenge.
12. From the above compromise decree among the first defendant and his parents, who were arrayed as defendant Nos.1 to 3 and the vendor, Subramania Pillai was also made as fourth defendant and in respect of the suit properties, the 8/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 declaration was given in respect of the plaintiffs' father. It is also relevant to note that Ex.A4, a suit in O.S.No.510 of 1970 has filed, which is also not in dispute. In the above suit, permanent injunction was also granted in favour of the plaintiffs' father. Exs.A4 and A5 was also filed and proved the above fact. The above suit has also reached finality and the appeal filed against the said suit was also dismissed which could be seen from Exs.A6, A8 and A9. The copy of the order and judgment in CMA.No.17/1994 are carefully perused.
13. In O.S.No.510 of 1970, the defendants and their predecessors, in fact, admitted the title of the plaintiffs' father in the written statement and in the above suit, the title of the plaintiffs to the present suit property was also admitted by them. The trial Court has also considered that the defendants have also not produced any documents to show that the title of the property stands in their name.
Except the kist receipt for the Patta number for the year 1998 to 1992, no other documents has filed to show that they are in possession of the property. The property is admittedly vacant land and title has been admitted. Though they produced the sale deed under Ex.B1, the categorical stand of the defendants in the previous suit in O.S.No.49 of 1963, they infact admitted the title and in C.M.A.No.17/1994, the possession has been confirmed in favour of the plaintiffs' father.
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14. The pleadings and previous judgments make it very clear that despite the purchase in the year 1961 under Ex.B1, the title did not go to them, in view of the compromise decree. It is also to be noted that in Ex.A2-sale deed, though the suit property was not found in the schedule, the recitals of the sale deed indicate that the entire properties mortgaged under Ex.A1 were sold. Merely because the second schedule was omitted, it cannot be said that title did not pass to him. The first defendant and their parents admitted the title of the plaintiffs in respect of the suit properties in previous suit. When the defendants were already parties to the suit in respect of the same properties and issues were framed in O.S.No.510 of 1970 and it reached the finality. Now they cannot set up title based on the earlier document in the year 1961, namely Ex.B1. The issue was already decided substantially and directly with regard to the suit property and reached finality. Such findings definitely operates as res judicata and the defendants are infact barred from claiming any right over the suit property. Further, the compromise deed also declared the title in favour of the plaintiffs' father in respect of the suit properties.
15. Much reliance has been placed on the judgment of the Hon'ble Supreme Court reported in 1991 (1) MLJ 38-Bhoop Singh case (supra). In the 10/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 above case, the Hon'ble Supreme Court has held that if the compromise decree is bonafide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration. Further, it is held that the compromise decree were to create for the first time the right, title or interest in immovable property of the value of Rs.100/- or upwards in favour of the any party to the suit, the decree or order would require registration. It is the contention of the learned Senior Counsel that even the compromise decree is valid, the first time right has been created under the compromise decree in respect of the suit property. Therefore, the same is required registration.
16. It is relevant to note that Section 17 Sub-section (2) (vi) of the Registration Act, 1908, reads as follows:
“17. D o c u m e nts of which r e g i st r a t i o n is c o m p u l s o r y : (1) Th e foll o win g d o cu m e nts s h all b e re gi ster e d , if the pr o p erty to w hi ch they relate is situate in a di stri ct in w hi ch , and if they h ave b e e n e x e c ute d o n o r afte r the d ate o n w hi ch , A ct N o. XVI of 1864, o r the Indian R e gi stration A ct, 1866, (20 of 1866) o r the Indian R e gi stration A ct, 1871, (7 of 1871) o r the Indian R e gi stration A ct, 1877, (3 of 1877) o r this A ct c a m e o r c o m e s into for c e , na m ely:
........
( 2 ) N o t h i n g i n c l a u s e s ( b) a n d ( c) s u b s e c t i o n ( 1 ) 11/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 a p plies to:
(i) .......
(ii).....
(iii)...
(iv)....
(v)....
(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 is the subject matter of the suit or proceeding..”
17. The above Section makes it clear that any decree or order of the Court made a compromise with respect of the suit properties, the same does not require any registration.
18. In the judgment, reported in 2020 (10) SCC 250 (Gurcharan Singh case supra) wherein it has been held by the Hon'ble Apex Court that the compromise decree arising out of immovable property which is the subject matter of the suit or proceedings in question does not require any registration. In the above judgment the Hon'ble Apex Court has also distinguished Bhoop Singh case (supra). The relevant paragraphs are as follows:
“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 12/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 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 registrable.
19) ...
7. A compromise decree passed by a Court would ordinarily be covered by Section 17(1)(b) but subsection(2) of Section 17 provides for an exception for 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 is the subject-matter of the suit or proceeding. Thus, by virtue of sub-
section(2)(vi) of Section 17 any decree or
order of a Court does not require
registration. In sub-clause(vi) of sub-
section (2), one category is excepted from
sub-clause(vi), i.e., a decree or order
expressed to be made on a compromise and
comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17(2)(vi).
13/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 A copy of the decree passed in Suit No.250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 04.10.1985 was passed by the Court for the property, which was subject matter of the suit. Thus, the exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree dated 04.10.1985 was not required to be registered on plain reading of Section 17(2)(vi)....”
19. Similarly in the case of Som Dev and Others Vs. Rati Ram and Another, (2006) 10 SCC 788 in paragraph No.13, the Hon'ble Apex Court has held as follows:
“13. This Court in Som Dev and Others Vs. Rati Ram and Another, (2006) 10 SCC 788 while explaining Section 17(2)(vi) and Section 17(1)
(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down the following:-
'18....But with respect,it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) 14/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject- matter of the suit..'
21). In the above case, the earlier decree, which was sought to be ignored on the ground that it was not registered related only with the suit property.
This Court held that the said decree did not require registration. Following reasons were given in paragraph 14:-
“16. In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., any decree or order of a Court. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub- section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 07.01.2015 as well as the judgment of the High Court dated 13.02.2017. The compromise decree dated 04.10.1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly.” 15/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996
20. The Hon'ble Apex Court, in the judgment reported in 2020 (10) SCC 250 (Gurucharan Singh and others v. Angrez Kaur and another) after considering the judgment in Bhoop Singh case (supra) has held that “when legislature has specifically excluded applicability of clause (b) and (c) with regard to any decree or order of a Court, applicability of Section 17(1)(b) cannot be imported in Section 17(2)(v) by indirect method”. Therefore this Court is of the view that suit property was the subject matter of the compromise decree and it was the subject matter of earlier suit and hence, the same does not require any registration.
21. Having regard to the above judgments and the compromise decree, further, there is no dispute with regard to the identity of the properties. The possession of the defendants also not established. The plaintiffs' title in view of the previous proceedings has to be protected and once the title was established in favour of the plaintiffs as the suit property is the vacant land, the possession follows title. Accordingly, this Court is of the view that the plaintiffs are certainly entitled to the decree and judgment passed by the trial Court. The Substantial Questions of Law are answered in favour of the plaintiffs. 16/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 17/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996
22. In the result, the Second Appeal stands allowed. The judgment and decree, dated 18.06.2011, made in A.S.No.5 of 1996 passed by the learned Subordinate Judge, Sivaganga, is set aside and the decree and judgment, dated 31.10.1995, made in O.S.No.493 of 1993 passed by the learned District Munsif, Sathankulam, is confirmed. No Costs.
25.01.2021 Index : Yes/No Internet : Yes/No PJL To
1.The Subordinate Judge, Sivaganga.
2.The District Munsif, Sathankulam.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
18/19 http://www.judis.nic.in S.A.(MD)No.622 of 1996 N.SATHISH KUMAR, J.
PJL S.A.(MD)No.622 of 1996 25.01.2021 19/19 http://www.judis.nic.in