Kerala High Court
Munnoottam Kuzhiyil Vayaloli Balan ... vs Thekkedath Sankara Kurup on 9 August, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
FRIDAY, THE 22ND DAY OF NOVEMBER 2013/1ST AGRAHAYANA, 1935
FAO.No. 335 of 2011 ( )
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AS 6/2010 of SUB COURT, QUILANDY DATED 09-08-2011
OS 20/2009 of MUNSIFF COURT, PAYYOLI DATED 23-12-2009
APPELLANT IN RSA - RESPONDENT IN AS- DEFENDANT IN THE SUIT:
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MUNNOOTTAM KUZHIYIL VAYALOLI BALAN NAMBIAR
S/o.AMMALU AMMA, RESIDING AT KAMMALLI
KARUVANCHERI AMSOM, MUTHUVANA DESOM
VATAKARA TALUK, KOZHIKODE DISTRICT
BY ADVS.S V BALAKRISHNA IYER (SR.)
SRI.P.B.KRISHNAN
SMT.GEETHA P.MENON
SRI.P.B.SUBRAMANYAN
SRI.MANUEL KACHIRAMATTAM
RESPONDENT IN RSA- APPELLANT IN AS - PLAINTIFF IN SUIT:
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THEKKEDATH SANKARA KURUP
S/o.NARAYANI AMMA, KARUVANCHERI AMSOM
MUTHUVANA DESOM, VATAKARA TALUK
KOZHIKODE DISTRICT-673 508
BY ADV. SRI.K.MOHANAKANNAN
BY ADV. SMT.A.R.PRAVITHA
BY ADV. SMT.RASHMI RAVINDRAN
BY ADV. SRI.P.K.BABU
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
22-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
'CR'
THOMAS P.JOSEPH, J.
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F.A.O.No.335 of 2011
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Dated this the 22nd day of November, 2013
J U D G M E N T
After hearing Sri.S.V.Balakrishna Iyer, the learned Senior Advocate for the appellant and Sri.P.K.Babu, the learned counsel for the respondent, the substantial questions of law arising for a decision are re-framed as under:
(i) Whether there is a compromise decree in O.S.No.420 of 1961 of the Munsiff-Magistrate's Court, Payyoli as provided in Rule 3 of Order XXII of the Code of Civil Procedure (for short, "the Code") transferring the right, title, interest and possession of the respondent in the suit property to the appellant?
(ii) Whether the said decree requires registration as provided in Sec.17(1)(b) of the Registration Act (for short, "the Act")?
(iii) Whether the judgment and decree in O.S.No.420 of 1961 of the Munsiff-Magistrate's Court, Payyoli operate as estoppel against the claim of the respondent for partition?
and,
(iv) Whether, the respondent has a surviving cause of action to seek partition and separate possession of the half share he claimed in the suit property in view of the compromise and the judgment and decree in O.S.No.420 of 1961 (referred supra)? F.A.O.No.335 of 2011 2
2. This litigation has its root extended back to the year, 1961 when the appellant filed O.S.No.420 of 1961 in the Munsiff- Magistrate's Court, Payyoli for partition and separate possession of his half share in the suit property and other items with the vendor of the respondent also as a party.
3. The suit property originally belonged to Kunhoonjan Kurup who sold it to his wife, Ammalu Amma and her children, Naryanan Nair and Narayani Amma as per Ext.B3, dated 08.11.1950. After the death of Ammalu Amma, Narayani Amma assigned her undivided half share in the property to the appellant as per Ext.B4, assignment deed dated 19.06.1961. The appellant filed O.S.No.420 of 1961 in the Court of learned Munsiff- Magistrate, Payyoli against Narayanan Nair and others for partition and separate possession of his share in the suit property and other items. Pending that suit, Narayanan Nair assigned his undivided half share in the suit property to his son, the respondent as per Ext.B1, assignment deed dated 31.08.1961 (Ext.A1 is its certified copy) registered on 02.09.1961. In Ext.B1, it is stated that the respondent could get impleaded in O.S.No.420 of 1961 (meaning thereby that Ext.B1, assignment deed was executed when O.S.No.420 of 1961 was pending). There was an application to implead the respondent as additional F.A.O.No.335 of 2011 3 9th defendant in O.S.No.420 of 1961 but no order was passed on that application. While so, the appellant claims, there was a compromise between the parties to O.S.No.420 of 1961 and the respondent. Pursuant to that compromise, O.S.No.420 of 1961 was dismissed. In the year, 2009 the respondent filed O.S.No.20 of 2009 in the Munsiff-Magistrate's Court, Payyoli for partition claiming that he has undivided half share in the suit property, is in joint possession of the said property along with the appellant and paying court fee under Sec.37(2) of the Kerala Court Fees and Suit Valuation Act.
4. The appellant contended that since the time of compromise and decree in O.S.No.420 of 1961, the respondent has ceased to have any right, title, interest or possession of the suit property. Right, title, interest and possession of the respondent in the property was conveyed to him as per the compromise and decree in O.S.No.420 of 1961. Pursuant to the compromise and decree in O.S.No.420 of 1961, he was put in exclusive possession of the property which he is enjoying as its full owner. The suit is hit by res judicate in view of the compromise and judgment and decree in O.S.No.420 of 1961. At any rate, right, title and interest if any of the respondent is lost by adverse possession and limitation.
F.A.O.No.335 of 2011 4
5. Learned Munsiff-Magistrate framed issues whether the respondent has co-ownership right or possession of the suit property, whether the said property is partible, whether the suit is barred by res judicata and whether the respondent is entitled to the reliefs claimed? Learned Munsiff-Magistrate held that in view of the compromise and judgment and decree in O.S.No.420 of 1961, the respondent has ceased to have any right, title, interest or possession of the suit property. Learned Munsiff- Magistrate took the view that since the compromise decree concerned the subject matter of O.S.No.420 of 1961, that decree was not compulsorily registrable. A plea of adverse possession and limitation was answered in favour of the appellant. But, on the issue regarding res judicata, learned Munsiff-Magistrate was of the view that since the decree in O.S.No.420 of 1961 is based on a compromise, Sec.11 of the Code has no application and hence the suit is not hit by res judicata. The suit was dismissed.
6. Respondent challenged the judgment and decree in the Sub Court, Koyilandy in A.S.No.6 of 2010. Learned Sub Judge held, placing reliance on the decision in Bhoop Singh Vs. Ram Singh Major and Ors. (1995(5) SCC 709) that the decree in O.S.No.420 of 1961 required registration but was not registered and hence that decree could not affect the right, title F.A.O.No.335 of 2011 5 and interest of the respondent in the property. Learned Sub Judge was of the view that as no issue was framed regarding adverse possession and limitation, finding of the learned Munsiff- Magistrate on that question could not be sustained. To decide that question, the suit was remitted to the learned Munsiff- Magistrate. The appellant/defendant challenges that remand in this appeal.
7. Question No.I Ext.B2 is the certified photocopy of compromise filed in O.S.No.420 of 1961 where the terms of settlement are stipulated. The respondent has not made any mention in the plaint about O.S.No.420 of 1961, the compromise or the judgment and decree therein. When examined as PW1, the respondent initially denied that he knew about pendancy of O.S.No.420 of 1961. He denied that he was a party to Ext.B2, compromise petition. But when he was confronted with his signature in Ext.B2, he admitted that he had signed that document. He gave instruction to prepare Ext.B1 (which stated about pendancy of O.S.No.420 of 1961 and that he could get impleaded in that suit). Though he claimed that the original title deed (Ext.B1) was kept by him, he admitted that he learned that the appellant produced Ext.B1 in the present suit. He has nothing to say about the recital in Ext.B1 about F.A.O.No.335 of 2011 6 O.S.No.420 of 1961. He has not enquired about that suit. He has not paid revenue for the suit property. He was away at Chennai for about 20 years after 1961. He claimed that he had orally entrusted the property to the appellant for its management. The appellant produced Exts.B5 to B42 to show that he is in exclusive possession of the property, has effected mutation of the entire property in his name and is paying revenue. Learned Munsiff- Magistrate, based on the oral and documentary evidence held that the appellant is in exclusive possession of the suit property. The lower appellate court did not interfere with that finding but only directed the learned Munsiff-Magistrate to frame an issue regarding adverse possession and decide that issue. Having heard both sides, I do not find any substantial question of law involved in the finding regarding exclusive possession of the property with the appellant.
8. Ext.B2, compromise (in O.S.No.420 of 1961) says that the application to implead the respondent as additional 9th defendant in O.S.No.420 of 1961 was pending decision, that Adv. V.V Subramania Ayyar had appeared for the respondent and his vendor (1st defendant) and that the dispute is settled between the appellant, the respondent, his vendor etc. due to the intervention of respectable mediators. Accordingly, the respondent, his F.A.O.No.335 of 2011 7 vendor, etc. relinquished all their right, title, interest and possession in the suit property, etc, and conveyed the same to the appellant for sufficient consideration. The property was put in the possession of the appellant which he acknowledged. The documents of title were given to the appellant. He was permitted to get back the documents produced in O.S.No.420 of 1961 (which includes Ext.B1, produced by the vendor of the respondent in O.S.No.420 of 1961). Respondent and his vendor would thereafter have no dispute over the property. The compromise said that in the circumstances it was not necessary (for the appellant) to further prosecute O.S.No.420 of 1961 and hence the compromise be recorded and the suit be struck off from the file.
9. A copy of the decree in O.S.No.420 of 1961 is not exhibited in this case. Ext.A3 is the copy of judgment dated 31.10.1961. The decree must be in terms of the judgment. Ext.A3, judgment is as under:
"Suit for partition and separate possession of the plaintiff's half share of the properties with past and future profits and costs of suit.
2 Defendants have appeared in the suit.
3. Matter settled by razi. The suit is dismissed."
(emphasis supplied) F.A.O.No.335 of 2011 8
10. Sec.17 of the Act deals with documents which are compulsorily registrable. Sub sec.(1)(b) deals with non testamentary instruments (other than instruments mentioned in clause (a)) 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 one hundred rupees and upwards, to or in immovable properties. Sub Sec.(2) of Sec.17 deals with exceptions to documents which are otherwise compulsorily registrable under clauses (b) and (c) of Subsec.(1). Clause (vi) of Subsec.(2) which is relevant here, refers 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 that which is the subject matter of the suit or proceeding)".
11. It is argued that there is no decree in terms of or accepting the compromise and hence it is not a decree coming under Rule 3 of Order XXIII of the Code to attract Sec.17(2)(vi) of the Act.
12. In Bhoop Singh Vs. Ram Singh Major and Ors.
(supra) reference was made to the decision in Fazal Rasul Khan Vs. Mohd-ul-Nisha (AIR 1944 Lahore 394) where the F.A.O.No.335 of 2011 9 Bench opined that when a suit is disposed of saying "suit compromised and accordingly dismissed" it would not, unless the terms of the compromise are in some way embodied in the decree or the order be a compromise decree and that if the suit is disposed of by saying "suit decreed in terms of the compromise or suit dismissed in terms of the compromise" that would indicate that it is a compromise decree. In S.Noordeen Vs. V.S.Thiru Venkita Reddiar and Ors. (1996(1) KLT 761) also a similar observation is made in paragraph 9.
13. From the above observations I do not inclined to think that the Supreme Court was saying exhaustively in what manner should a compromise decree be. The observations are illustrative. What is required is that the terms of the compromise should some way be embodied in or indicated by the decree. The Code, as it now stands or as it stood before did not provide any particular form for a compromise decree. Nor does it say how the compromise is to be recorded. Rule 3 of Order XXIII of the Code of 1908 stated as under:
"Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such F.A.O.No.335 of 2011 10 agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit."
Thus when there is a compromise between the parties, what is required is that the Court has to order such agreement, compromise or satisfaction to be recorded and pass a decree in accordance therewith so far as it relates to the suit.
14. Reference can be made to Laraiti Devi Vs. Sia Ram (AIR 1957 All 820 (paragraphs 9 and 10)) where, referring to Rule 3 of Order XXIII of the Code, it is said that Rule 3 only said that the compromise or adjustment should be ordered to be recorded and that it does not lay down how it is to be recorded. Where the order clearly provides that the compromise should form part of the decree, it is certainly one of the ways in which the compromise could be recorded. In Mt.Shah Jahan Begam Vs. Ghulam Rabani (AIR 1935 All 738) it is held that an omission to record compromise is not fatal to the validity of the decree passed on compromise since the defect is curable by Sec.99 of the Code (even as it now exists).
15 The Apex court in Amteshwar Anand Vs. Virender Mohan Singh and Ors. (AIR 2006 SC 151), in paragraph 28 pointed out that Rule 3 of Order XXIII of the Code casts an obligation on the Court to be satisfied that a suit has been F.A.O.No.335 of 2011 11 adjusted wholly or in part by a lawful agreement or compromise in writing and signed by the parties and that there is a presumption that the Court was so satisfied unless the contrary is proved. Thus, what is essential is that there must be a compromise or agreement by which the suit is wholly or in part adjusted and the Court which is to act upon that compromise or agreement is satisfied of its correctness. That compromise or agreement has to be recorded and a decree has to be passed accordingly.
16. I have referred to Ext.B2, above. The appellant sought partition and separate possession of his half share in O.S.No.420 of 1961. The respondent and his vendor conveyed their half share in the property to the appellant. In that situation the appellant (as plaintiff) required no relief in O.S.No.420 of 1961. In the light of Ext.B2, nothing survived to be decided in O.S.No.420 of 1961. What was required was only to record the compromise and strike off the suit. By Ext.B2, the appellant, the respondent and his vendor requested the Court to record the compromise and strike off the suit from the file. Considering that request the learned Munsiff-Magistrate said;
"matter settled by razi. The suit is dismissed".
Except by accepting, recording and acting in terms of Ext.B2, F.A.O.No.335 of 2011 12 compromise as provided under Rule 3 of Order XXIII of the Code, O.S.No.420 of 1961 could not have been dismissed at that stage (See Ajed Singh Vs. Chatra and Ors. (2005)2 SCC 567). It was simply in acceptance of the compromise that the learned Munsiff-Magistrate dismissed O.S.No.420 of 1961. There is no rule that a compromise decree should be an executable one or that it could not be one dismissing the suit. Of course it would have been more appropriate if the decree contained the terms of Ext.B2 or that it said that the suit is dismissed in terms of Ext.B2. But the failure of Court to do so shall not prejudice anybody. When the learned Munsiff-Magistrate said in Ext.A3 that "matter settled by razi", the Court was taking congnizance of that compromise. Dismissal of O.S.No.420 of 1961 has, therefore to be treated as in acceptance and as per terms of the compromise. To say otherwise at this distant point of time would be too technical and would only promote injustice. Rule 3 of Order XXIII is only procedural. A procedural provision must be interpreted as a handmaid of justice in order to advance and further the interest of justice and not as a technical rule.
17. In this connection, I must refer to the decision in Emmanuel Vs. Damodaran Achari (1987(2) KLT 831). That decision concerned an order for eviction of a tenant on a F.A.O.No.335 of 2011 13 compromise otherwise entitled to the protection of the Act 2 of 1965. Under Act 2 of 1965, a tenant could be evicted only on the Rent Control Court being satisfied of the existence of one or other grounds stated in Sec.11 of the said Act. The order of the compromise did not say that the Court was satisfied of existence of the ground which enabled the landlord to get the order for eviction but, sufficient materials were available in the compromise petition. This Court held that the order could not be said to be not executable and that the Court must be deemed to have been satisfied of existence of the ground since sufficient materials were available in the compromise petition and on record.
18. It is also useful to refer to Banwari Lal Vs. Smt.Chando Devi and Anr. (AIR 1993 SC 1139), paragraph 10 where the prayer made in the compromise petition was to accept the same and pass an order accordingly. The order said that the proceeding is dismissed as per the compromise. The order on the face of it purported to dismiss the suit on the basis of the terms and conditions mentioned in the petition of the compromise. It was held that validity of that order has to be judged treating it to be an order deemed to have been passed in purported exercise of the power conferred on the Court by Rule 3 F.A.O.No.335 of 2011 14 of Order XXIII of the Code.
19. Ext.A3 manifests intention of the learned Munsiff- Magistrate to terminate the suit accepting the request in Ext.B2 to record the compromise and strike off the suit. In the circumstance, there is no difficulty in holding that the decree which followed Ext.A3, judgment is one coming within the purview of Rule 3 of Order XXIII of the Code.
20. Question No.II Next question is whether the said decree required registration to extinguish the right, title, interest and possession of the respondent in the suit property and convey it to the appellant?
21. I have referred to Subsec.(2)(vi) of Sec.17 of the Act. The lower appellate court took the view that in view of Bhoop Singh Vs. Ram Singh Major and Ors.(supra), the decree required registration, it is not so registered and hence there is no conveyance of the right, title or interest of the respondent in the suit property to the appellant.
22. Learned Senior Advocate, relying on the decisions in Thiru Venkita Reddiar Vs. Noordeen (supra) (1977 KLT
877), S.Noordeen Vs. V.S.Thiru Venkita Reddiar (supra) (N.Khosla Vs. Rajlakshmi and Ors. (AIR 1996 SC 1293) and F.A.O.No.335 of 2011 15 Som Dev Vs. Rati Ram & Anr. (AIR 2006 SC 3297) has argued that a compromise decree so far as it concerns subject matter of the suit or proceeding does not require registration. It is argued that the decision in Bhoop Singh Vs. Ram Singh Major and Ors. is not applicable to the facts of the case since as pointed out in Som Dev Vs. Rati Ram & Anr. the issue involved in Bhoop Singh Vs. Ram Singh Major and Ors. was not transfer of right, title and interest in immovable property as per a compromise decree but, an admission made in the pleadings as regards conveyance of right. It is argued that Bhoop Singh Vs. Ram Singh Major and Ors. merely concerned Subsec.(1)(a) of Sec.17 of the Act and hence the question of application of Subsec.2(vi) of Sec.17 of the Act did not arise. It is also argued that Som Dev Vs. Rati Ram & Anr. (supra) is specific in the finding that a compromise decree so far as it deals with the subject matter of the suit or proceeding does not require registration.
23. Learned counsel for the respondent has contended that the decision in Bhoop Singh Vs. Ram Singh Major and Ors. is based on the decision of the Constitution Bench in Tek Bahadur Bhujil Vs. Debi Singh Bhujil and Ors. (AIR 1966 SC 292). Reference is made to paragraphs 12, 13 and 15 of the F.A.O.No.335 of 2011 16 said decision. Reliance is also placed on the decision in K.Raghunandan and Ors. Vs. Ali Hussain Sabir & Ors. (AIR 2008 SC 2337) to contend that the decision in Som Dev Vs. Rati Ram & Anr. has not taken a view different from what is laid down in Bhoop Singh Vs. Ram Singh Major and Ors. According to the learned counsel, whether the decree is based on a compromise or not, if it creates or extinguishes right in immovable property for the value of rupees hundred or upwards for the first time, such decree requires registration. It is argued that the appellant and the respondent having acquired undivided half right in the suit property as per the respective assignment deeds, there was no unity of title among them and hence when the half right of the respondent was conveyed to the appellant, it is creation of a right on the appellant over that half right and extinguishment of right of the respondent over it for the the first time. In the circumstance, the decree required registration. According to the learned counsel, Sec.17(2)(vi) of the Act has to be interpreted in accordance with the object of that Act. Reliance is placed on the decisions in Punjab Land Development and Reclamation Corporation Ltd. Vs. Presiding Officer, Labour Court, Chandigarh (1990 KHC
992). Learned counsel has also invited my attention to F.A.O.No.335 of 2011 17 Secs.2(d), (e), (j), (k) and Sec.59 of the Kerala Stamp Act. It is further argued that a final decree in a suit for partition is required to be engrossed in non judicial stamp paper and a copy send to the Registrar as provided in Rules.237 and 238 of the Civil Rules of Practice. According to the learned counsel, the decree in question even if it is assumed, conveyed right, title and interest of the respondent in the suit property to the appellant, requires registration. It is not so registered and hence consequence under Sec.49 of the Act should follow. Reliance is also placed on Satish Kumar and Ors. Vs. Surinder Kumar and Ors. (AIR 1970 SC 833) and Veeramachineni Gangadhara Rao Vs. The Andhra Bank Ltd. And Ors. (AIR 1971 SC 1613)).
24. Learned counsel has also placed reliance on the decision in Phool Patti and Anr. Vs. Ram Singh and Anr. ((2009)13 SCC 22) where, noting the apparent contradiction between the decisions in Bhoop Singh Vs. Ram Singh Major and Ors. and K.Raghunandan and Ors. Vs. Ali Hussain Sabir & Ors. the question was referred to a larger Bench. It is argued that since the question is not so far settled by a larger Bench, this Court has to wait until the larger Bench decided the question. It is also argued that law declared by the Supreme F.A.O.No.335 of 2011 18 court is law of the land binding on all Courts under Article 141 of the Constitution. Reliance is placed on the decisions in State of Gujarat and Anr. Vs. Manoharsinhji Pradyumansinhji Jadeja (2012 KHC 4711), Priya Gupta and Anr. Vs. Addl.Secy. Ministry of Health and Family Welfare and Ors. (2012 KHC 4743) and Commissioner of Sales Tax, J&K and Ors. Vs. Pine Chemicals Ltd. And Ors. (1995 KHC 1209).
25. A further argument the learned counsel has advanced is that the respondent having not been impleaded as additional defendant in O.S.No.420 of 1961, he cannot be said to be a party to that suit and hence the decree in O.S.No.420 of 1961 would not bind him. Reliance is placed on the decision in Sahu Madho Das and Ors. Vs. Mukand Ram and Anr. (AIR 1955 SC 481).
26. I shall first dispose of the last of the above said contentions raised by the learned counsel for the respondent. No order is produced to show impleadment of the respondent as an additional defendant in O.S.No.420 of 1961. Ext.A3, judgment does not show that the respondent was impleaded as an additional defendant in that suit. Ext.B1, assignment deed, was executed during pendancy of O.S.No.420 of 1961. The transfer in favour of the respondent is hit by Sec.52 of the Transfer of Property Act. In view of Sec.146 and Rule 10 of Order XXII of the F.A.O.No.335 of 2011 19 Code, the assignee-pendente lite could be proceeded against in the same suit. Even without impleading the assignee-pendente lite, the suit could proceed with his vendor on record. The decree in the suit will bind the assignee-pendente lite as well. He could avoid the decree in the suit, if it is adverse to him on the ground that the decree was obtained collusively and/or fraudulently. If authority is required for the above proposition, it is available in Rai Charan Mandal and Anr. Vs. Biswanath mandal and Ors. (AIR 1915 Calcutta 103), Lilabati Dasi Vs. Chitpore Golabari Co. (AIR 1938 Calcutta 481), Jagdish Chandra Vs. Kameshwar Singh (1953 Patna 178) and Somulu Vs. Appalanaidu (AIR 1958 Andra Pradesh 507) and Kusuma Dei Vs. Malati (AIR 1969 Orissa 195). It follows that even if the respondent was not impleaded as an additional defendant in O.S.No.420 of 1961, he being an assignee-pendente lite and his vendor being a defendant in that suit, the decree would bind the respondent.
27. The above apart, it is too technical to contend that the respondent was not impleaded as a party in O.S.No.420 of 1961. That, no order was passed on the application impleading the respondent as an additional defendant is only an irregularity which does not affect the compromise decree. With the F.A.O.No.335 of 2011 20 application to implead him as additional 9th defendant pending and himself being represented in that application by the same lawyer who appeared for his vendor (1st defendant), learned Munsiff-Magistrate accepted Ext.B2, compromise to which the respondent also was a party and passed a decree. It is idle to contend that the respondent is not bound by that decree.
28. Coming back to the question of registrability of the decree in O.S.No.420 of 1961, I shall refer to Bhoop Singh Vs. Ram Singh Major and Ors. There, the decree was based on an admission made by one of the parties to the litigation in his pleading. Question arose whether the decree is compulsorily registrable?. The Supreme Court held, among other things, "if the compromise decree were to create for the first time right, title or interest in immovable property of the value of rupees hundred or upwards in favour of any party to the suit, the decree or order would require registration".
29. I may immediately refer to the decision of this court in Thiru Venkita Reddiar Vs. Noordeen. There, the Pala Central Bank filed O.S.No.95 of 1953 for recovery of money. Certain properties were attached in that suit. There was a compromise decree creating charge over the properties so attached though, those properties were not included in the plaint schedule. The F.A.O.No.335 of 2011 21 decree holder/Bank went into liquidation. The liquidator purchased the property in auction and assigned it to the revision petitioner (in Thiru Venkita Reddiar Vs. Noordeen). The same property was again sold in O.S.No.38 of 1960 as if it belonged to the defendant in O.S.No.95 of 1953. The revision petitioner filed a claim petition under Rule 21 of Order 58 of the Code in O.S.No.38 of 1960. Question arose whether the compromise decree in O.S.No.95 of 1953 (creating charge over properties which were merely attached and which were not part of the plaint schedule property) required registration?. This Court was of the view that though the properties over which the compromise decree created charge was not included in the plaint schedule, those properties must be treated as part of subject matter of the suit and hence the compromise decree did not require registration in view of Sec.17(2)(vi) of the Act. That decision (Thiru Venkita Reddiar Vs. Noordeen) was challenged in the Supreme court. The Supreme Court affirmed the decision in S.Noordeen Vs. V.S.T. Venkita Reddiar. The Supreme Court held that though the properties over which the compromise decree created charge were not specifically included in the plaint schedule, it must be treated as part of subject matter of the suit. The Supreme Court affirmed the decision of this F.A.O.No.335 of 2011 22 Court that the compromise decree did not require registration.
30. Som Dev Vs. Rati Ram & Anr. considered and distinguished the decision in Bhoop Singh Vs. Ram Singh Major and Ors. It was held that though Bhoop Singh Vs. Ram Singh Major and Ors. discussed the scope of Sec.17(2)(vi) of the Act, there was no scope for going into that question in the said case since the facts of the case indicated that it was not a case falling under Subsec.(1)(b) of Sec.17 of the Act but a case falling under Subsec.1(a) of the Act since the decree was based on an admission in pleading and it could only be taken as a gift of immovable property by such admission. It was also held, in paragraph 7 that on a plain reading of Sec.17 of the Act with reference to Subsec.2(vi), a decree or order of a Court and a compromise decree that relates only to the subject matter of the suit need not be registered on the ground that it is a non- testamentary instrument which purports to operate, create, declare, assign, limit or extinguish any right or in immovable property, etc. But, if a suit is decreed on the basis of a compromise and that compromise takes in property that is not the subject matter of the suit, such a compromise decree would require registration.
F.A.O.No.335 of 2011 23
31. Learned counsel for the respondent has a contention that a compromise decree is out of the purview of Subsec.2(vi) of Sec.17 of the Act. I however, find myself unable to accept that contention on the face of Subsec.(2)(vi) of Sec.17 which is clear and admits of no ambiguity that a decree on a compromise concerning property which is the subject matter of the suit or proceeding does not require registration. That is what the Supreme Court also stated in specific terms in paragraph 7 of Som Dev Vs. Rati Ram & Anr. The same view is taken in Bachan Singh and Ors. Vs. Kartar Singh and Ors. (JT 2001 (10) SC 64). Thus, going by the decisions in Som Dev Vs. Rati Ram & Anr. (supra) and Bachan Singh and Ors. Vs. Kartar Singh and Ors. (supra), even if right is created or extinguished immovable property for the value of rupees hundred or upwards for the first time as per a compromise decree, that decree would not require registration if the compromise concerns subject matter of the suit or proceeding.
32. Though learned counsel for the respondent has referred me to the decisions in Satish Kumar and Ors. Vs. Surinder Kumar and Ors. (supra) and Veeramachineni Gangadhara Rao Vs. The Andhra Bank Ltd. And Ors. (supra), the former related to creation of right as per an F.A.O.No.335 of 2011 24 arbitration award while the latter related to creation of an equitable mortgage. Those decisions have no application to the question involved.
33. In K.Raghunandan and Ors. Vs. Ali Hussain Sabir & Ors., a decree on compromise was passed with respect to a passage which was not the subject matter of the suit. Reference was made to the decisions in Som Dev Vs. Rati Ram & Anr. and Bhoop Singh Vs. Ram Singh Major and Ors. It was held that a compromise in respect of immovable property comprising other than that which was the subject matter of the suit or the proceeding would require registration. In paragraph 17, reference was made to Sec.17 of the Act and in paragraph 18, it is stated that a plain reading of Sec.17 clearly shows that the property which is not subject matter of the suit or proceeding would come within the purview of exception contained in clause
(vi) of Subsec.(2) of Sec.17 of the Act (meaning thereby that the compromise decree with respect to property which is not subject matter of the suit or proceeding) and that if a compromise was entered in respect of immovable property comprising other than that which was subject matter of the suit or proceeding, the same would require registration. In paragraph 23, it is held, referring to the decision in Bhoop Singh Vs. Ram Singh Major and F.A.O.No.335 of 2011 25 Ors. that if the consent terms create a right for the first time as contra distinguished from recognition of a right, registration thereof would be required if value of the property is rupees hundred or upwards. But, the said observation can only be understood in the light of the dispute required to be resolved in that suit - whether a compromise decree concerning a property which is not the subject matter of the suit required registration and since no deviation was made from the law laid down in Som Dev Vs. Rati Ram & Anr. In paragraph 28, reference was made to the decision in Som Dev Vs. Rati Ram & Anr. and after extracting paragraph 18 of Som Dev Vs. Rati Ram & Anr., it was observed (in K.Raghunandan Vs. Ali Hussain Sabir) that the said decision did not lay down any law which runs contrary to or inconsistent with the law laid down in Bhoop Singh Vs. Ram Singh Major and Ors. But, in paragraph 29 of K.Raghunandan Vs. Ali Hussain Sabir), in unmistakable terms the Supreme Court held, "if a right is created by a compromise decree or is extinguished, it must compulsorily be registered. Clause (vi) is an exception to the exception. If the latter part of clause (vi) of Subsec.2 of Sec.17 of the Act applies, the first part thereof shall not apply". F.A.O.No.335 of 2011 26
34. What is stated in paragraph 29 above is clear that when the compromise decree is with respect to a property which is the subject matter of the suit or proceeding, registration is not compulsory. But, when the compromise decree concerns property which is not the subject matter of the suit or proceeding, it requires registration.
35. The other decision referred to me is Phool Patti and Anr. Vs. Ram Singh and Anr. There, inconsistency was noticed between the decisions in Bhoop Singh Vs. Ram Singh Major and Ors. and K.Raghunandan Vs. Ali Hussain Sabir as regards interpretation of the extension of clause (vi) of Subsec.(2) of Sec.17 of the Act. In paragraph 17, after referring to Sec.17 (2)(vi) of the Act, it is observed (in Phool Patti and Anr. Vs. Ram Singh and Anr.), "In our opinion the exception mentioned in Sec.17(2)(vi) means that if a suit is filed by the plaintiff in respect of Property A, then a decree in that suit in respect of immovable property B (which was not the subject matter of the suit at all) will require registration."
The Supreme Court observed that the said view was taken in K.Raghunandan Vs. Ali Hussain Sabir (supra) but a different view was taken in Bhoop Singh Vs. Ram Singh Major and Ors. (where it was held that a decree which for the first time F.A.O.No.335 of 2011 27 creates or extinguishes right in immovable property of the value of rupees hundred or upwards required registration). Noticing that inconsistency, the matter was referred to a larger Bench for decision. The larger Bench has not so far decided the question.
36. Much was argued by the learned counsel for the respondent based on Phool Patti and Anr. Vs. Ram Singh and Anr. that in so far as the decision in K.Raghunandan Vs. Ali Hussain Sabir has not become final as the matter was referred to a larger Bench, this Court has to await decision of the larger Bench.
37. Phool Patti and Anr. Vs. Ram Singh and Anr. is only a reference order. An order of reference does not decide rights of parties though, it may contain the tentative views of the learned Judge making the reference but, not the final conclusions (See Kannappan Vs. R. T. O. Ernakulam(1988(1) KLT 902 - DB)). Since Phool Patti and Anr. Vs. Ram Singh and Anr. is only a reference order, that cannot be taken as law declared under Art.141 of the Constitution. Moreover, Phool Patti and Anr. Vs. Ram Singh and Anr. was only doubting the correctness of Bhoop Singh Vs. Ram Singh Major and Ors.
38. Even otherwise, on the face of the inconsistency between Bhoop Singh Vs. Ram Singh Major and Ors. and F.A.O.No.335 of 2011 28 K.Raghunandan Vs. Ali Hussain Sabir, both rendered by Benches of co-equal strength of the Supreme Court, until the reference is answered by the larger Bench, this Court is bound to follow the latter decision - K.Raghunandan Vs. Ali Hussain Sabir as held by the Full Bench of this Court also in Raman Gopi Vs. Kunju Raman Uthaman (2011(4) KLT 458). It follows that since the decree in O.S.No.420 of 1961 is concerning the subject matter of that suit (which is the suit property herein), that decree did not require registration compulsorily and is saved by the exception contained in Subsec.(2)(vi) of Sec.17 of the Act.
39. In the light of my findings of question Nos.1 and 2, I hold that the undivided half right of the respondent in the suit property was extinguished and stood conveyed to the appellant by Ext.B2, compromise and Ext.A3, judgment and decree in O.S.No.420 of 1961. Since then, the respondent ceased to have any right, title, interest or possession in the said property.
40. Question No.III Assuming that notwithstanding Ext.B2, compromise, Ext.A3, judgment and the decree in O.S.No.420 of 1961 the respondent continued to have undivided half share in the suit property, is he estopped from claiming partition and separate possession is the next question for a decision. F.A.O.No.335 of 2011 29
41. Learned counsel for the respondent, referring to question Nos.3 and 4 raised in this appeal and the issue regarding adverse possession and limitation has argued that no issue were framed by the trial court regarding the same and hence this Court cannot and may not decide those questions. Reliance is placed on Karunakaran Vs. Bhaskara Panicker and Ors. (1999 KHC 269), Venkataramanappa Vs. Narasaiah (2004 KHC 3886), Vishwanatha Achari Vs. Kanakasabapathy (2005 KHC 1249), Lalita Vs. Civil Judge (Jr.Div.), Udaipur City (South) and Ors. (2005 KHC 6057), Fiza Developers Inter Trade P. Ltd. Vs. AMCI (I) Pvt. Ltd and Anr. (2009 KHC 7304), Prem Kunwar Vs. State of Chathisgarh and Ors. (2011 KHC 2245), Urmila Bai Vs. Foolkumari & Ors. (2011 KHC 2429) and Saline Vs. Mary Varghese and Anr. (2013(1) KHC 66).
42. I have gone through the written statement of the appellant where, in paragraph 10, it is contended that the suit is hit by res judicata (for the reason of the compromise decree in O.S.No.420 of 1961). The learned Munsiff-Magistrate found against that issue for the reason of the decree in O.S.No.420 of 1961 being a compromise decree and as there was no final decision after hearing the parties. The present contention that in F.A.O.No.335 of 2011 30 view of Ext.B2, compromise, Ext.A3, judgment and the decree in O.S.No.420 of 1961 claim for partition is barred by estoppel is essentially contained in the plea that the suit (itself) is barred by res judicata. In view of the decisions in Madhavan Pillai Vs. Erahim (1964 KLT 313), Damayanthi Vs. Theyyam and Ors. (1979 KLT 85) and Chidambaram Pillai Vs. Madhavi Amma (1988(2) KLT 427), even in an appeal arising from an order of remand, this Court is entitled to look into the whole issue and finally dispose of the suit. Rule 24 of Order XLI of the Code also requires mention. That provision says that where the evidence upon the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than on which the appellate court proceeds.
43. I started my judgment by saying that the root of this litigation goes back to 1961. The question whether a party is the plaintiff or the defendant has little importance in a suit for partition between co-owners. Neither the respondent (in spite of provision in Ext.B1 that he could get impleaded in O.S.No.420 of 1961) nor his assignor sought partition in that suit though they F.A.O.No.335 of 2011 31 could have. Instead, they allowed the suit filed by the appellant to be dismissed in view of the compromise. After Ext.A3, judgment dated 31.10.1961 there was no move from the respondent claiming any right over the property until filing of the present suit in the year, 2009. In the meantime, the appellant has been enjoying the property as its exclusive owner, having obtained mutation in his name and paying revenue (Exts.B7 to B42). The respondent never paid revenue for the property. He was away at Chennai for about 15-20 years after 1961. The appellant says that at a time he was hard pressed for money, he wanted to sell the suit property and learning that, in an attempt to extract money the respondent filed the suit in the year, 2009. A decision on question Nos.3 and 4 raised in the appeal does not require additional evidence. The litigation cannot continue for ever. I have heard the learned counsel on both sides at length on all the questions raised. In the circumstances, it is hard to order a remand of the case for a decision by the trial court, then a decision by the lower appellate court and possibly, a second appeal. I am satisfied that with the materials on record, question Nos.2 and 3 could be decided by this Court. Hence the contention that as there is no specific issue raised regarding question Nos.3 and 4, those questions cannot be considered by F.A.O.No.335 of 2011 32 this Court is rejected.
44. Sec.115 of the Evidence Act states that when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
45. A "consent decree" is defined in "Constitutional Interpretation" by Graig R. Ducat as a court order in which the affected party agrees to refrain from engaging in certain conduct. Story, in S.222 says that "'Consent' is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side." Stirling, J in Re Smith (59 LJ Ch.284) says that "where a consent is given substantially, the Court does not look very minutely into the form in which it is given".
46. In Sunderabai W/o. Devrao Deshpande and Anr. Vs. Devaji Shankar Deshpande (AIR 1954 SC 82) it is held that estoppel is a rule of evidence and that the general rule is enacted in Sec.115 of the Evidence Act. That is a rule of estoppel by conduct as distinguished from an estoppel by record which constitutes the bar of res judicata (Sec.11 of the Code). In the F.A.O.No.335 of 2011 33 South American and Mexican Co, Vs. Ex parte Bank of England ((1895) 1 Ch37(C)), Lord Herschell has observed, "The truth is, a judgment of consent is intended to put a stop to litigation between the parties just as much is a judgment which results from the decision of the court after the matter has been fought out to the end.
And I think would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action".
The judicial Committee in Kinch Vs. Walcott (1929 AC 482) held at p.493, "First of all their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal."
47. Quoting the above observations of Lord Herschell and the Judicial Committee with approval, the Supreme Court has held in Sailendra Narayan Bhanja Deo Vs. The State of Orissa (AIR 1956 SC 346) that a judgment by consent or F.A.O.No.335 of 2011 34 default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case. The same view is taken in Mt.Chinto and Anr. Vs. Narinjan Singh and Ors. (AIR 1957 Punjab 317), Basant Singh Vs. I.Janki Singh and Ors.(AIR 1967 SC 341) (paragraph 5) Chandra Kant Misir and Ors. Vs. Balakrishna Misir and Ors. (AIR 1970 SC 1536). In Mathukutty Vs. Lakshmikutty Amma (1970 KLT 498) it is held that a consent decree creates an estoppel by judgment between the parties. That was a case where by a compromise decree, the defendant had withdrawn his plea that he is an agriculturist entitled to the protection under the Kerala Act 31 of 1958. It was held that the defendant was estopped from raising the same plea in execution. There are other decisions also in this regard which the learned Senior Advocate for the appellant has brought to my notice but it is not necessary to multiply the pages of this judgment (which otherwise is fairly lengthy having regard to the questions required to be decided and the decisions cited at the Bar which were required to be referred) by quoting all those decisions since the principle laid down in those decisions are what I have stated above.
F.A.O.No.335 of 2011 35
48. The respondent is a party to Ext.B2, compromise. Ext.B1 directed the respondent to get impleaded in O.S.No.420 of 1961. The respondent or his assignor could/should have asked for partition in O.S.No.420 of 1961. They did not. Instead, the respondent and his assignor joined Ext.B2, compromise. Ext.B2 states that the respondent received sufficient consideration and relinquished and conveyed his undivided half share, interest and possession of the suit property to the appellant. Exclusive possession of the property was given to the appellant. The title deeds were handed over to him. He was allowed custody of the documents produced in O.S.No.420 of 1961 (which includes Ext.B1, assignment deed in favour of the respondent). The respondent never asked for custody of Ext.B1. He never challenged Ext.B2. He has not even whispered about Ext.B2 or even O.S.No.420 of 1961 in the present litigation. On the strength of Ext.B2, compromise, Ext.A3, judgment and the decree in O.S.No.420 of 1961 the appellant, to the knowledge of the respondent remained as the exclusive owner in possession of the property, effecting mutation in his name and paying its revenue for 38 years. The respondent never paid the revenue. After Ext.A3, judgment and the decree dated 31.10.1961 the respondent brought the present suit in the year, 2009 . The F.A.O.No.335 of 2011 36 respondent, by his words and deeds has allowed the appellant to believe that the latter is the absolute owner in possession of the suit property and that he could enjoy that property as his own. As pointed out by Graig.R.Ducat in "Constitutional Interpretation" (See paragraph 45 above) the respondent and his vendor, by Ext.B2, plainly agreed not to make any claim over their half right in the suit property. The respondent, by his declaration in Ext.B2 (after receiving sufficient consideration) that he is relinquishing and conveying the half right he has in the suit property to the appellant, allowing O.S.No.420 of 1961 to be dismissed recording that compromise and his subsequent conduct spread over about 38 years has made the appellant believe that the latter is the absolute owner of the suit property and that the respondent ceased to have any right, title, interest or possession of the suit property. Believing on that declaration and conduct, the appellant enjoyed the property as its absolute owner effecting mutation, paying revenue and making improvements. The respondent, under equity and good conscience (which are the guiding principles under the rule of estoppel) could not and should not be allowed to turn back after 38 years and claim partition or assert any right over the suit property. He is estopped.
F.A.O.No.335 of 2011 37
49. Question No.IV That leads me to the last question whether the respondent, in view of Ext.B2, compromise and the judgment and decree in O.S.No.420 of 1961 that followed has a surviving cause of action to seek partition? Has the cause of action of the respondent to seek partition merged in Ext.A3, judgment and the decree in O.S.No.420 of 1961?
50. So far as a suit for partition (as a suit for dissolution of partnership and settlement of account, etc) is concerned, the general rule is that the cause of action is recurring and continues to be so until a preliminary decree is passed or other decision is entered by a competent court. That is because a right to seek partition is an incidence of co-ownership and remains so until the co-ownership is terminated. Hence even when a suit for partition is either dismissed for default or is dismissed as withdrawn even without the permission of the Court to institute a fresh suit, a subsequent suit for the same relief on the same cause of action is not barred (See Bisheshar Das and Anr. Vs. Ram Prasad and Anr. ((1906) 28 All 627), Annamalai Vs. Koothapudayar (AIR 1934 Madras 485), 1935 MLJ 601 and Rajah V. Maheswara Rao Vs. Rajah V. Rajeswara Rao (1967)1 MLJ
175). But the position would be different if the suit has resulted F.A.O.No.335 of 2011 38 in a preliminary decree or other decision affecting the right to seek the same relief on the same cause of action.
51. Gulkandi Lal and Ors. Vs. Manni Lal ((1901) ILR (23) All. 219) was a suit for partition compromised between the plaintiff and the defendant based on a joint petition requesting the Court to strike off the suit. The Court passed orders accordingly. The terms of the compromise was not specifically entered in the decree. The plaintiff brought a second suit for partition of the same property. It was held that it was incumbent on the plaintiff to see that the Court did its duty and recorded a proper order in the suit (with reference to Sec.375 of the Code of 1888) and if the plaintiff has not done that, he must be taken to have withdrawn the suit without permission to file a second suit. The second suit was held to be barred (under Sec.373 of the Old Code).
52. In Radhe Lal and Ors. Vs. Mulchand and Ors.
(AIR 1924 All.905), the previous suit for partition was compromised as the plaintiff did not then desire to press his claim for partition and there was no decision that he was not entitled to claim partition. There it was held that the subsequent suit for partition was not barred. In that case, the trial court had dismissed the suit as not maintainable relying on the decision in F.A.O.No.335 of 2011 39 Gulkandi Lal and Ors. Vs. Manni Lal but, that decision was not followed by the Division Bench in view of the decisions in Nasrat Ullah Vs. Mujib Ullah ((1891) 13 All.309) and T.C.Mukerji Vs. Afzal Beg and Ors. ((1915)37 All.155).
53. The decision in Nasrat Ullah Vs. Mujib Ullah and T.C.Mukerji Vs. Afzal Beg and Ors. are distinguishable on facts. In the former, the compromise between the parties (in a suit for partition) required them to do certain things. They did not do so. Hence they continued to have the same interest as before, in the joint property. In that situation, it was held that the subsequent suit is not barred on account of dismissal of the earlier suit. In T.C.Mukerji Vs. Afzal Beg and Ors., a suit for partition of the year, 1905 was compromised and the defendant agreed to transfer (unlike the present case where there is a transfer of right as per Ext.B2 itself) his right to the plaintiff. Based on that compromise the suit was dismissed. The terms of the compromise was not given effect to. In that situation, it was held that a subsequent suit for partition is not barred.
54. Ext.B2, compromise did not require anything further to be done for fulfillment of the terms of the compromise. Instead, as aforesaid, by Ext.B2, compromise the respondent extinguished his right, title, interest and possession in the suit F.A.O.No.335 of 2011 40 property and conveyed it to the appellant. That compromise was accepted and acted upon as revealed by the subsequent conduct of the appellant in effecting mutation of the whole property in his name, paying revenue for the whole property from the year, 1961 and the conduct of the respondent in not making or asserting any claim over the property. It is of little difference that the vendor of the respondent was only a defendant in O.S.No.420 of 1961 or that the respondent was not impleaded as an eo nominee party in that suit. Among co-owners there is no distinction between plaintiff and defendant in a suit for partition. It was open to the respondent or his vendor to claim partition in O.S.No.420 of 1961 which not only they did not, but, they entered into Ext.B2, compromise with the appellant. The suit - O.S.No.420 of 1961 in which the respondent and his vendor could have sought partition of their one half undivided right was allowed to be dismissed accepting Ext.B2, compromise. The cause of action the respondent or his vendor had to seek partition has merged in the decision in O.S.No.420 of 1961 (a preliminary decree was not required since in the light of Ext.B2, the suit need only be dismissed). Hence the respondent could not have a recurring cause of action and seek partition.
F.A.O.No.335 of 2011 41
55. The substantial questions of law framed are answered as above.
56. In the light of my finding on question Nos.1 to 4, the suit filed by the respondent is found not maintainable.
Resultantly this appeal is allowed as under:
(I) Judgment of the learned Sub Judge, Koyilandy in A.S.No.6 of 2010 is set aside.
(II) Judgment and decree of the learned Munsiff-Magistrate, Payyoli in O.S.No.20 of 2009 are restored.
(III) O.S.No.20 of 2009 of the Court of learned Munsiff-Magistrate, Payyoli will stand dismissed.
(IV) Parties shall suffer their cost
throughout.
THOMAS P.JOSEPH, JUDGE.
Sbna