Decree passed in suit whereby conferring ownership, based upon pre-existing right, does not require registration under Sec 17 of Registration Act; SC.

Supreme Court of India

Justice Ashok Bhushan & Justice Navin Sinha

The SC on March 19, 2020 {GURCHARAN SINGH & ORS. v. ANGREZ KAUR & ANR.} held that the submission of the plaintiffs-respondents that suit was not based on pre-existing right of the plaintiffs cannot be accepted, which is belied by the categorical pleading in the plaint. It was held that very basis of the applicability of the judgment of Bhoop Singh Vs. Ram Singh Major and Others, (1995) 5 SCC 709 is knocked out and is not attracted in the present case.  

It was held by the SC, in the facts of the present case, it is clear that the Suit No. 556 of 21.09.1994 filed by the appellants against Bhajan Singh relates to the suit property described in plaint and decree was passed only with regard to suit property A to D. It was held that the decree dated 09.01.1995 was, thus, expressly covered by expression “any decree or order of a Court”. It was also 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 any indirect method. Therefore, the SC held that decree and order dated 09.01.1995 did not require registration and were fully covered by Section 17(2)(vi), which contains exclusion from registration as required in Section 17(1). It was held by the SC that the High Court as well as First Appellate Court erred in coming to the conclusion that decree dated 19.01.1995 required registration and due to not registered is null and void. 

Accordingly the SC held that decree dated 09.01.1995 was a valid decree. It was held that the decision of the trial court dismissing the suit for declaration that decree dated 09.01.1995 was null and void, has to be upheld. The SC set aside the judgment of the High Court as well as First Appellate court and restore the decree of trial court. The appeal was allowed accordingly.

In the present case the SC had to consider as to whether the decree dated 09.01.1995 is covered by sub-section(2)(vi) or not.  In the present case, both the First Appellate Court and the High Court have proceeded on the premise that since the decree dated 09.01.1995 first time created right in favour of the defendant, it required registration, on the ratio of a judgment of the SC in Bhoop Singh Vs. Ram Singh Major and Others, (1995) 5 SCC 709. The said finding was set aside by the SC.

EARLIER SUIT DECREE  (WHICH ATTAINED FINALITY)

Earlier, the Suit was filed ( by appellants in present appeal and the defendants before the trial court in suit - which is subject matter of present appeal before the SC) with the pleading qua Will dated 02.09.1986 as well as Family Settlement dated 15.06.1994, which were specifically pleaded in paragraphs 2 and 3 of the plaint are to the following effect:-

“2. That the defendant has executed a valid and legal Will dated 02.09.1986 in favour of the plaintiffs with his free will and consent while he was in a fit disposing mind, which was attested and registered by the Sub-Registrar.

3. That the defendant considering it proper has effected a family settlement on 15.06.1994 vide which the property in suit was allotted to the plaintiffs in equal shares and the defendant has relinquished all his right, title and interest whatsoever in the said property in favour of the plaintiff in the said family settlement.”

In the suit, Bhajan Singh was only defendant, who filed his written statement on 03.12.1994, allegations in paragraphs 2 and 3 of the plaint were admitted by the defendant in his statement in paragraphs 2 and 3, which is to the following effect:-

“2. Para No. 2 of the plaint is admitted to be correct.

3. Para No. 3 of the plaint is admitted to be correct.”

In the written statement, the defendant Bhajan Singh prayed that suit of the plaintiffs be decreed as prayed. 

It was held by the SC that the pleading in the suit and in the written statement clearly leads to the conclusion that earlier suit was filed on the basis of pre-existing right in favour of plaintiffs, which was basis of the suit. Pre-existing right of the plaintiffs was admitted by the defendant and decree was passed therein. Therefore, the decree passed in the said earlier suit was held to be valid one by the SC, and the assail to the said decree by the plaintiff(s) in present suit - subject matter of present appeal- was held to be non sustainable, and accordingly the appeal was allowed by the SC by dismissing the suit as aforesaid of the respondents in appeal.