# KHUSHI RAM & ORS v. NAWAL SINGH & ORS

- **Citation:** [2021] 4 S.C.R. 1019
- **Court:** Supreme Court of India
- **Decided:** 2021-02-22
- **Case number:** Civil Appeal No. 5167 of 2010
- **Bench:** Ashok Bhushan, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/khushi-ram-ors-v-nawal-singh-ors-35051
- **Pages:** 25

## Headnote

Hindu Succession Act, 1956 - s.15 - Succession - Properties
inherited by female Hindus - "Family" - Family settlement - 'J', a
widow inherited share of her late husband in the land in question -
Family settlement - She gave said share to her nephews-respondents
(her brother's sons) - Respondents filed suit against 'J' claiming
decree of declaration as owners in possession thereof - Respondents'
claim accepted by her, consent decree passed in favour of
respondents - Appellants (descendants of J's late husband's brother)
filed suit inter alia for declaring the decree invalid - Dismissed -
First and second appeals were also dismissed - Held: s.15(1)(d)
indicates that heirs of the father of a female are covered in the
heirs who can succeed - Thus, it cannot be held that the respondents
who were J's nephews were strangers and not the members of the
family qua her - Further, she was the absolute owner when she
entered into settlement - All the Courts rightly dismissed the suit of
the appellants, which need no interference - Indian Registration
Act, 1908 - s.17(2)(vi).
Indian Registration Act, 1908 - s.17(1)(b), 17(2)(vi) - Consent
decree passed on the basis of family settlement, if required
registration - Held: Issue in the present case is squarely covered by
the judgment in Mohammade Yusuf & Ors. v. Rajkumar & Ors.
reported as 2020(3) SCALE 146 wherein it was held that since the
decree which was sought to be exhibited was with regard to the
property which was subject matter of suit, hence, was not covered
by exclusionary clause of s.17(2) (vi) and did not require registration
- In the present case also, the consent decree related to the subject
matter of the suit, thus was not required to be registered u/s.17(2)(vi)
- Courts below rightly held that the decree did not require
registration.
[2021] 4 S.C.R. 1019
1019
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
Words & Phrases - "Family" - Concept of - Discussed.
Dismissing the appeal, the Court
HELD : 1.1 There is no dispute that in the earlier Civil
Suit No.317 of 1991 in which consent decree was passed on
19.08.1991, the subject matter of suit was the agricultural land
situated in Village Garhi, Bajidpur. Further the suit was decreed
on the written statement filed by Smt. 'J' (the widow) accepting
the claim of plaintiffs that there was family settlement between
the parties in which the half share in the land was given to the
plaintiffs of Civil Suit No.317 of 1991. [Para 12][1027-E-F]
1.2 In Mohammade Yusuf & Ors. Vs. Rajkumar & Ors.
this Court held that since the decree which was sought to be
exhibited was with regard to the property which was subject matter
of suit, hence, was not covered by exclusionary clause of Section
17(2) (vi) and decree did not require registration. The issue in
the present case is squarely covered by the said judgment. In
view of the fact that the consent decree dated 19.08.1991 relate
to the subject matter of the suit, hence it was not required to be
registered under Section 17(2) (vi). The consent decree dated
19.08.1991 was not registrable and Courts below rightly held that
the decree did not require registration. [Para 20][1036-G-H; 1037A]
Mohammade Yusuf & Ors. v. Rajkumar & Ors. 2020
(3) SCALE 146 - relied on.
2.1 It is necessary to find out what is the concept of family
with regard to which a family settlement could be entered. Every
party taking benefit under a family settlement must be related to
one another in some way and have a possible claim to the property
or a claim or even a semblance of a claim. Term "family" has to
be understood in a wider sense so as to include within its fold not
only close relations or legal heirs but even those persons who
may have some sort of antecedent title, a semblance of a claim or
even if they have a spes successionis. [Paras 22, 23][1037-C-D;
1038-A-B]
Ram Charan Das v. Girjanandini Devi and Ors. [1965]
3 SCR 841; Kale and Ors. v. Deputy Director of
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Consolidation and Ors.,

## Text

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1019
KHUSHI RAM & ORS.
v.
NAWAL SINGH & ORS.
(Civil Appeal No. 5167 of 2010)
FEBRUARY 22, 2021
[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]
Hindu Succession Act, 1956 - s.15 - Succession - Properties
inherited by female Hindus - "Family" - Family settlement - 'J', a
widow inherited share of her late husband in the land in question -
Family settlement - She gave said share to her nephews-respondents
(her brother's sons) - Respondents filed suit against 'J' claiming
decree of declaration as owners in possession thereof - Respondents'
claim accepted by her, consent decree passed in favour of
respondents - Appellants (descendants of J's late husband's brother)
filed suit inter alia for declaring the decree invalid - Dismissed -
First and second appeals were also dismissed - Held: s.15(1)(d)
indicates that heirs of the father of a female are covered in the
heirs who can succeed - Thus, it cannot be held that the respondents
who were J's nephews were strangers and not the members of the
family qua her - Further, she was the absolute owner when she
entered into settlement - All the Courts rightly dismissed the suit of
the appellants, which need no interference - Indian Registration
Act, 1908 - s.17(2)(vi).
Indian Registration Act, 1908 - s.17(1)(b), 17(2)(vi) - Consent
decree passed on the basis of family settlement, if required
registration - Held: Issue in the present case is squarely covered by
the judgment in Mohammade Yusuf & Ors. v. Rajkumar & Ors.
reported as 2020(3) SCALE 146 wherein it was held that since the
decree which was sought to be exhibited was with regard to the
property which was subject matter of suit, hence, was not covered
by exclusionary clause of s.17(2) (vi) and did not require registration
- In the present case also, the consent decree related to the subject
matter of the suit, thus was not required to be registered u/s.17(2)(vi)
- Courts below rightly held that the decree did not require
registration.
[2021] 4 S.C.R. 1019
1019
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
Words & Phrases - "Family" - Concept of - Discussed.
Dismissing the appeal, the Court
HELD : 1.1 There is no dispute that in the earlier Civil
Suit No.317 of 1991 in which consent decree was passed on
19.08.1991, the subject matter of suit was the agricultural land
situated in Village Garhi, Bajidpur. Further the suit was decreed
on the written statement filed by Smt. 'J' (the widow) accepting
the claim of plaintiffs that there was family settlement between
the parties in which the half share in the land was given to the
plaintiffs of Civil Suit No.317 of 1991. [Para 12][1027-E-F]
1.2 In Mohammade Yusuf & Ors. Vs. Rajkumar & Ors.
this Court held that since the decree which was sought to be
exhibited was with regard to the property which was subject matter
of suit, hence, was not covered by exclusionary clause of Section
17(2) (vi) and decree did not require registration. The issue in
the present case is squarely covered by the said judgment. In
view of the fact that the consent decree dated 19.08.1991 relate
to the subject matter of the suit, hence it was not required to be
registered under Section 17(2) (vi). The consent decree dated
19.08.1991 was not registrable and Courts below rightly held that
the decree did not require registration. [Para 20][1036-G-H; 1037A]
Mohammade Yusuf & Ors. v. Rajkumar & Ors. 2020
(3) SCALE 146 - relied on.
2.1 It is necessary to find out what is the concept of family
with regard to which a family settlement could be entered. Every
party taking benefit under a family settlement must be related to
one another in some way and have a possible claim to the property
or a claim or even a semblance of a claim. Term "family" has to
be understood in a wider sense so as to include within its fold not
only close relations or legal heirs but even those persons who
may have some sort of antecedent title, a semblance of a claim or
even if they have a spes successionis. [Paras 22, 23][1037-C-D;
1038-A-B]
Ram Charan Das v. Girjanandini Devi and Ors. [1965]
3 SCR 841; Kale and Ors. v. Deputy Director of
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Consolidation and Ors., (1976) 3 SCC 119 : [1976] 3
SCR 202 - relied on.
2.2 The defendants-respondents were nephews, i.e.,
brother's sons of Smt. 'J'. The Hindu Succession Act, 1956,
Section 15, deals with the general rules of succession in the case
of female Hindus for properties inherited by female Hindus, which
are devolved in according to Sections 15 and 16. A perusal of
Section 15(1)(d) indicates that heirs of the father are covered in
the heirs, who could succeed. When heirs of father of a female
are included as person who can possibly succeed, it cannot be
held that they are strangers and not the members of the family
qua the female. 'Smt. J', who as a widow of 'SS', who had died in
1953, had succeeded to half share in the agricultural land and
she was the absolute owner when she entered into settlement.
No merit in the submission that the defendants-respondents were
strangers to the family. All the Courts have rightly dismissed the
suit of the plaintiffs-appellants, which need no interference. [Paras
26-29][1042-F-G; 1043-B-E]
Mata Deen v. Madan Lal & Ors. Decision of Supreme
Court in Civil Appeal No. 890 of 2008 - held
inapplicable.
K. Raghunandan and Ors. v. Ali Hussain Sabir and Ors.
(2008) 13 SCC 102 : [2008] 8 SCR 657 - relied on.
Bhoop Singh Vs. Ram Singh Major and Ors., (1995) 5
SCC 709 : [1995] 3 Suppl. SCR 466, Som Dev and
Ors. v. Rati Ram and Anr., (2006) 10 SCC 788 : [2006]
5 Suppl. SCR 778 - referred to.
Case Law Reference
[1995] 3 Suppl. SCR 466
referred to
Para 13
[2006] 5 Suppl. SCR 778
referred to
Para 17
[2008] 8 SCR 657
relied on
Para 18
2020(3) SCALE 146
relied on
Para 19
[1965] 3 SCR 841
relied on
Para 22
[1976] 3 SCR 202
relied on
Para 23
KHUSHI RAM & ORS. v. NAWAL SINGH & ORS.
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5167
of 2010.
From the Judgment and Order dated 16.04.2009 of the High Court
of Punjab & Haryana at Chandigarh in RSA No. 750 of 2002.
Manoj Swarup, Sr. Adv., Ranbir Singh Yadav, Prateek Yadav,
Mrs. Pratima Yadav, Rohit Kumar Singh, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This appeal has been filed by the plaintiffs of Civil Suit challenging
the judgment dated 16.04.2009 of High Court of Punjab & Haryana
dismissing the second appeal filed by the appellant.
 2. The brief facts of the case as emerged from the pleadings of
the parties are:
2.1
One Badlu, who was the tenure-holder of agricultural land
situate in Village Garhi Bajidpur, Tehsil and District Gurgaon,
had two sons Bali Ram and Sher Singh. Sher Singh died in
the year 1953 issueless leaving his widow Smt. Jagno.
2.2
Plaintiffs-appellants are descendents of Bali Ram. After
death of Sher Singh, his widow inherited share of her late
husband, i.e., the half of the agricultural property owned by
Badlu. A Civil Suit No.317 of 1991 was filed by Nawal
Singh and two others against Smt. Jagno in the Court of
Sub-Judge, Gurgaon claiming decree of declaration as
owners in possession of the agricultural land mentioned in
the suit to the extent of half share situate in Village Garhi
Bajidpur. The plaintiffs claim was that Smt. Jagno, who
was sharer of the half share, has in a family settlement
settled the land in favour of the plaintiffs, who were the
brother's sons of Smt. Jagno.
2.3
Smt. Jagno filed a written statement in the suit admitting
the claim of the plaintiffs. Smt. Jagno also made a statement
in the suit accepting the claim of plaintiffs, the trial court
vide its judgment and decree dated 19.08.1991 passed the
consent decree in favour of the plaintiffs declaring the
plaintiffs owners in possession of the half share in the land.
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2.4
The plaintiffs, who were descendents of brother of husband
of Smt. Jagno filed a Civil Suit No.79 of 1991 in the Court
of Senior Sub-Judge Gurgaon praying for declaration that
the decree passed in Civil Suit No.317 of 1991 dated
19.08.1991 is illegal, invalid and without legal necessity. The
plaintiffs also claimed decree of declaration in their favour
declaring them owners in possession of land in question. In
Suit No.79 of 1991, a joint written statement was filed by
the defendants. Smt. Jagno was also defendant No.4 in the
civil Suit No.79 of 1991. The defendants supported the
decree dated 19.08.1991. The defendants No.1 to 3 claimed
land by family settlement out of love and affection by the
defendant No.4, which family settlement was duly affirmed
by Civil Court decree dated 19.08.1991.
2.5
The trial court framed nine issues. Issue No. 5 being
"Whether the decree dated 19.08.1991 passed in civil suit
no.317/91 titled Nawal Singh Etc. Vs. Smt. Jagno passed
by Sh. K.B. Aggarwal SJIC, Gurgaon is illegal, invalid
without jurisdiction and against custom, without legal
necessity and consideration and a result of fraud and undue
influence and is liable to be set aside?
2.6
Issue Nos. 2 to 5 were answered in favour of defendants.
The trial court also rejected the argument of the plaintiffs
that in absence of registration of decree, no right or title
would pass in favour of the defendants. Trial court held
that registration is required when fresh rights are created
for the first time by virtue of decree itself. It was held that
in the case in hand, defendants were having pre-existing
right in the suit property under as in a family settlement
defendant No.4 acknowledged them as owner and
surrendered the possession of the suit property in their favour
at the time of family settlement and the decree dated
19.08.1991 merely affirms their pre-existing rights and
hence, does not require registration.
2.7
The plaintiffs aggrieved by the judgment filed first appeal
before the learned District Judge, which too was dismissed.
The First Appellate Court held that under Section 14(1) of
the Indian Succession Act, a Hindu female become full owner
KHUSHI RAM & ORS. v. NAWAL SINGH & ORS.
[ASHOK BHUSHAN, J.]
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
of the property, which she acquires before the
commencement of the Act and not as a limited owner. The
First Appellate Court also held that defendants being near
relations of defendant No.4, they cannot be said to be
strangers to her. First Appellate Court also held that decree
did not require registration. The findings of the trial court
were affirmed by the First Appellate Court dismissing the
appeal. Aggrieved against the judgment of the First
Appellate Court, the plaintiffs filed R.S.A. No.750 of 2002.
Second appeal was admitted on following question of law:-
"Whether in the absence of any pre-existing right with
the defendant- respondents 1 to 3, a decree ( Exhibit
P.2) suffered by Jagno (who is father's sister of
defendant- respondent) required registration under
Section 17(1) of the Indian Registration Act, 1908?"
2.8
The High Court answered the above question of law against
the plaintiffs and in favour of the defendants-respondents.
The High Court held that judgment and the decree rendered
in Civil Suit No.317 of 1991 dated 19.08.1991 merely
recognise the existing right which was created by the oral
family settlement. High Court further held that apart from
relationship of Smt. Jagno with defendants-respondents 1
to 3, she has developed close affinity, love and affection for
defendant respondent Nos.1 to 3 as per the findings recorded
by the learned Courts below. The High Court dismissed the
second appeal, aggrieved against which judgment, this appeal
has been filed.
3. We have heard Shri Ranbir Singh Yadav, learned counsel for
the appellant and Shri Manoj Swarup, learned senior counsel for the
respondent.
4. Learned counsel for the appellants, Shri Yadav submits that no
family settlement could have been entered by Smt. Jagno in favour of
defendant Nos.1 to 3, they being strangers to the family. A Hindu widow
cannot constitute a Joint Hindu Family with the descendants of her brother,
i.e., her parental side. Family settlement can take place only between
members, who have antecedent title or pre-existing right in the property
proposed to be settled. Smt. Jagno could have transferred her absolute
share in favour of the respondents or to any stranger only in accordance
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with law by complying with the provisions of the Transfer of Property
Act, 1882, the Indian Registration Act, 1908 and the Indian Stamp Act,
1899. Learned counsel further contends that registration of compromise
decree was compulsory by virtue of Section 17 of the Indian Registration
Act and the decree dated 19.08.1991 having not been registered, it did
not confer any valid title to the defendant Nos.1 to 3. All the Courts
below committed error in upholding the decree dated 19.08.1991 whereas
the decree being an unregistered decree was liable to be ignored and
declared in operative.
5. Shri Manoj Swarup, learned senior counsel for the respondents
refuting the submissions of the learned counsel for the appellant contends
that defendant Nos.1 to 3 had pre-existing right in the suit property,
which was clear from the pleadings of Civil Suit No.317 of 1991. In the
above suit, it was categorically pleaded that family settlement/
arrangement took place about two years back and since then plaintiffs
are owners in possession of land and defendant No.4 had relinquished
all her rights therein.
6. It is submitted that decree passed in the Civil Suit dated
19.08.1991 only declared the existing rights of the defendant Nos.1 to 3,
which was based on the family settlement. It is submitted that the
defendant Nos.1 to 3 being brother's sons of Smt. Jagno, they were not
strangers to Smt. Jagno and family settlement could have been very
well entered by Smt. Jagno with them. It is submitted that the expression
"family" for the purpose of family settlement is not to be given any
narrow meaning; it should be given a wide meaning to cover the members,
who are by any means related. It is further submitted that the decree
dated 19.08.1991 did not require any registration under Section 17 of the
Indian Registration Act, 1908. The decree was passed with regard to
subject matter of the suit property, it was exempted from registration by
virtue of Section 17(2)(vi) of the Indian Registration Act, 1908. Shri
Swarup further contends that the family settlement could have been
made out of love and affection with regard to which there was ample
pleading in the Civil Suit No.317 of 1991 and out of love and affection
defendant No.4, Smt. Jagno could have very well settled the properties
in favour of defendant Nos.1 to 3, her nephews being brother's sons.
7. Learned counsel for the parties have relied on judgments of
this Court for their respective submissions, which shall be referred to
while considering the submissions in detail.
KHUSHI RAM & ORS. v. NAWAL SINGH & ORS.
[ASHOK BHUSHAN, J.]
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
8. The Civil Suit No.79 of 1991, which gives rise to this appeal
was a suit where following reliefs were claimed by plaintiffs-appellants:-
"10. That the plaintiffs, therefore, pray that a decree for declaration
to the effect that the decree in question passed in Civil Suit No.317
of 1991 dated 19.8.1991 is illegal, invalid, without legal necessity
and consideration on the grounds stated above in the plaint, and
the same does not convey any title in favour of the defendants
No.1 to 3 and does not effect any reversionary rights of the plaintiffs
and the plaintiffs are owners in possession of the land in question,
fully detailed and described in para no.3 of the plaint above, with
consequential relief of permanent injunction restraining the
defendants further alienating the land in question to anyone else,
may kindly be passed in favour of the plaintiffs and against the
defendants with costs of this suit.
Any other relief which this Hon'ble Court may deems fit and
proper may also be granted to the plaintiffs."
9. There is no dispute between the parties that Shri Sher Singh,
husband of Smt. Jagno had half share in the agricultural land situate in
village Garhi Bajidpur, which was suit property. Sher Singh died in 1953.
Smt. Jagno after enforcement of the Hindu Succession Act, 1956 by
virtue of Section 14 became the absolute owner of the half share of the
suit property. The bone of contention between the parties centres round
the decree dated 19.08.1991 passed by the Sub-Judge in Civil Suit No.317
of 1991 filed by defendant Nos.1 to 3 against Smt. Jagno seeking
declaration that they are owners in possession of the suit land. In Civil
Suit No.317 of 1991, following was pleaded in paragraphs 2 and 3:-
"2. That the parties are closely related to each other, the plaintiffs
are nephews of the deft and constituted a Joint Hindu Family.
The deft Smt. Jagno Devi is the daughter of Sh. Shib Lal, the
grand father of the plaintiffs.
3. That the defendant is living with the plaintiffs at Village
Chakerpur and the plaintiffs are looking after her in her old age
and the deft has no issue. The deft is very happy with the services
of the plaintiff rendered to her and out of love and affection, the
deft had allotted the above mentioned land to the plaintiffs in equal
share in a family settlement /arrangement, which took place about
2 years back and since then the plaintiffs are owners in possession
of the said land and the deft had relinquished all rights therein."
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10. In the aforesaid suit, written statement was filed by Smt. Jagno
admitting the claim of the defendants. The trial court in its decree dated
19.08.1991 held following in paragraph 2:-
"2. The defendant appeared and filed written statement admitting
in toto the claim of the plaintiffs. Statements of the parties were
also recorded. In view of the written statement and statements of
parties, a consent decree in favour of the plaintiffs and against
the defendant is passed for declaration as prayed for, leaving the
parties to bear their own costs. Decree sheet be prepared and file
be consigned to the record room."
11. In this appeal, following two questions arise for consideration:-
(1) Whether the decree dated 19.08.1991 passed in Civil Suit
No.317 of 1991 requires registration under Section 17 of the
Indian Registration Act, 1908?; and
(2) Whether the defendant Nos.1 to 3 were strangers to
defendant No.4 so as to disable her to enter into any family
arrangement with defendant Nos.1 to 3?
Question No.(1)
12. There is no dispute that in the earlier Civil Suit No.317 of 1991
in which consent decree was passed on 19.08.1991, the subject matter
of suit was the agricultural land situated in Village Garhi, Bajidpur. Further
the suit was decreed on the written statement filed by Smt. Jagno
accepting the claim of plaintiffs that there was family settlement between
the parties in which the half share in the land was given to the plaintiffs
of Civil Suit No.317 of 1991. The question is as to whether the decree
passed on 19.08.1991 required registration under Section 17 of the Indian
Registration Act, 1908. Sections 17(1) and 17(2)(vi), which are relevant
for the present case, are as follows:-
"17. Documents of which registration is compulsory.-(l)
The following documents shall be registered, if the property to
which they relate is situate in a district in which, and if they have
been executed on or after the date on which, Act No. XVI of
1864, or the Indian Registration Act, 1866, or the Indian
Registration Act, 1871, or the Indian Registration Act, 1877, or
this Act came or comes into force, namely:-
KHUSHI RAM & ORS. v. NAWAL SINGH & ORS.
[ASHOK BHUSHAN, J.]
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[2021] 4 S.C.R.
(a) instruments of gift of immovable property;
(b) other 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 one hundred rupees and upwards, to or in
immovable property;
(c) non-testamentary instruments which acknowledge the receipt
or payment of any consideration on account of the creation,
declaration, assignment, limitation or extinction of any such right,
title or interest; and
(d) leases of immovable property from year to year, or for any
term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any
decree or order of a Court or any award when such decree or
order or award purports or operates 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 property:]
Provided that theState Government may, by order published
in the Official Gazette, exempt from the operation of this subsection any lease executed in any district, or part of a district, the
terms granted by which do not exceed five years and the annual
rents reserved by which do not exceed fifty rupees.
XXXXXXXXXXXXXXXXXX
(2) Nothing in clauses (b) and (c) of sub-section (l) applies to-
(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; or
XXXXXXXXXXXXXXXX"
13. The submission of the learned counsel for the appellant is that
there was no existing right in the plaintiffs of Civil Suit No.317 of 1991,
hence the decree dated 19.08.1991 required registration under Section
17(1)(b) since decree created right in favour of the plaintiffs. In support
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of his submission, he has placed reliance on judgment of this Court in
Bhoop Singh Vs. Ram Singh Major and Ors., (1995) 5 SCC 709
where this Court held that decree or order including compromise decree
granting new right, title or interest in praesenti in immovable property of
value of Rs.100 or above is compulsorily registrable. In paragraphs 17
and 18 of the judgment, following was laid down:-
"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 registrable.
18. The legal position qua clause (vi) can, on the basis of the
aforesaid discussion, be summarised as below:
(1) Compromise decree if bona fide, 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.
(2) If the compromise decree were to create for the first
time right, title or interest in immovable property of the value
of Rs 100 or upwards in favour of any party to the suit the
decree or order would require registration.
(3) If the decree were not to attract any of the clauses of subsection (1) of Section 17, as was the position in the aforesaid
Privy Council and this Court's cases, it is apparent that the
decree would not require registration.
(4) If the decree were not to embody the terms of compromise,
as was the position in Lahore case, benefit from the terms of
compromise cannot be derived, even if a suit were to be
disposed of because of the compromise in question.
(5) If the property dealt with by the decree be not the "subjectmatter of the suit or proceeding", clause (vi) of sub-section
(2) would not operate, because of the amendment of this clause
KHUSHI RAM & ORS. v. NAWAL SINGH & ORS.
[ASHOK BHUSHAN, J.]
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by Act 21 of 1929, which has its origin in the aforesaid decision
of the Privy Council, according to which the original clause
would have been attracted, even if it were to encompass
property not litigated."
14. The decree passed in Bhoop Singh's case (supra) has been
quoted in paragraph 2 of the judgment, which clearly proved that
declaration was granted that plaintiff will be the owner in possession
from today. In the above case, the suit was decreed on the basis of
compromise though the decree is on the ground that defendant admitted
the claim of the plaintiff in written statement.
15. Learned counsel for the appellant has further placed reliance
on another judgment of this Court in Civil Appeal No.890 of 2008 -
Mata Deen Vs. Madan Lal & Ors., in which case also, decree was
passed on the ground of family settlement in favour of the plaintiffsdefendants. The decree passed was required to be compulsorily registered
under Section 17(2)(vi) of the Registration Act, which having not been
done, the judgment was set aside and the case was remanded for the
consideration of the question of law. The observation of this Court in the
above judgment is to the following effect:-
".............................The second Appellate Court was
required to examine this aspect of the case. As it is a substantial
question of law which fell for consideration under Section 100
CPC, as could be seen, the impugned judgment passed by the
High Court is simply concurred with the finding of fact concurred
with by the first Appellate Court in its judgment in exercise of its
appellate jurisdiction and it had not adverted to the substantial
question of law with respect to compulsory registration of a decree
in favour of the first defendant and the consequences for non
registration of a decree under Section 17(2)(vi) of the Act and the
law laid down by this Court in the case of Bhoop Singh vs. Ram
Singh Major & Ors., (1995) 5 SCC 709 is not applied to the case
on hand, which rendered the impugned judgment and decree bad
in law.
In view of the reasons stated supra, we set aside the
impugned judgment and decree passed by the High Court and
remand the matter to it with a request to reconsider the matter
after framing the substantial questions of law that would arise for
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consideration and hear the parties and pass appropriate orders in
accordance with law. Since the matter is of 1995 we request the
High Court to dispose of the matter as expeditiously as possible
but not later than six months from the date of receipt of a copy of
this Order.
The appeal is disposed of accordingly."
16. From the above judgment, it is not clear as to whether the
decree, which was passed on the basis of family settlement, relate to the
suit property or the property which was covered in the decree was not
part of the suit land. The above fact is crucial and it is yet to be determined
in view of the remand by this Court, hence, the said judgment cannot be
said to be lend any support to the learned counsel for the appellant.
17. Shri Manoj Swarup, learned counsel for the respondents has
on the other hand placed reliance on judgment of Som Dev and Ors.
Vs. Rati Ram and Anr., (2006) 10 SCC 788. The above was a case
where decree was based on an admission recognising pre-existing rights
under family arrangement. This court held that in the above case, the
decree did not require registration under Section 17(1)(b).
18. This Court in a subsequent judgment in K. Raghunandan
and Ors. Vs. Ali Hussain Sabir and Ors., (2008) 13 SCC 102,
Court had occasion to interpret Section 17 and laid down following in
paragraphs 23, 24, 25 and 28:-
"23. Sub-section (2) of Section 17 of the Act, however, carves
out an exception therefrom stating that nothing in clauses (b) and
(c) of sub-section (1) of Section 17 would inter alia apply 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". Even if the passage was not the subject-matter of
the suit, indisputably, in terms of the Code of Civil Procedure
(Amendment) Act, 1976, a compromise decree was permissible.
24. A plain reading of the said provision clearly shows that a
property which is not the subject-matter of the suit or a proceeding
would come within the purview of exception contained in clause
(vi) of sub-section (2) of Section 17 of the Act. If a compromise
is entered into in respect of an immovable property, comprising
other than that which was the subject-matter of the suit or the
KHUSHI RAM & ORS. v. NAWAL SINGH & ORS.
[ASHOK BHUSHAN, J.]
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proceeding, the same would require registration. The said provision
was inserted by Act 21 of 1929.
25. The Code of Civil Procedure (Amendment) Act, 1976 does
not and cannot override the provisions of the Act. The purported
passage being not the subject-matter of the suit, if sought to be
transferred by the respondent-defendants in favour of the appellantplaintiffs or if by reason thereof they have relinquished their own
rights and recognised the rights of the appellant-plaintiffs,
registration thereof was imperative. The first appellate court held
so. The High Court also accepted the said findings.
28. Bhoop Singh [(1995) 5 SCC 709], inter alia, lays down: (SCC
p. 715, para 18)
"18. (1) Compromise decree if bona fide, 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.
(2) If the compromise decree were to create for the first
time right, title or interest in immovable property of the value
of Rs 100 or upwards in favour of any party to the suit the
decree or order would require registration."
(emphasis in original)
Thus, indisputably, if the consent terms create a right for the first
time as contradistinguished from recognition of a right, registration
thereof would be required, if the value of the property is Rs 100
and upwards."
19. In the above judgment, the case of Bhoop Singh was also
considered and distinguished. In a recent judgment delivered by Two
Judge Bench of this Court of which one of us was also member (Ashok
Bhushan, J.), the judgment of Bhoop Singh and Som Dev came to be
considered in Mohammade Yusuf & Ors. Vs. Rajkumar & Ors.,
2020(3) SCALE 146. The question arose in the above case was also
non-registration of a decree on the basis of which the Court has refused
to admit the decree in evidence in a subsequent suit. This Court had
occasion to interpret Section 17 and had also considered the Bhoop
Singh and Som Dev's case. In paragraphs 6, 8, 13 and 14 of the judgment,
which are relevant are as follows:-
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"6. A compromise decree passed by a Court would ordinarily be
covered by Section 17(1)(b) but sub-section (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 subjectmatter 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). 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 4-10-1985 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 4-10-1985 was not required to be
registered on plain reading of Section 17(2)(vi). The High Court
referred to the judgment of this Court in Bhoop Singh Vs. Ram
Singh Major and Others, (1995) 5 SCC 709, in which case, the
provision of Section 17(2)(vi) of the Registration Act came for
consideration. This Court in the above case while considering clause
(vi) laid down the following in paras 16, 17 and 18:
"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, embedded in the decree or order.
KHUSHI RAM & ORS. v. NAWAL SINGH & ORS.
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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 registrable.
18. The legal position qua clause (vi) can, on the basis of the
aforesaid discussion, be summarised as below:
(1) Compromise decree if bona fide, 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.
(2) If the compromise decree were to create for the first
time right, title or interest in immovable property of the value
of Rs 100 or upwards in favour of any party to the suit the
decree or order would require registration.
(3) If the decree were not to attract any of the clauses of
sub-section (1) of Section 17, as was the position in the
aforesaid Privy Council and this Court's cases, it is apparent
that the decree would not require registration.
(4) If the decree were not to embody the terms of
compromise, as was the position in Lahore case, benefit
from the terms of compromise cannot be derived, even if a
suit were to be disposed of because of the compromise in
question.
(5) If the property dealt with by the decree be not the
"subject-matter of the suit or proceeding", clause (vi) of
sub-section (2) would not operate, because of the
amendment of this clause by Act 21 of 1929, which has its
origin in the aforesaid decision of the Privy Council,
according to which the original clause would have been
attracted, even if it were to encompass property not
litigated."
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8. Following the above judgment of Bhoop Singh (supra), the High
Court held that since the compromise decree dated 4-10-1985 did
not declare any pre-existing right of the plaintiff, hence it requires
registration. The High Court relied on the judgment of Gurdwara
Sahib vs. Gram Panchayat Village Sirthala and another (supra)
and made following observations in paras 11, 12 and 13:
"11. In the present case, in the earlier suit CS No. 250-A/1984
the petitioner had claimed declaration of title on the plea of
adverse possession and the compromise decree was passed in
the suit. The very fact that the suit was based upon the plea of
adverse possession reflects that the petitioner had no preexisting title in the suit property. Till the suit was decreed, the
petitioner was a mere encroacher, at the most denying the title
of lawful owner.
12. The Supreme Court in the matter of Gurdwara
Sahib v. Gram Panchayat Village Sirthala reported in (2014)
1 SCC 669 has settled that declaratory decree based on plea
of adverse possession cannot be claimed and adverse
possession can be used only as shield in defence by the
defendant. It has been held that:
"7. In the Second Appeal, the relief of ownership by adverse
possession is again denied holding that such a suit is not
maintainable. There cannot be any quarrel to this extent
the judgments of the courts below are correct and without
any blemish. Even if the plaintiff is found to be in adverse
possession, it cannot seek a declaration to the effect that
such adverse possession has matured into ownership. Only
if proceedings filed against the appellant and appellant is
arrayed as the defendant that it can use this adverse
possession as a shield/defence."
13. The plea of the petitioner based upon Section 27 of the
Limitation Act is found to be devoid of any merit since it relates
to the extinction of the right of the lawful owner after expiry of
the Limitation Act, but in view of the judgment of the Supreme
Court in Gurdwara Sahib (supra), the petitioner cannot claim
himself to be the owner automatically after the expiry of the
said limitation."
KHUSHI RAM & ORS. v. NAWAL SINGH & ORS.
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13. This Court in Som Dev v. Rati Ram and Another, (2006) 10
SCC 788 while explaining Section 17(2)(vi) and Sections 17(1)(b)
and (c) held that all decrees 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 para 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) 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...................."
14. In the facts of the present case, the decree dated 4-10-1985
was with regard to the property, which was the subject-matter of
the suit, hence not covered by exclusionary clause of Section
17(2)(vi) and the 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 clauses (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 4-10-1985 did not require registration
and the learned Civil Judge as well as the High Court erred in
holding otherwise. We, thus, set aside the order of the Civil Judge
dated 7-1-2015 as well as the judgment of the High Court dated
13-2-2017. The compromise decree dated 4-10-1985 is directed
to be exhibited by the trial court. The appeal is allowed
accordingly."
20. This Court held that since the decree which was sought to be
exhibited was with regard to the property which was subject matter of
suit, hence, was not covered by exclusionary clause of Section 17(2)(vi)
and decree did not require registration. The issue in the present case is
squarely covered by the above judgment.