The consent decree relating to the subject matter of the suit is not required to be registered under Section 17(2) (vi) and was covered by exclusionary clause of Indian Registration Act, 1908

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KHUSHI RAM & ORS.

VERSUS

NAWAL SINGH & ORS.

Civil Appeal No. 5167 OF 2010, Decided on 22nd February, 2021

Judges: Ashok Bhushan & R. Subhash Reddy JJ.

FACTS:

The facts which led to the proceedings before the Supreme Court in brief are that one ‘B’ who was the original tenure holder had two sons ‘R’ and ‘S’, out of the two ‘S’ died issueless leaving behind his widow ‘J’, therefore, after the death of ‘S’, ‘J’ became the owner of half of the tenure holding that ‘S’ had inherited from ‘B’.

Thereafter, the nephew’s of ‘J’ filed a suit claiming a decree of declaration that they be declared as the owner of the half share of ‘J’ on the basis of some family settlement entered between them. The said suit was decreed in favour of the nephew’s (“N”) on 19.01.1981, and in the same a statement (a W.S. was also filed) was made by ‘J’ accepting the claim of ‘N’ and based on this a consent decree was passed.

The plaintiffs i.e., the descendants of ‘R’ filed a civil suit for declaration that the aforesaid consent decree be declared as illegal, invalid and without legal necessity and they also claimed a further, declaration in their favour that they be declared as owner of the half share of ‘J’.

In the plaintiffs’ suit before the trial court an argument was raised on behalf of the plaintiffs that the, earlier decree passed in favour of ‘N’ was invalid in absence of registration of the same.

The aforesaid argument was negated by the trial court by holding that registration is required when fresh rights are created for the first time by virtue of decree itself. It was further held that in the case in hand, defendants were having pre-existing right in the suit property, since in a family settlement ‘J’ had already 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 affirmed their pre-existing rights and hence, did not require registration.

The plaintiffs aggrieved by the judgment filed first appeal, 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 of the property, which she acquires before the commencement of the Act and not as a limited owner. First Appellate Court also held that decree did not require registration. The findings of the trial court were affirmed by the First Appellate Court and the appeal dismissed. Against, the said dismissal a Second Appeal was preferred before the High Court which was also dismissed.

It is this dismissal against which the plaintiffs moved before the Supreme Court wherein, the Supreme Court also dismissed the same.

ISSUE:

Whether the decree passed on 19.08.1991 required registration under Section 17 of the Indian Registration Act, 1908?

 

HELD:

The Supreme Court concluded that in view of the fact that the consent decree dated 19.08.1991 relates to the subject matter of the suit, hence it was not required to be registered under Section 17(2) (vi) and was covered by exclusionary clause. Thus, the Court answered the issue in the negative and held that the consent decree dated 19.08.1991 was not registrable and Courts below rightly held that the said decree did not require registration.

 

ISSUE:

Whether the consent decree which was passed in favour of ‘N’ who did not belong to the family of the plaintiffs-appellants and, since, they belong to different family and no family arrangement could have been entered between ‘J’ and ‘N’?


HELD:

While answering the aforesaid issue the Supreme Court observed that it was an admitted position that the defendants-respondents (‘N’) were nephews, i.e., brother’s sons of ‘J’. Thus, the Supreme Court went on to consider the provisions of the Hindu Succession Act, 1956, which deal 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.

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