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Wednesday, January 7, 2015

CIVIL APPEAL NO. 1240 OF 2005 Phool Patti and Anr. ...Appellants Versus Ram Singh (Dead) Through Lrs. & Anr. ...Respondents

                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1240 OF 2005

Phool Patti and Anr.                                ...Appellants
                                   Versus
Ram Singh (Dead) Through Lrs. & Anr.    ...Respondents

                               J U D G M E N T
Madan B. Lokur, J.

1.      On 3rd November, 1980 Ram Singh (nephew of Bhagwana) filed Suit  No.
630 of 1980 in the Court of the Senior  Sub-Judge,  Sonepat  (Haryana).   He
stated in the plaint that 52  kanals  of  land  in  the  revenue  estate  of
Nizampur Majra in district Sonepat was joint Hindu  family  property.  There
was also a residential house situated in the village but  it  is  not  clear
whether the residential house stood on the said land or was  on  a  separate
parcel of land. However, the appeal before us proceeded on  the  basis  that
the residential house is on the 52 kanals of land.
2.     The plaint filed by Ram Singh further stated  that  some  differences
had arisen between the members of the joint Hindu family and as a result  of
a family settlement, the said land was  given  to  him.  Ram  Singh  further
stated that he was in cultivating possession of the  agricultural  land  and
in physical possession of the residential house.
3.     Ram Singh averred that Bhagwana refused to admit  his  (Ram  Singh's)
claim to the agricultural land and  the  residential  house  and  in  effect
sought to negate the family settlement. Accordingly, Ram Singh prayed for  a
declaration that he is the  owner  and  in  cultivating  possession  of  the
agricultural land and in physical possession of the residential house.
4.     On 5th November, 1980 Bhagwana filed his written statement  admitting
the entire claim set up by Ram Singh. It appears that  Bhagwana's  statement
was also recorded subsequently. In view of the  written  statement  as  also
Bhagwana's oral statement, the Senior Sub-Judge, Sonepat  passed  a  consent
decree on 24th November, 1980 and decreed the suit  as  prayed  for  by  Ram
Singh. The result of the decree was that Ram Singh was  declared  the  owner
in possession of 52 kanals of land, that is, the agricultural land  and  the
residential house in the  revenue  estate  of  Nizampur  Majra  in  district
Sonepat.
5.     In view of the consent decree, there was no occasion for  the  Senior
Sub-Judge to decide whether there was or was not any family settlement,  nor
did the occasion arise for him to specifically decide whether the said  land
was self-acquired or ancestral.
6.  However, two conclusions can be drawn quite safely:  (i)  There  was  no
denial of the existence of a family settlement but on the contrary this  was
admitted by Bhagwana; (ii) The family settlement could be with reference  to
both the ancestral property as well as the self-acquired  property  or  only
with reference to the ancestral property.
7.     Bhagwana had two daughters, namely Phool Patti and  Phool  Devi.   He
had no son.  On 11th March,  1982  another  nephew  of  Bhagwana,  that  is,
Shobha Ram along with Phool Patti and Phool Devi filed Suit No. 234 of  1982
before the Senior Sub-Judge, Sonepat.  In that suit Ram Singh was the  first
defendant and Bhagwana was the second defendant.
8.     It was stated in the plaint that Bhagwana is the owner of  52  kanals
of land which was inherited by him from his lineal male ascendant  and  that
the properties are ancestral in his hands.  It  was  averred  that  Bhagwana
could not gift the  agricultural  land  and  residential  house  to  anybody
thereby depriving his legal heirs (Phool Patti  and  Phool  Devi)  of  their
rights in the disputed property.
9.  It was further  averred  in  the  plaint  that  the  decree  dated  24th
November,  1980  was  obtained  collusively  by  Ram  Singh  and  that   the
admissions made by Bhagwana in the suit filed  by  Ram  Singh  were  without
applying his mind.  It was  stated  that  there  was  no  family  settlement
whatsoever and that the decree dated 24th November, 1980 amounted to a  gift
made by Bhagwana in favour of Ram Singh.   This  could  only  be  through  a
written instrument that was duly stamped and  registered.   Since  the  gift
was neither written, nor stamped, nor  registered  it  could  not  be  acted
upon.
10. On the basis of the pleadings, the Trial Court framed  three  issues  as
follows:-
Whether judgment and decree  dated  24.11.1980  is  void,  illegal  and  not
binding upon the rights of the plaintiffs?

Whether any family settlement was made between the parties?

Relief.
11. In support of the  plaint,  Shobha  Ram  (another  nephew  of  Bhagwana)
entered the witness box and stated that there was no family  settlement  and
that Bhagwana was the owner of the ancestral land and  house.   Phool  Patti
and Phool Devi did not enter the witness box at all.
12. On 27th January, 1983 Bhagwana entered the witness box and  stated  that
he "gave" the disputed property to Ram Singh under his  free  will  treating
him as his son.  He also stated that the entire land was not ancestral -  20
kanals were purchased by Bhagwana while 32 kanals were ancestral property.
13. Ram Singh also entered the witness box  and  stated  that  Bhagwana  had
given him his property through the civil suit filed  by  Ram  Singh  against
Bhagwana and that the disputed property was given by  Bhagwana  of  his  own
free will.  Ram Singh also made a mention of some hibba  (gift)  but  it  is
not clear whether the reference was to the gift of the disputed property  or
some other land. However, for the purposes of  the  present  appeal,  it  is
assumed that Ram Singh referred to a hibba of the disputed property  in  his
favour by Bhagwana.
14. The Trial Court gave its decision on 31st May,  1983  and  it  was  held
that the decree dated 24th November, 1980  was  a  collusive  decree  and  a
nullity and therefore illegal and void. In effect, Bhagwana made a  gift  of
the disputed property in favour of Ram Singh  and  that  the  gift  required
compulsory registration under Section  17(1)(a)  of  the  Registration  Act,
1908.  It was also held that there was  no  family  settlement.   The  Trial
Court did not give any finding  whether  the  disputed  property  was  self-
acquired or ancestral.
15. Feeling aggrieved  by  the  decision  of  the  Trial  Judge,  Ram  Singh
preferred Civil Appeal No. 43/13 in the Court  of  the  Additional  District
Judge, Sonepat.  By its judgment and order, the First Appellate  Court  held
that Shobha Ram had no locus standii in the matter at all, since he  had  no
right, title or interest in the disputed property.  As regards the claim  of
Phool Patti and Phool Devi, it was held that they could  not  challenge  the
gift made by Bhagwana in favour of Ram Singh. It was observed that they  did
not even enter the witness box to challenge the decree dated 24th  November,
1980 and that Bhagwana was alive and had supported the judgment and  decree.
As such, the challenge made by Phool Patti  and  Phool  Devi  could  not  be
sustained.  The First Appellate Court further held  that  the  decree  dated
24th November, 1980 was not a collusive decree since Bhagwana had  supported
it.  Accordingly, the appeal filed by Ram Singh was allowed and  the  decree
of the Trial Court dated 31st May, 1983 was set aside.
16. The First Appellate Court noted that  the  learned  counsel  for  Shobha
Ram, Phool Patti and Phool Devi  did  not  challenge  the  transfer  of  the
disputed property but challenged the collusive decree.  It appears  that  in
view of this, the  First  Appellate  Court  did  not  examine  the  question
whether there was any family settlement and whether  the  disputed  property
was self-acquired or ancestral. The second issue framed by the  Trial  Court
was, therefore, not even adverted to by the First Appellate Court.
17. Feeling aggrieved by the setting  aside  of  the  decree  of  the  Trial
Court, Phool Patti and Phool Devi preferred Second Appeal No. 2176  of  1985
in the Punjab & Haryana High Court.   The respondents in the  Second  Appeal
were Ram Singh, Shobha Ram and Bhagwana.
18. The High Court, by  the  impugned  judgment  and  order,  dismissed  the
Second Appeal while holding that the disputed property  admittedly  was  the
self-acquired property of Bhagwana; the decree suffered by Bhagwana on  24th
November, 1980 was of his own free will and was for  the  services  rendered
by Ram Singh in looking after and taking care  of  Bhagwana;  only  Bhagwana
could challenge the decree dated 24th November, 1980 but he did  not  do  so
and finally, that Phool Patti  and  Phool  Devi  had  no  locus  standii  to
challenge the decree dated 24th November, 1980.
19. When this appeal came up for consideration on 21st March, 2009  a  Bench
of two  learned  judges  considered  the  submissions  of  learned  counsel,
particularly with reference to two decisions cited at the  Bar,  namely,  K.
Raghunandan and Ors. v. Ali Hussain Sabir & Ors.[1] and Bhoop Singh  v.  Ram
Singh Major.[2]   The Bench was of the view that there was an  inconsistency
in the decision of this Court in the  two  cases  mentioned  above.  It  was
observed as follows:-
"9.    Since the consent decree dated 24.11.1980 had been held by the  First
Appellate Court to be not collusive, the High Court in our  opinion  rightly
refused to interfere with that finding of fact.

10.    It was then urged by the  learned  counsel  for  the  appellant  that
there was violation of the Section 17 of the Registration Act, 1908.

11.    In this connection, it may be noted that  Section  17(2)(vi)  of  the
Registration Act states that "nothing in clauses (b) and (c) of  sub-section
(1) of Section 17 applies 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".

12.    In our opinion the exception mentioned  in  Section  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.  This  is  the
view taken by this Court in K. Raghunandan & Ors. v.  Ali  Hussain  Sabir  &
Ors.  2008 (9) Scale 215.

13.    However, a different view was taken by this Court in Bhoop  Singh  v.
Ram Singh Major 1995 (5) SCC 709 in which it is stated that:
"....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......."

14.    In our opinion there seems to be inconsistency between the  decisions
of this Court in Bhoop  Singh's  case  (supra)  and  K.  Raghunandan's  case
(supra) in so far as the Registration Act  is  concerned.   Prima  facie  it
seems to us that the decision in Bhoop Singh's case  (supra)  does  not  lay
down the correct law since  Section  17(2)(vi)  on  its  plain  reading  has
nothing to do with any pre-existing right.  All  that  seems  to  have  been
stated therein is that if  a  decree  is  passed  regarding  some  immovable
property which is not a subject-matter of the  suit  then  it  will  require
registration.  As already explained above, if a suit is filed in respect  of
property A but the decree is in respect of immovable property  B,  then  the
decree  so  far  as  it  relates  to  immovable  property  B  will   require
registration.  This seems to be the plain meaning of clause (vi) of  Section
17(2) of the Registration Act.

15.    It is a well settled  principle  of  interpretation  that  the  Court
cannot add words to the statute or change its  language,  particularly  when
on a plain reading the meaning  seems  to  be  clear.   Since  there  is  no
mention of any pre-existing right in the exception in clause  (vi)  we  have
found it difficult to accept the views in Bhoop Singh's case (supra).

16.    It seems that there is inconsistency in the decisions of  this  Court
in Bhoop Singh's case (supra) and K. Raghunandan's case  (supra)  and  since
we are finding it difficult to agree with the  decision  of  this  Court  in
Bhoop Singh's case (supra), the matter should  be  considered  by  a  larger
Bench of this Court."[3]

20. The appeal was then placed before a Bench of  three  learned  judges  of
this Court and by an order dated  24th  July,  2014  it  was  held,  in  the
following words, that there was no inconsistency between the two decisions:
"The learned counsels have submitted that there is no inconsistency  in  the
judgments referred to in the order dated 31st March, 2009.
Upon hearing the learned counsel we  also  do  not  find  any  inconsistency
between the judgments delivered in the cases  of  (i)  Bhoop  Singh  v.  Ram
Singh Major & Ors. [(1995) 5 SCC 709] and (ii)  Raghunandan  &  Ors  v.  Ali
Hussain Sabir & Ors. [(2008) 13 SCC 102].
In view of the afore-stated circumstances, we refer the matter back  to  the
concerned Court so that the appeal can be decided on merits."

21. The appeal was then sent back to a Bench of two judges  for  a  decision
on the appeal on merits.  It is under these circumstances that it  has  come
up for final disposal.
22. On these broad facts, learned counsel for  the  appellants  Phool  Patti
and Phool Devi contended that the decree dated 24th  November,  1980  was  a
collusive decree.  In fact, a false case of a  family  settlement  had  been
made out by Ram  Singh.   In  reality,  Bhagwana  had  gifted  the  disputed
property to Ram  Singh  and  that  required  compulsory  registration  under
Section 17(1)(a) of the  Registration  Act,  1908.  Bhagwana  had  not  only
avoided payment of registration charges but also stamp duty and  had  played
a fraud upon the Trial Court in the first instance.
23. It was submitted that the disputed property was  not  the  self-acquired
property of Bhagwana and being ancestral property,  Phool  Patti  and  Phool
Devi had an interest in the disputed property and would  have  inherited  it
on the death of Bhagwana.
24. It was further submitted by learned counsel that if it is  assumed  that
the decree dated 24th November, 1980 was not a collusive decree and that  no
gift had been made by Bhagwana in favour of Ram Singh, then a right  in  the
disputed property was created for the first time in favour of Ram Singh  and
this required compulsory registration.
25. The sum and substance of the submissions  of  learned  counsel  for  the
appellants is that if the decree dated 24th November, 1980  is  a  collusive
decree, then Bhagwana had, in reality, gifted the disputed property  to  Ram
Singh and the gift was required to be compulsorily registered;  but  if  the
decree is not a collusive decree then an interest had been  created  in  the
disputed property in favour of Ram Singh for the first time by a  decree  of
a court and therefore the transfer of the disputed property was required  to
be compulsorily registered. Either way, according to  learned  counsel,  the
transfer of  the  disputed  property  by  Bhagwana  to  Ram  Singh  required
compulsory registration.
26. The basic premise on which the case of the appellants rests is that  the
consent decree dated 24th November, 1980 was a  collusive  decree.  However,
in the order dated 21st March, 2009 it was specifically held by  this  court
that "Since the consent decree dated 24.11.1980 had been held by  the  First
Appellate Court to be not collusive, the High Court in our  opinion  rightly
refused to interfere with that finding of fact." This conclusion cannot  now
be challenged by the appellants and we too are  bound  by  this  conclusion.
The only doubt that this court had was with regard to what  appeared  to  be
an inconsistency between two decisions of  this  court.  A  Bench  of  three
judges of this court has now held that there  is  no  inconsistency  between
the two decisions. That issue is also no longer open for discussion.
27.  In the welter of conflicting and  sometimes  contradictory  facts,  the
only statement that can be relied upon  is  that  of  Bhagwana  himself  who
stated in the witness box on 27th January, 1983 (in the  second  suit)  that
the entire disputed property was not  ancestral  but  that  20  kanals  were
purchased by him while 32 kanals were ancestral property.
28.  If that be so, then Bhagwana was entitled to gift 20 kanals of land  to
Ram Singh which he  did.  As  regards  the  remaining  32  kanals,  Bhagwana
accepted the existence of a family settlement, and the Trial Court  (in  the
first suit) did accept that there was a family settlement.  It  is  in  this
family settlement that 32 kanals of land, being the  ancestral  property  of
Bhagwana came to the share of Ram Singh. It is true that in the second  suit
it was held that there was no family settlement but that was  on  the  basis
that the decree dated 24th November, 1980 was a collusive decree. But if  it
is held, as indeed it has been held in the  order  dated  21st  March,  2009
that the consent decree was not a collusive  decree,  then  it  must  follow
that the finding that there was no family  settlement  (arrived  at  in  the
second suit) must be held incorrect, and  we  do  so,  particularly  in  the
absence of any contrary finding on this issue by the First  Appellate  Court
or the High Court. Consequently, in  terms  of  the  family  settlement,  32
kanals of land originally belonging to Bhagwana came to  the  share  of  Ram
Singh in the family settlement. This  explains  the  statement  of  Bhagwana
that he "gave" the disputed property  to  Ram  Singh  under  his  free  will
treating him as his son, that is, 20 kanals of his  self  acquired  property
and 32 kanals of his ancestral property that then came to the share  of  Ram
Singh through the family settlement.
29. What follows from this is that 20 kanals of land was gifted by  Bhagwana
to Ram Singh. This  gift  clearly  requires  compulsory  registration  under
Section 17(1)(a) of the Registration Act, 1908 (the Act). Ram Singh's  claim
over 32 kanals of land was acknowledged in the  consent  decree  dated  24th
November, 1980. This did not require  compulsory  registration  in  view  of
Section 17 (2) (vi) of the Act.
30.    Learned counsel for the appellants cited three decisions  to  support
his contention that the consent decree was collusive  and  therefore  of  no
effect. He referred to Nagubai Ammal v. B. Shama Rao,[4] Rup Chand Gupta  v.
Raghuvanshi  Pvt.  Ltd.[5]  and   Ramchandra   G.   Shinde   v.   State   of
Maharashtra.[6] However, in view of the conclusion arrived at by this  court
in its order dated 21st March, 2009  we  are  not  inclined  to  reopen  the
issue, as indeed we cannot. Nor do we disagree with the  finding  so  as  to
refer the issue to a larger Bench.
31. It was contended that Phool Patti  and  Phool  Devi,  the  daughters  of
Bhagwana had the necessary locus standii  to  challenge  the  gift  made  by
Bhagwana to Ram Singh. While  this  may  or  may  not  be  so  (we  are  not
commenting on the issue) the question of a  challenge  to  the  gift  of  20
kanals of land does not arise on the  facts  of  this  case.  There  was  no
pleading to this effect, no issue was framed in  this  regard  in  the  suit
filed by Phool Patti and Phool Devi, nor was any evidence led  to  challenge
the validity of the gift. It is too late in the day  for  them  to  question
the validity of the gift in favour of Ram Singh for the first time  in  this
court without any foundation, factual or otherwise, having been laid  for  a
decision on this issue.
32. The terms of the family settlement  are  not  on  record.  As  mentioned
above, the family settlement could relate to the ancestral as well as  self-
acquired property of Bhagwana or only the  ancestral  property.  It  appears
that it related only to the ancestral property  and  not  the  self-acquired
property (hence the reference to a hibba). The decree relating to 32  kanals
of land  did  not  require  compulsory  registration,  as  mentioned  above.
However,  the  self  acquired  property  of  Bhagwana  that  is  20  kanals,
therefore, in view of the law laid down  in  Bhoop  Singh  the  gift  of  20
kanals of land by Bhagwana in  favour  of  Ram  Singh,  notwithstanding  the
decree  in  the  first  suit,  requires  compulsory  registration  since  it
created, for the first time, right, title or interest in immovable  property
of a value greater than Rs.100/- in favour of Ram Singh.
33. In view of the above  discussion,  the  appeal  is  partly  allowed  and
disposed of in the manner indicated above. No costs.



                  .......................................J
                                     ( Madan B. Lokur )




......................................J
                                     ( C. Nagappan )


New Delhi;
January 06, 2015







-----------------------
[1]  2008 (9) SCALE 215 = (2008) 13 SCC 102
[2]  (1995) 5 SCC 709
[3]  (2009) 13 SCC 22
[4]  1956 SCR 463
[5]  (1964) 7 SCR 760, 763
[6]  (1993) 4 SCC 216, 225

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