TMI Blog2006 (9) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... ome a co-owner with the assignor of the contesting defendants, the plaintiff was entitled to enforce a right of pre-emption and recover possession of the property from the assignee of the other co-owner. The contesting defendants resisted the suit. The contention germane to this appeal that was raised by the contesting defendants was that a right was created in the present plaintiff by the decree in Civil Suit No. 398 of 1980 which was one based on a compromise and since the decree purported to create a right in the plaintiff in a property in which he had no pre-existing right, the compromise decree required registration in terms of Section 17(1) of the Registration Act and the decree not having been registered, the plaintiff was not entitled to enforce the alleged right of pre-emption as against the contesting defendants or their assignor, the other co-owner. 4. The trial court held that the decree in Civil Suit No. 398 of 1980 was enforceable even without registration as it was not hit by Section 17(1) of the Registration Act; that the said decree had recognised the right claimed by the plaintiff and in the circumstances the plaintiff was entitled to a decree for possession fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property, the transfer must be effected by a registered instrument singed by or on behalf of the donor and attested by at least two witnesses. One other aspect to be noted is the introduction of Sub-section (1A) of Section 17 of the Registration Act made prospective from the date of coming into force of the Registration and Other Related Laws (Amendment) Act, 2001 insisting that documents containing contracts to transfer for consideration any immovable property for the purpose of Section 53A of the Transfer of Property Act, shall be registered if they have been created after the commencement of Sub-section (1A) of Section 17 of the Transfer of Property Act. 6. The decree in Civil Suit No. 398 of 1980 was really a decree on admission. It was not a compromise decree. In the plaint in that suit the present plaintiff and his brother had asserted that Sheo Ram the son of the sister of the assignor of the contesting defendants had relinquished his half share in the properties in their favour and on the death of Phusa Ram the grandfather of Sheo Ram, the plaintiffs therein had become the absolute owners of that half share and the defendant Sheo Ram did not have any right in the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty from year to year or for a term exceeding one year and instruments transferring or assigning any decree or order of court or any award where such decree or order or award operates to create, declare, assign, limit or extinguish any right, title or interest in immovable property, the value of which exceeds ₹ 100/-. Sub-section (1A) provides that agreements for sale to be used to claim protection of Section 53A of the Transfer of Property Act entered into after 24.09.2001 require registration. Sub-section (2) excludes from the operation of Clauses (b) and (c) of Sub-section (1) of Section 17, the various transactions described therein under various clauses. We are concerned with Clause (vi) therein. We shall set down that provision for convenience: 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 which is subject matter of the suit or proceeding. (emphasis supplied) It may be noted that going by Clause (vi), a decree or order of court need not be registered on the basis that it comes within the purview of Section 17(1)(b) or 17(1)(c) of the Act as an instrument purport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in evidence for want of registration. Provision was made for the registration of such a decree by Section 42 of Act XX of 1886, but that section was not re-enacted in Act VIII of 1871. If, therefore, it required registration under the Act, it could only be as an 'executed instrument' under Section 17, a description which is scarcely applicable to a decree. Moreover, it is to be remarked that Section 32 deals only with the presentation of a 'copy' of a decree, the optional registration of which is expressly provided for by Section 18 of the Act. Upon a true construction of the Act of 1871, read with reference to Act XX of 1866, such a decree, we are strongly inclined to think, did not fall within Section 17. However, Act III of 1877, which is now in force, expressly excludes such decrees, whether passed before or after the Act, from the operation of compulsory registration, and the decree is, therefore, now admissible in evidence. In Pranal Anni v. Lakshmi Anni and Ors. I.L.R. 22 MAD 508 the Privy Council held: The razinamah was not registered in accordance with the Act of 1877; but the objection founded upon its non-registration does not, in their Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes the consideration for the compromise, such a compromise decree would be considered to be a compromise relating to the subject matter of the suit and such a decree would also not require registration in view of Clause (vi) of Section 17(2) of the Registration Act. Since we are not concerned with that aspect here, it is not necessary to further deal with that question. Suffice it to say that on a plain reading of Clause (vi) of Section 17(2) all decrees and orders of Court including a compromise decree subject to the exception as regards properties that are outside the subject matter of the suit, do not require registration on the ground that they are hit by Section 17(1)(b) and (c) of the Act. But at the same time, there is no exemption or exclusion, in respect of the Clauses (a), (d) and (e) of Section 17(1) so that if a decree brings about a gift of immovable property, or lease of immovable property from year to year or for a term exceeding one year or reserving an early rent or a transfer of a decree or order of a Court or any award creating, declaring, assigning, limiting or extinguishing rights to and in immovable property, that requires to be registered. 10. After the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that a decree was given to plaintiff and his brother. It was pleaded that the relinquishment or surrender by Sheo Ram was by way of a family arrangement in view of the close relationship enjoyed by the present plaintiff and his brother, the uncles (not direct) on the one hand and Sheo Ram on the other, who was actually their nephew one step removed, but who was treated by them as their own real nephew. There was no case that his share was gifted by Sheo Ram in favour of the present plaintiff and his brother so as to attract Clause (a) of Section 17(1) of the Registration Act. It was really a case of Clause (b) of Section 17(1) being attracted, if at all. All the courts have found that the relinquishment was part of a family settlement and hence its validity cannot be questioned on the ground of want of registration in the light of the decisions of this Court. Apart from that strand of reasoning, it appears to us that the decree in Civil Suit No. 398 of 1980 did not create, declare, assign, limit or extinguish any right in the suit property. It merely recognised the right put forward by the plaintiffs in that suit based on an earlier family arrangement or relinquishment by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e attracted, and even a compromise decree comes under the exception, unless, of course, it takes in any immovable property that is not the subject matter of the suit. 13. In Mangan Lal Deoshi v. Mohammad Moinul Haque and Ors. MANU/SC/0036/1950MANU/SC/0036/1950 : [1950]1SCR833 , this Court considered a case where the effect of a decree was to create a perpetual under-lease and considered the case whether under such circumstances that decree required registration in the context of Section 17(1)(b) of the Act. This Court stated: What the compromise really did was, as stated already, to bring the Singhs and the Deoshis into a new legal relationship as under- lessor and under-lessee in respect of 500 bighas which were the subject matter of the title suit; in other words, its legal effect was to create a perpetual under-lease between the Singhs and the Deoshis which would clearly fall under Clause (d) but for the circumstance that it was to take effect only on condition that the Singhs paid ₹ 8,000 to Kumar within 2 months thereafter. As pointed out by the Judicial Committee in Hemanta Kumari's case [47 Calcutta 485] An agreement for a lease, which a lease is by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 44 of the Evidence Act that the same is one without jurisdiction or is vitiated by fraud or collusion or that it is avoidable on any ground known to law. But otherwise that decree is operative and going by the plain language of Section 17 of the Registration Act, particularly, in the context of Sub-clause (vi) of Sub-section (2) in the background of the legislative history, it cannot be said that a decree based on admission requires registration. On the facts of that case, it is seen that their Lordships proceeded on the basis that it was the decree on admission that created the title for the first time. It is obvious that it was treated as a case coming under Section 17(1)(a) of the Act, though the scope of Section 17(2)(vi) of the Act was discussed in detail. But on the facts of this case, as we have indicated and as found by the courts, it is not a case of a decree creating for the first time a right, title or interest in the present plaintiff and his brother. The present is a case where they were putting forward in the suit a right based on an earlier transaction of relinquishment or family arrangement by which they had acquired interest in the property scheduled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on want of registration. The title acquired earlier had been pleaded by the plaintiff and his brother and upheld by the decree. It is only permissible to look at the evidentiary value of that decree at least as a case of assertion and recognition of the right by the court. In the case on hand, the family arrangement set up, which suffered no defect on the ground of want of registration, had been accepted by the Court in Civil Suit No. 398 of 1980 and relief granted. That grant of relief cannot be ignored as not admissible. 16. Learned Counsel for the plaintiff-contesting respondent raised a contention that the ratio of the decision in Bhoop Singh (supra) requires reconsideration since the said decision has not properly understood the scope of Clause (vi) of Section 17(2) of the Registration Act. For the purposes of this case we do not think that it is necessary to examine this argument. We are satisfied that the said decision is distinguishable. We also feel that the tendency, if any, to defeat the law of registration has to be curtailed by the legislature by appropriate legislation. In this instance, we wonder why the Transfer of Property Act is not being extended ..... X X X X Extracts X X X X X X X X Extracts X X X X
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