PHOOL PATTI AND ANR.versusRAM SINGH (DEAD) THROUGH LRS. & ANR.

                      [2015) 1 S.C.R. 305


                   PHOOL PATii AND ANR.                                 A
                                 v.
       RAM SINGH (DEAD) THROUGH LRS. & ANR.
            (Civil Appeal No. 1240 of 2005)
                      JANUARY 06, 2015
                                                                        B
      [MADAN B. LOKUR AND C. NAGAPPAN, JJ.]

       Registration Act, 1908 - ss. 17(1)(a), 17(2)(vi) -
Documents of which registration is compulsory - Gift -
Registration of - Non-collusive consent decree and a family             C
settlement between the parties - Statement of the owner-uncle
that he gave the disputed property to his nephew under his
free will treating him as his son - 20 kanals of land was his
self acquired property while 32 kanals of his ancestral property
came to the share of the nephew through the family settlement           o
- Registration of the said lands - Held: As regards 32 kanals
of land, the nephew's claim over the said land was
acknowledged in the consent decree - If did not require
compulsory registration in view of s. 17(2)(vi) - As regards,
the gift of 20 kanals of land by the uncle in favour of his             E
nephew, notwithstanding the decree in the first suit, it requires
compulsory registration u/s. 17(1)(a) since it created, for the
first time, right, title or interest in immovable property of a value
greater than Rs. 1001- in favour of the nephew.

     Partly allowing the appeal, the Court                              F

    HELD: 1.1 In the face of contradictory facts, the only
statement that can be relied upon is that of 'B'-owner
himself who stated in the witness box (in the second suit)
that the entire disputed property was not ancestral but                 G
that 20 kanals were purchased by him while 32 kanals
were ancestral property. If that be so, then 'B' was entitled
to gift 20 kanals of land to 'RS'-nephew which he did. As
regards the remaining 32 kanals, 'B' accepted the
                                305                                     H
    306      SUPREME COURT REPORTS              [2015] 1 S.C.R.


A existence of a family settlement, and the trial court (in the
  first suit) did accept that there was a family settlement. It
  has been held that in a suit for declaration filed by 'RS'
  against "B, the consent decree was not a collusive
  decree, then it must follow that the finding that there was
B no family settlement (arrived at in the second suit) must
  be held incorrect, and it is done so. Consequently, in
  terms of the family settlement, 32 kanals of land originally
  belonging to 'B' came to the share of 'RS' in the family
  settlement. This explains the statement of 'B' that he
C "gave" the disputed property to 'RS' 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 'RS' through the family
  settlement. 20 kanals of land was gifted by 'B' to 'RS'. This
  gift clearly requires compulsory registration under
D Section 17(1)(a) of the Registration Act, 1908. 'RS's claim
  over 32 kanals of land was acknowledged in the consent
  decree. This did not require compulsory registration in
  view of Section 17 (2) (vi) of the Act. [Para 27, 28, 29] [316-
  D-H; 317-A-C]
E
        1.2 The terms of the family settlement are not on
  record. The family settlement could relate to the ancestral
  as well as self-acquired property of 'B' or only the
  ancestral property. It appears that it related only to the
F a_ncestral 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.
  However, the self acquired property of 'B' that is 20
  kanals, therefore, in view of the law laid down in Bhoop
  Singh's case the gift of 20 kanals of land by 'B'in favour
G of 'RS', 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 'RS'. [Para 32]
  [318-B-D]
H
  PHOOL PATTI AND ANR. v. RAM SINGH (DEAD)               307
           THROUGH LRS. & ANR.
    Bhoop Singh v. 'RS' Major 1995 (3) Suppl. SCR 466:          A
(1995) 5 sec 709 - relied on.

     K. Raghunandan and Ors. v. Ali Hussain Sabir & Ors.
 2008 (8) SCR 657: 2008 (9) SCALE 215: (2008) 13 sec
102; Nagubai Ammal v. B. Shama Rao 1956 SCR 463; Rup            B
Chand Gupta v. Raghuvanshi Pvt. Ltd. (1964) 7 SCR 760,
763; Ramchandra G. Shinde v. State of Maharashtra 1993
(1) Suppl. SCR 589: (1993) 4 SCC 216 - referred to.

                    Case Law Reference:
    2008 (8) SCR 657             Referred to      Para 19
                                                                c
    1956 SCR 463                 Referred to      Para 30
    (1964) 7 SCR 760, 763        Referred to      Para 30
    1993 (1) Suppl. SCR589       Referred to      Para 30       D

    1995 (3) Suppl. SCR 466      Relied on        Para 32
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1240 of 2005
                                                                E
    From the Judgment and Order dated 22.10.2003 of the
High Court of Punjab and Haryana Chandigarh in Regular
Second Appeal No. 2176 of 1985.
      Dhruv Mehta, Mahabir Singh, Shobha, Sameer P. A.,
Jyoti, Gagan Deep Sharm, Preeti Singh, Nikhil Jain with them,   F
for the Appellants.
     Neeraj Kumar Jain, Pratham Kant, Umang Shankar, Dr.
Kailash Chand, Ashok Kumar Sharma, Devashish Bharuka for
the Respondents.
                                                                G
    The Judgment of the Court was delivered by.
    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
                                                                H
    308      SUPREME COURT REPORTS                [2015] 1 S.C.R.


A 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,
B 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
C 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
0
    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.
E      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
F 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
G 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
H ancestral.
  PHOOL PATTI AND ANR. v. RAM SINGH (DEAD)                      309
  THROUGH LRS. & ANR. [MADAN B. LOKUR, J.]
     6. However, two conclusions can be drawn quite safely: (i)         A
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.                                    B

     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 P_hool Devi filed Suit No. 234 of 1982 before the C
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             D
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.
                                                                        E
     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           F
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.
                                                                        G
     10. On the basis of the pleadings, the Trial Court framed
three issues as follows:-

     1.     Whether judgment and decree dated 24.11.1980 is
     void, illegal and not binding upon the rights of the plaintiffs?   H
     310        SUPREME COURT REPORTS              [2015) 1 S.C.R.


A          2.   Whether any family settlement was made between
           the parties?

           3.   Relief.

          11. In support of the plaint, Shobha Ram (another nephew
8    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.

C      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
D 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
·E   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.
F
        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
G 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.
H          15. Feeling aggrieved by the decision of the Trial Judge,
  PHOOL PATTI AND ANR. v. RAM SINGH (DEAD)                       311
  THROUGH LRS. & ANR. [MADAN B. LOKUR, J.]

Ram Singh preferred Civil Appeal No. 43/13 in the Court of the           A
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            B
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             c
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               D
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         E
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.                                                         F

     17. Feeling aggrieved by the setting aside of the decree
of the Trial Court, Phool Patti and Phool Devi preferred Second
Appeal No. 2176of1985 in the Punjab & Haryana High Court.
The re.spondents in the Second Appeal were Ram Singh,                    G
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
                                                                         H
    312        SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A 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,
B 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
C two decisions cited at the Bar, namely, K. Raghunandan and
  Ors. v. Ali Hussain Sabir & Ors 1. and Bhoop Singh v. Ram
  Singh Majoi2. 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:-
D
       "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.
E
          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)
F         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
G         immovable property other than that which is the subject-
          matter of the suit or proceeding".

          12. In our opinion the exception mentioned in Section
    1.    2008 (9) SCALE 215 = (2008) 13 sec 102.
H   2.    (1995) 5 sec 709.
PHOOL PATTI AND ANR. v. RAM SINGH (DEAD)                   313
THROUGH LRS. & ANR. [MADAN B. LOKUR, J.]

 17(2)(vi) means that if a suit is filed by the plaintiff in       A
 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.                          B

 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       C
 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 ....... "             D

 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
                                                                   E
 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 th9t if a decree
 is passed regarding some immovable property which is
 not a subject-matter of the suit then it will require             F
 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           G
 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
                                                                   H
    314         SUPREME COURT REPORTS               [2015) 1 S.C.R.


A         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).
B
          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
c         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
O 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.

E         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).
F
          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
G 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

H   3.   (2009) 13   sec 22.
  PHOOL PATTI AND ANR. v. RAM SINGH (DEAD)                  315
  THROUGH LRS. & ANR. (MADAN B. LOKUR, J.]
appellants Phool Patti and Phool Devi contended that the            A
decree dated 24th November, 1980 was a collusive decree.
In fact, a false case of ~ 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,        B
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              C
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   D
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.                          E

      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       F
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     G
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          H
    316      SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A 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
B conclusion cannot now be challenged by the appellants and we
  too are b·ound 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
c 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
D January, 1983 (in the second suit) that the entire disputed
  property was not ancestral bl:Jt 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
E 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
F 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
G 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
H
     PHOOL PATTI AND ANR. v. RAM SINGH (DEAD)                317
     THROUGH LRS. & ANR. [MADAN B. LOKUR, J.]
Bhagwana came to the share of Ram Singh in the family A
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.         B

     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 C
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 D
collusive and therefore of no effect. He referred to Nagubai
Ammal v. B. Shama Rao4 , Rup Chand Gupta v. Raghuvanshi
Pvt. Ltd5 . and Ramchandra G. Shinde v. State of Maharashtra6 •
However, in view of the conclusion arrived at by this court in its
order dated 21st March, 2009 we are not inclined to reopen E
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 F
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 G
challenge the validity of the gift. It is too late in the day for them

4.   1956 SCR 463.
5.   (1964) 7 SCR 760, 763.
6.   (1993) _4 sec 216, 225.                                        H
    318          SUPREME COURT REPORTS                [2015) 1 S.C.R.


A   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
8
    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
C   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 Shoop 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,
D   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
E   costs.

    Nidhi Jain                                       Appeal partly allowed.