Supreme Court of India
RIPUDAMAN SINGHversusTIKKA MAHESHWAR CHAND
- Citation
- 2021 INSC 320
- Decided
- 6 July 2021
- Disposal
- Appeal(s) allowed
Holding
A compromise decree that merely declares pre‑existing hereditary rights does not fall within the ambit of Section 17(2)(vi) and therefore does not require compulsory registration.
Summary
The appellant and respondent, brothers and heirs of the deceased, were involved in a suit for possession of land based on a will. During the suit, the parties reached a compromise that allocated additional land not originally in dispute, resulting in a compromise decree. The issue before the Supreme Court was whether such a decree, concerning land outside the suit’s subject‑matter, required compulsory registration under Section 17(2)(vi) of the Registration Act, 1908. The Court held that the decree merely declared the parties' pre‑existing hereditary rights and did not create a new right in immovable property; therefore, registration was not mandatory. Consequently, the compromise decree was upheld and the appeal was allowed.
Issues considered
- Whether a compromise decree involving land not the subject‑matter of the suit but part of a family settlement must be compulsorily registered under Section 17(2)(vi) of the Registration Act, 1908.
- Whether the decree creates a new right or merely declares a pre‑existing right of the heirs.
Legislation cited
- Registration Act, 1908s. 17(2)(vi)
Subjects
Registration Actcompromise decreefamily settlementpre‑existing rightcompulsory registrationCivil Procedure Codeinheritanceland disputeOrder XXIII Rule 3
Judgment
562 [2021]REPORTS
SUPREME COURT 6 S.C.R. 562 [2021] 6 S.C.R.
A RIPUDAMAN SINGH
v.
TIKKA MAHESHWAR CHAND
(Civil Appeal No. 2336 of 2021)
B JULY 06, 2021
[SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]
Registration Act, 1908: s.17(2)(vi) – Parties to dispute are
brothers – Suit for possession disputing Will – Compromise decree
between brothers – Whether a compromise decree in respect of land
C
which is not the subject-matter of suit but is part of the settlement
between the brothers required compulsory registration in terms of
s.17(2)(vi) of the Registration Act – Held: As heir of deceased-father,
the plaintiff-appellant had a right in the estate left by the deceased
– Therefore, it was not a new right being created for the first time
D when the parties entered into a compromise before the civil court
rather an pre-existing right in the property was recognized by way
of settlement in court proceedings – Compromise entered between
the parties before the trial court leading to decree included land
which was not subject matter of suit – Compromise decree can be
passed even if the subject-matter of the agreement, compromise of
E
satisfaction is not the same as the subject-matter of the suit in terms
of the provisions of Order XXIII Rule 3 CPC – Therefore, the
compromise decree entered into between the parties in respect of
land which was not the subject matter of the suit is valid and is thus
a legal settlement – Where the decree has been passed in respect of
F family property, clause (vi) of sub-section 2 of s.17 of the Registration
Act would be applicable – The principle is based on the fact that
family settlement only declares the rights which are already
possessed by the parties – Compromise was between the two brothers
consequent to death of their father and no right was being created
in praesenti for the first time, thus not requiring compulsory
G
registration.
Bhoop Singh v. Ram Singh Major and Others (1995) 5
SCC 709 : [1995] 3 Suppl. SCR 466 – relied on.
Kale and Others v. Deputy Director of Consolidation
H and Others (1976)3 SCC 119:[1976] 3 SCR 202;
562
RIPUDAMAN SINGH v. TIKKA MAHESHWAR CHAND 563
Ravinder Kaur Grewal and Others v. Manjit Kaur and A
Others (2020) 9 SCC 706; K. Raghunandan and Others
v. Ali Hussain Sabir and Others (2008) 13 SCC
102:[2008] 8 SCR 657; Phool Patti and Another v. Ram
Singh (Dead) Through LRs. and Another (2009) 13 SCC
22:[2009] 5 SCR 362; Phool Patti and Another v. Ram
B
Singh (Dead) Through LRs. and Another (2015) 3 SCC
465 – referred to
Case Law Reference
[1976] 3 SCR 202 referred to Para 10
(2020) 9 SCC 706 referred to Para 11 C
[1995] 3 Suppl. SCR 466 relied on Para 13
[2008] 8 SCR 657 referred to Para 14
[2009] 5 SCR 362 referred to Para 15
D
(2015) 3 SCC 465 referred to Para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2336
of 2021
From the Judgment and Order dated 28.10.2016 of the High Court
of Himachal Pradesh at Shimla in RSA No. 441 of 2004. E
R. Basant, Sr. Adv., Sharan Thakur, Mahesh Thakur, Siddharth
Thakur, Vishnu P., Ms. Vipasha Singh, Mahesh Thakur, Ms. Anuradha
Mutatkar, Advs for the appellant.
Mohit Paul, Vinod Sharma, Sunaina Phul, B. K. Satija, Advs. for
the respondent. F
The following Order of the Court was passed :
ORDER
Leave granted.
1. The plaintiff is in appeal before this Court challenging the G
judgment and decree passed by the High Court on 28.10.2006 whereby
appeal filed by the defendant was allowed and the suit for declaration
challenging the orders passed in mutation proceedings was dismissed.
H
564 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 2. The parties herein are the two sons of late Vijendra Singh. The
appellant filed a suit for possession in the year 1978 disputing the Will
dated 04.12.1958 executed in favour of the defendant. The appellant
claimed half share of the land as described in the plaint. During the
pendency of suit, a decree was passed on the basis of compromise arrived
at between the parties. The terms of compromise read as under:
B
“The plaintiff shall be delivered possession of Khasra No. 513/1
area measuring 8 Kanals 18 Marlas as per Tatima Ex.P-2 by the
defendant and the plaintiff shall be exclusive owner thereof and
the defendant shall continue to remain in physical possession as
an owner of Khasra No.513/2 area measuring 143 Kanals and 16
C Marlas.
The plaintiff shall be owner of Khasra No. 516/1 area measuring
27 Kanals 11 Marlas and the defendant shall also pay to the plaintiff
a sum of Rs.10,000/- within one month from today. The plaintiff
shall also be owner in respect of the land recorded in the ownership
D of the defendant in Patwars Dhaneta, Nohngi, Choru and Saproh
in respect of Ghair Mumkin Land.”
3. In pursuance of the decree so passed, the plaintiff sought a
mutation of the 1/2 share of the land vesting to him which was allowed
by the Naib Tehsildar on 10.02.1983. However, an appeal against the
E said mutation was disposed of with a direction to Naib Tehsildar to decide
the mutation afresh as the mutation was sanctioned without granting
any opportunity of being heard to the respondent.
4. The appellant thereafter filed an appeal before the Divisional
Commissioner. Such appeal was dismissed on the ground that the
F compromise decree in the absence of registration is against the provisions
of the Registration Act, 1908. It was held as under:
“From the perusal of the record, it is revealed that the decree
passed by the Ld. Sub Judge in Civil Suit No. 45 of 1978 is a
compromise decree concerning delivery of possession of Khasra
G No.513/1 measuring 8 Kanals 18 Marlas and owner of Kh.
No.516/1 measuring 27 Kanals 11 Marlas situated in patwars
Dhaneta, Nohang, Choru and Saproh in respect of Gair Mumkin
Land. The present appeal is in respect of other land which was
not the subject matter of suit in the civil court under section 17(2)(vi)
of Indian Registration Act the compromise decree which related
H
RIPUDAMAN SINGH v. TIKKA MAHESHWAR CHAND 565
to the subject matter of the suit remained immune from registration. A
The compromise decree which incorporated matters beyond the
scope of the suit, requires registration. Therefore, the land under
dispute which is beyond the scope of the suit or compromise decree
requires registration. The Assistant Collector, IInd Grade Nadaun
vide his orders dated 24.6.89 has sanctioned the mutation without
B
the registration of the compromise decree is against the provision
of the act ibid and the Ld. Collector has rightly accepted the
appeals of the respondent Tikka Maheshwar Chand. Hence, these
appeals are dismissed and the order of the Collector dated 13.2.91
is upheld.”
5. The appellant subsequently filed a suit for declaration challenging C
such order passed by the Commissioner. The suit was dismissed by the
learned Sub Judge, Ist Class, Hamirpur on 20.11.2002. But the appeal
preferred by the appellant was allowed by the learned District Judge,
Hamirpur in 19.08.2004. The said order was under challenge in the second
appeal before the High Court. The High Court set aside the judgment D
and decree passed by the first appellate court and the suit was dismissed
on the ground that the land even though being subject-matter of
compromise, was not the subject-matter of the suit and therefore the
decree required registration under Section 17(2)(vi) of the Registration
Act, 1908.
E
6. The only question in the present appeal is whether a compromise
decree in respect of land which is not the subject-matter of suit but is
part of the settlement between the family members requires compulsory
registration in terms of Section 17(2)(vi) of the Registration Act, 1908.
The relevant provision of clause (v) and clause (vi) of sub-clause (2) of
Section 17 of the said Act reads as under: F
“17(2) Nothing in clauses (b) and (c) of sub-section (1) applies
to-
xxx
(v) any document other than the documents specified in sub-
G
section (1A) not itself creating, declaring, assigning, limiting or
extinguishing any right, title or interest of the value of one hundred
rupees and upwards to or in immovable property, but merely
creating a right to obtain another document which will, when
executed, create, declare assign, limit or extinguish any such right,
title or interest; H
566 SUPREME COURT REPORTS [2021] 6 S.C.R.
A (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];”
7. We find that the judgment and decree passed by the High Court
B is clearly erroneous and cannot be sustained in law. The parties are the
sons of late Vijendra Singh. As an heir of deceased, the appellant had a
right in the estateleft by the deceased. Therefore, it was not a new right
being created for the first time when the parties entered into a
compromise before the civil court but rather an pre-existing right in the
property was recognized by way of settlement in court proceedings.
C
8. Though, the Gair Mumkin Land (Non-cultivable land) was not
subject-matter of the suit, but the compromise entered between the
parties before the learned Trial Court leading to decree on 3.11.1981
included such non-cultivable land. It is to be noted that compromise decree
can be passed even if the subject-matter of the agreement, compromise
D
of satisfaction is not the same as the subject-matter of the suit in terms
of the provisions of Order XXIII Rule 3 of the Code of Civil Procedure,
1908. Order XXIII Rule 3 of the Code of Civil Procedure, 1908 reads
thus:
“3. Compromise of Suit. - Where it is proved to the satisfaction of
E
the Court that a suit has been adjusted wholly or in part by any
lawful agreement or compromise, in writing and signed by the
parties or where the defendant satisfies the plaintiff in respect of
the whole or any part of the subject-matter of the suit, the Court
shall order such agreement, compromise or satisfaction to be
F recorded, and shall pass a decree in accordance therewith so far
as it relates to the parties to the suit, whether or not the subject-
matter of the agreement, compromise or satisfaction is the same
as the subject-matter of the suit:
xxx xxx.”
G
9. Therefore, the compromise decree entered into between the
parties in respect of land which was not the subject matter of the suit is
valid and is thus a legal settlement. It would be relevant to notice that
defendant-respondent has not disputed such settlement on any admissible
grounds before any forum.
H
RIPUDAMAN SINGH v. TIKKA MAHESHWAR CHAND 567
10. The question whether such settlement between the members A
of the family would require registration or not has come up for
consideration before this Court in a judgment reported in Kale and Others
v. Deputy Director of Consolidation and Others1 which reads as under:
“9…………The object of the arrangement is to protect the family
from long-drawn litigation or perpetual strifes which mar the unity B
and solidarity of the family and create hatred and bad blood
between the various members of the family. Today when we are
striving to build up an egalitarian society and are trying for a
complete reconstruction of the society, to maintain and uphold the
unity and homogeneity of the family which ultimately results in
the unification of the society and, therefore, of the entire country, C
is the prime need of the hour. A family arrangement by which the
property is equitably divided between the various contenders so
as to achieve an equal distribution of wealth instead of
concentrating the same in the hands of a few is undoubtedly a
milestone in the administration of social justice. That is why the D
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
so that future disputes are sealed for ever and the family instead
of fighting claims inter se and wasting time, money and energy on E
such fruitless or futile litigation is able to devote its attention to
more constructive work in the larger interest of the country. The
courts have, therefore, leaned in favour of upholding a family
arrangement instead of disturbing the same on technical or trivial
grounds. Where the courts find that the family arrangement suffers F
from a legal lacuna or a formal defect the rule of estoppel is
pressed into service and is applied to shut out plea of the person
who being a party to family arrangement seeks to unsettle a settled
dispute and claims to revoke the family arrangement under which
he has himself enjoyed some material benefits.
G
10. In other words to put the binding effect and the essentials of a
family settlement in a concretised form, the matter may be reduced
into the form of the following propositions:
“(1) xxx xxx
1
(1976) 3 SCC 119 H
568 SUPREME COURT REPORTS [2021] 6 S.C.R.
A (4) It is well settled that registration would be necessary only if
the terms of the family arrangement are reduced into writing.
Here also, a distinction should be made between a document
containing the terms and recitals of a family arrangement
made under the document and a mere memorandum prepared
after the family arrangement had already been made either for
B
the purpose of the record or for information of the court for making
necessary mutation. In such a case the memorandum itself does
not create or extinguish any rights in immovable properties and
therefore does not fall within the mischief of Section 17(2) of the
Registration Act and is, therefore, not compulsorily registrable;
C (5) The members who may be parties to the family arrangement
must have some antecedent title, claim or interest even a possible
claim in the property which is acknowledged by the parties to the
settlement. Even if one of the parties to the settlement has no title
but under the arrangement the other party relinquishes all its claims
D or titles in favour of such a person and acknowledges him to be
the sole owner, then the antecedent title must be assumed and the
family arrangement will be upheld and the courts will find no
difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not
E involve legal claims are settled by a bona fide family arrangement
which is fair and equitable the family arrangement is final and
binding on the parties to the settlement.”
11. The said judgment has come up for consideration recently in a
case reported as Ravinder Kaur Grewal and Others v. Manjit Kaur
F and Others2.It may be stated that this was not a case of compromise
decree but of a family settlement which was sought to be enforced in a
suit for declaration as one of the parties to the settlement wanted to
resile from it. Such family settlement was held to be a document as per
clause (v) of sub-section 2 of Section 17 of the Registration Act, 1908.
G 12. An aggrieved person can seek enforcement of family
settlement in a suit for declaration wherein the family members have
some semblance of right in property or any pre-existing right in the
property. The family members could enter into settlement during the
pendency of the proceedings before the Civil Court as well. Such
2
H (2020) 9 SCC 706
RIPUDAMAN SINGH v. TIKKA MAHESHWAR CHAND 569
settlement would be binding within the members of the family. If a A
document is sought to be enforced which is not recognized by a decree,
the provision of clause (v) of sub-section 2 of Section 17 of the Registration
Act, 1908 would be applicable. However, where the decree has been
passed in respect of family property, clause (vi) of sub-section 2 of
Section 17 of the Registration Act, 1908 would be applicable. The principle
B
is based on the fact that family settlement only declares the rights which
are already possessed by the parties.
13. In respect of a question whether the decree requires registration
or not, this Court in Bhoop Singh v. Ram Singh Major and Others3
held that decree or order including compromise decree creating new
right, title or interest in praesenti in immovable property of value of C
Rs.100/- or above is compulsory for registration. It was not the case any
pre-existing right but right that has been created by the decree alone.
This court explained both the situation, where a part has pre-existing
right and where no such right exists. It was observed as under:
“13. In other words, the court must enquire whether a document D
has recorded unqualified and unconditional words of present demise
of right title and interest in the property and included the essential
terms of the same; if the document, including a compromise memo,
extinguishes the rights of one and seeks to confer right, title or
interest in praesenti in favour of the other, relating to immovable E
property of the value of Rs.100 and upwards, the document or
record or compromise memo shall be compulsorily registered.
xx xx xx
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 F
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 G
other view would find the mischief of avoidance of registration,
which requires payment of stamp duty, embedded in the decree
or order.
xx xx xx
3
(1995) 5 SCC 709 H
570 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 18. The legal position qua clause (vi) can, on the basis of the
aforesaid discussion, be summarized 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
B 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.
C (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,
D 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)
E 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.
F 19. Now, let us see whether on the strength of the decree passed
in Suit No. 215 of 1973, the petitioner could sustain his case as put
up in his written statement in the present suit, despite the decree
not having been registered. According to us, it cannot for two
reasons:
G (1) The decree having purported to create right or title in the
plaintiff for the first time that is not being a declaration of pre-
existing right, did require registration. It may also be pointed out
that the first suit cannot really be said to have been decreed on
the basis of compromise, as the suit was decreed “in view of the
written statement filed by the defendant admitting the claim of
H
RIPUDAMAN SINGH v. TIKKA MAHESHWAR CHAND 571
the plaintiff to be correct”. Decreeing of suit in such a situation is A
covered by Order 12 Rule 6, and not by Order 23 Rule 3, which
deals with compromise of suit, whereas the former is on the subject
of judgment on admissions.
(2) xxx xxx ”
14. In K. Raghunandan and Others v. Ali Hussain Sabir and B
Others4, a decree was passed in respect of disputes between the
two neighbours over passage. It was held that such decree would require
registration.
“A statute must be construed having regard to the purpose and
object thereof. Sub-section (1) of Section 17 of the Act makes registration C
of the documents compulsory. Sub-section (2) of Section 17 of the Act
excludes only the applications of clauses (b) and (c) and not clause (e)
of sub-section (1) of Section 17. If a right is created by a compromise
decree or is extinguished, it must compulsorily be registered if the
compromise decree comprises immovable property which was not the D
subject-matter of the suit or proceeding. Clause (vi) is an exception to
the exception. If the latter part of clause (vi) of sub-section (2) of Section
17 of the Act applies, the first part thereof shall not apply. As in this case
not only there exists a dispute with regard to the title of the parties over
the passage and the passage, itself, having not found the part of the
compromise, we do not find any infirmity in the impugned judgment.” E
15. The judgments of this Court in Bhoop Singh and K.
Raghunandan was found to be inconsistent in an order reported in
Phool Patti and Another v. Ram Singh (Dead) Through Lrs. and
Another5 and the matter was thus referred to a larger Bench. The larger
Bench in the judgment reported as Phool Patti and Another v. Ram F
Singh (Dead) Through Lrs. and Another6 did not find inconsistencies
between the two judgments.
16. Bhoop Singh was a case dealing with both the situations,
decree between the parties where the decree holder does not have any
pre-existing right in the property and also the situation where decree G
holder has a pre-existing right. It was the second situation where the
decree holder has a pre-existing right in the property, it was found that
4
(2008) 13 SCC 102
5
(2009) 13 SCC 22
6
(2015) 3 SCC 465 H
572 SUPREME COURT REPORTS [2021] 6 S.C.R.
A decree does not require registration. In K. Raghunandan case, the
dispute was not amongst the family members but between neighbours
regarding right over passage. Obviously, none of them had any pre-
existing right over the immovable property in question.
17. In view of enunciation of law in Bhoop Singh’s case, we find
B that the judgment and decree of the High Court holding that the decree
requires compulsory registration is erroneous in law. The compromise
was between the two brothers consequent to death of their father and
no right was being created in praesenti for the first time, thus not
requiring compulsory registration. Consequently, the appeal is allowed
and the suit is decreed.
C
Devika Gujral Appeal allowed.
D
E
F
G
H
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