LexBHOOP SINGH versus RAM SINGH MAJOR AND ORS.
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A :B BHOOP SINGH v. RAM SINGH MAJOR AND ORS. SEPTEMBER 11, 1995 [K. RAMASWAMY AND B.L. HANSARIA, JJ.f Registration Act 1908-Sections 17(2)(vi), 17(1)(b) and (c) and 17 ( 1 )(a )-Decree in declarat01y suit conceming immovable property based on admission of defendant-Whether such decree to confer rights, requires C registration-~-Held, decree not being declaration of pre-existing right, but pur- porting to create right or title in property of value of Rs. 100 or upwards in favour of plaintiffs for the first time, requires registration-Decree in question, further found to be collusive-Section 17(2)(v)-Amending Act 21 of 1929-Stamp Act 1899, Section 2(14)-Civil Procedure Code 1908, Order 12, D Rule 6 and Order 23, Rule 3. E F The plaintiffs and the defendants (including the petitioner in this case) in the suit out of which the SLP arose were descendants ofa common ancestor. In an earlier suit filed in 1973, the petitioner obtained a decla- ratory decree in respect of the property in suit, on the basis of a written statement filed by the defendant in that suit admitting the claim of the plaintiff (petitioner) to be correct. Therefore nothing much happened, till the present suit was filed claiming 1/3 share in the suit lands as heirs· of a common ancestor. The petitioner contended that, in view of the aforesaid order, the dispute did not survive and he alone was entitled to be in possession of the suit land. The trial court held the earlier decree was against law and facts. The appeal of the petitioners to the District Judge, and a second appeal to a learned Single Judge of the High Court was also dismissed. G In appeal, the question was whether the aforesaid decree not being registered, it could have conferred any right on the petitioner. It was urged for the petitioner that, in view of the exception provided in Section 17 (2)(vi) of the Registration Act 1908, the decree is not required to be registered. It was contended that it was Section 17(1)(b) which was H attracted to the case and not Section 17(1)(a), and Section 17(2)(vi) would, 466 BHOOP SINGH v. RAM SINGH MAJOR 467 therefore, be operative. Dismissing the petition, this Court HELD : l. The exception engrafted in Section 17(2)((vi) is meant to cover that decree or order of a court, including a decree or order expressed A to be made on a compromise, which declares the pre-existing right and B does not by itself create new right, title or interest in praesenti in immov- able property of the value of Rs. 100 or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order. [474-F] Rani Hemanta Kumari Debi v. Midnapur Zamindwi Co. Ltd. (1919) AC 240, Mangan Lal Deoshi v. Mohammad Moinul Haque, [1950) SCR 833, Fazal Rasul Khan v. Mohd-ul-Nisa, AIR (1944) Lah 394 and C. Muthuvel Pillai v. Hazarath Syed Shah Mian AIR (1974) Mad 199, distinguished c Bislmndeo Narain v. Seogani Rai & Jagernath, [1951) SCR 548, D Shanker Sitarani Sontakke v. Balkrishna Sitaram Sontakke [1955) 1 SCR 99, Sudhir Chandra Guha v.Jogesh Chandra Das, AIR (1970) A & N 102, Surjya Kumar Das v. Sm. Maya Dutta, AIR (1982) Cal 222, Luxmi Narain Kapoor v. Radhey Mohan Kapoor, AIR (1986) All 244, Gurdev Kaur v. Me/tar Singh, (1989) PW 182, Ranbir Singh v. Sl11i Chand, (1984) PLJ 562, Sumintabai Ramlaishna v. Rakhambai Ramklishna Jadhav AIR (1981) Born. 52, Tek E Bahadur v. Debi Singh AIR (1966) SC 292, Maturi Pulliah v. Maturi Narasim- han, AIR (1966) SC 1836 and Ratan Lal Shanna v. Purshottam Harit, [1974) 3 SCR 109, referred ~o. 2. It would be the duty of the court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court on party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of F Rs. 100 upwards in favour of other party for the first time, either by com11romise or pretended consent. If later be the position, the document G is compulsorily registrable. [474-G-H] 3. The legal pnsition qua clause (vi) of Section 17(2) can be sum- marised as below : (1) Compromise decree if bona fide, in the sense that the ·com- H 468 SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R. A promise is not a device to obviate payment of stamp duty and frustrate the la
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