A.F.R.
Court No. - 3
Case :- FIRST APPEAL No. - 646 of 2017 Appellant :- Nitish Agrawal Respondent :- Smt. Usha Agrawal & 2 Others Counsel for Appellant :- Tarun Agrawal Counsel for Respondent :- Imran Syed,S.C.
Hon'ble Pankaj Mithal,J. Hon'ble Rajiv Joshi,J.
Heard Sri Tarun Agrawal, learned counsel for the plaintiff- appellant and Sri Imran Syed, learned counsel appearing for the defendant-respondents.
The appeal has been preferred under Section 96 of the Code of Civil Procedure against the judgement, order and decree dated 21.03.2017 by which the suit for declaration has been decreed in terms of the compromise paper No.28Ga subject to its registration under Section 17 of the Registration Act, 1908 (hereinafter referred to as the Act).
The plaintiff-appellant is aggrieved by the condition placed in the judgement and order whereunder it has been mandated to get the decree registered under Section 17 of the Act.
The argument of Sri Tarun Agrawal, learned counsel for the plaintiff appellant is that the suit for declaration of rights in the property was filed in the light of the oral partition between the parties which had taken place on 03.06.2016 and was duly acted upon. Therefore, the declaration was with regard to the pre-existing rights and not in respect of any new rights of the plaintiff-appellant created by the decree in the suit property. Since the decree is not creating new rights it registration is not necessary.
Sri Imran Syed, learned counsel for the defendant- respondents accepts that the decree for declaration was on the basis of the oral partition which had been acted upon earlier.
The suit was instituted on 02.01.2017 on the basis of the oral partition alleged to have been taken place on 03.06.2016.
The plaintiff-appellant in paragraph 5 of the plaint has clearly pleaded that during life time of the plaintiff- appellant's father an oral family settlement had taken place on 03.06.2016 wherein the properties were divided by mutual agreement. In paragraph-8 of the plaint it has been averred that the said family settlement dated 03.06.2016 was acted upon.
In paragraph-12 of the written statement the defendant- respondents have accepted the aforesaid family settlement and have stated that all the parties have left their share in the property in question in favour of the plaintiff-appellant pursuant to the above referred family settlement.
The averments made in the plaint and the written statement clearly demonstrate that after the family settlement had taken place on 03.06.2016 during the life time of the father of the plaintiff-appellant, the same was acted upon and as such plaintiff-appellant had acquired rights in the property immediately when the said family settlement was carried out.
The suit was filed on 02.01.2017 for declaring the rights of the plaintiff-appellant in the suit property which had already accrued to him by way of the aforesaid family settlement. Therefore, the suit was for declaration in respect of pre-existing rights of the plaintiff-appellant.
In Luxmi Narain Kapoor Vs. Radhey Mohan Kapoor and others AIR 1986 Allahabad 244 a division bench of this court has held that where a compromise was filed by the parties incorporating the terms and conditions of the earlier family settlement, the compromise decree did not require any registration in view of Sub-Section (2)(vi) of Section 17 of the Registration Act. A compromise decree which does not create any right or title in favour of the parties on its own force but operates to recognise pre- existing right of the family members in view of the family settlement which had taken place prior to the filing of the suit does not require registration.
In Bhoop Singh Vs. Ram Singh Major and others (1995) 5 Supreme Court Cases 709 it has been laid down that a decree including a compromise decree which create new right title or interest in praesenti in immovable property of value of Rs.100/- or above alone is registrable.
The aforesaid decision does not lay down that a compromise decree which recognises the pre-existing rights of the parties is required to be registered compulsorily.
In short, a decree recognising the pre-existing rights of the parties in an immovable property is not required to be registered.
Thus, in view of the aforesaid facts and circumstances, we are of the opinion that the court below on the basis of the decision of the Bhoop Singh's case incorrectly directed for the registration of the decree.
Accordingly, judgement, order and decree dated 21.03.2017 is modified and the condition of the registration of the decree under Section 17 of the Act is deleted. In all other respects, it remains intact.
The appeal is allowed as aforesaid.
Order Date :- 25.4.2018 piyush