Paragraph numbers below are the court’s original numbering, recovered from the source text.
13. In the written statement, the defendant Bhajan Singh prayed that suit of the plaintiffs be decreed as prayed. The pleading in the suit and in the written statement clearly leads to the conclusion that suit was filed on the basis of pre-existing right in favour of plaintiffs, which was basis of the suit. Pre-existing right of the plaintiffs was admitted by the defendant and decree was passed therein.
14. Thus, the submission of the plaintiffs-respondents that suit was not based on pre-existing right of the plaintiffs cannot be accepted, which is belied by the categorical pleading in the plaint. In view of the above pleadings, we are of the view that very basis of the applicability of the judgment of Bhoop Singh (supra)is knocked out and is not attracted in the present case. This Court in a recent judgment in Civil Appeal No.800 of 2020 – Mohammade Yusuf & Ors. Vs. Rajkumar & Ors. decided on 05.02.2020 had occasion to consider Section 17 as well as judgment of Bhoop Singh (supra). While elaborating Section 17, this Court laid down following in paragraph 6:- “6. A compromise decree passed by a Court would ordinarily be covered by Section 17 (1) (b) but subsection (2) of Section 17 provides for an exception for 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. Thus, by virtue of sub- section(2)(vi) of Section 17 any decree or order of a Court does not require registration. In sub-clause(vi) of sub-section (2), one category is excepted from sub-clause(vi), i.e., 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. Thus, by conjointly reading Section 17 (1) (b) and Section 17 (2) (vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17 (2) (vi). A copy of the decree passed in Suit No.250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 04.10.1985 was passed by the Court for the property, which was subject matter of the suit. Thus, the exclusionary clause in Section 17 (2) (vi) is not applicable and the compromise decree dated 04.10.1985 was not required to be registered on plain 8 reading of Section 17 (2) (vi)………………………….”
15. In the above case, this Court further relied on earlier judgment of this Court in Som Dev and Others Vs. Rati Ram and Another, (2006) 10 SCC 788 in paragraph 13 and laid down following:- “13. This Court in Som Dev and Others Vs. Rati Ram and Another, (2006) 10 SCC 788 while explaining Section 17(2)(vi) and Section 17(1)(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down following:- “18. ……………But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit…………………….”
16. In the above case, the earlier decree, which was sought to be ignored on the ground that it was not registered related only with the suit property. This Court held that the said decree did not require registration. Following reasons were given in paragraph 14:- “14. In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17 (2) (vi) and present case is covered by the main exception crafted in Section 17 (2) (vi), i.e., “any decree or order of a Court”. When registration of an instrument as required by Section 17 (1) (b) is specifically excluded by Section 17 (2) (vi) by providing that GURCHARAN SINGH & ORS. v. ANGREZ KAUR & ANR. [ASHOK BHUSHAN, J.] nothing in clause (b) and (c) of sub-section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 07.01.2015 as well as the judgment of the High Court dated 13.02.2017. The compromise decree dated 04.10.1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly.”
17. Reverting back to the facts of the present case, it is clear that the Suit No. 556 of 21.09.1994 filed by the appellants against Bhajan Singh relates to the suit property described in plaint and decree was passed only with regard to suit property A to D. The decree dated 09.01.1995 was, thus, expressly covered by expression “any decree or order of a Court”. When legislature has specifically excluded applicability of clause (b) and (C) with regard to any decree or order of a Court, applicability of Section 17 (1) (b) cannot be imported in Section 17 (2) (v) by any indirect method. We, thus, are of the considered opinion that decree and order dated 09.01.1995 did not require registration and were fully covered by Section 17 (2) (vi), which contains exclusion from registration as required in Section 17(1). High Court as well as First Appellate Court erred in coming to the conclusion that decree dated 19.01.1995 required registration and due to not registered is null and void.
18. Trial Court’s view that decree dated 19.01.1995 being binding on Bhajan Singh, the plaintiffs, who are the daughters of Bhajan Singh cannot avoid the decree. The submission of the learned counsel for the respondent that decree dated 09.01.1995 was obtained by fraud also needs to be considered.
19. The submission of the learned counsel for the respondent is that since in the suit, which was filed by the defendant, they described the defendant as uncle of the plaintiffs, who were looking after and serving the defendant, which statement having been found not to be proved, it was fraud played on the defendant and the Court.
20. We need to revisit the facts and sequence of events in the case to examine as to whether any fraud was played on the Court or Bhajan Singh in obtaining the decree dated 09.01.1995. Bhajan Singh had executed a registered Will dated 02.09.1986, which was a registered Will and pleaded in paragraph 2 of the plaint. In paragraph 3 of the plaint, it was also pleaded that pursuant to a Family Settlement dated 15.06.1994 by which Bhajan Singh decided to allot plaintiffs in equal share and relinquished all his rights in the suit property, which pleadings were admitted by Bhajan Singh in his statement. The decree was passed on 09.01.1995 on the basis of which mutation was sanctioned on 03.03.1995. Bhajan Singh was admittedly alive till 24.04.1998 and in his lifetime, he never objected the decree or mutation in favour of the defendants. It has been accepted by the Courts below that both Bhajan Singh and Gurmail Kaur were divorced and which divorce was recorded in writing on 15.09.1973 as proved before the Courts below. Gurmail Kaur after 15.09.1973 started living with Maghar Singh, brother of Bhajan Singh in Village Jalowal and thereafter never returned to Bhajan Singh. Gurmail Kaur also filed a suit for maintenance against Bhajan Singh, which was dismissed for non-prosecution. The plaintiffs, i.e., Angrez Kaur and Paramjit Kaur, after divorce went with their mother and lived with Maghar Singh and never returned to Bhajan Singh. In her statement, PW1 has admitted that she never came to see her father. The Courts have found that Bhajan Singh lived with the defendants after the divorce, who were taking care of Bhajan Singh. The execution of registered Will by Bhajan Singh on 02.09.1986 in favour of the defendants and further his admission that all the claim of the defendants in Suit No. 556 are correct and accepting that he has relinquished his rights in favour of the plaintiffs, Gurcharan Singh, Gurnam Singh and Kulwant Singh clearly disprove any ground of fraud either on the Court or on Bhajan Singh. The divorce between Bhajan Singh and Gurmail Kaur took place on 15.09.1973 and thereafter for 25 years, Bhajan Singh lived away from his wife and daughters and it was the defendants, who were taking care of Bhajan Singh. Admitting the claim of plaintiffs/appellants in the suit filed against the defendant Bhajan Singh for declaration cannot be termed as any fraud played on Bhajan Singh or the Court. Sequence of events clearly indicate that Bhajan Singh of his own volition wanted to give the entire property to the defendants due to the circumstances of the case, in which Bhajan Singh was placed. It is due to this reason that Bhajan Singh in his Will dated 02.09.1986 stated that he has no wife or children. We, thus, do not find any substance in the submission of the learned counsel for the respondents that any fraud was played in obtaining decree dated 09.01.1995 by the defendants. The decree dated 09.01.1995 cannot GURCHARAN SINGH & ORS. v. ANGREZ KAUR & ANR. [ASHOK BHUSHAN, J.] be held to be suffering from any fraud or coercion as contended by the learned counsel for the respondents.
21. We having held that decree dated 09.01.1995 was a valid decree, the decision of the trial court dismissing the suit for declaration that decree dated 09.01.1995 was null and void, has to be upheld. In view of our above conclusion, we do not find it necessary to consider various submissions raised by the learned counsel for the parties regarding the validity of the registered Will dated 02.09.1986.
22. In view of the foregoing discussions, we set aside the judgment of the High Court as well as First Appellate court and restore the decree of trial court. The appeal is allowed accordingly. Devika Gujral Appeal allowed