Shankar Jagannathan v. G.Balakrishnan

Judgement 1995 (5) SCC 709 Bhoop Singh Vs. Ram Singh Major and others

(2006) 10 SCC 788 Som Dev and Others Vs. Rati Ram and Another

(2008) 13 SCC 102 K.Raghunandan and Othes Vs. Ali Hussain Sabir and Others 2011 (8) SCC 613 Ramesh Kumar and another Vs. Furu Ram and another 2015 (3) SCC 164 Phool Patti and anothers Vs. Ram Singh (died)

(2020) 10 SCC 250 Gurucharan Singh and Others Vs Angrez Kaur and Another

¶85As regards the counter claim filed by the 5th defendant, it is the contention of the learned senior counsel that the 5th defendant in the suit O.S.No.582 of 2002 had purchased the property from Raghupathy under a sale deed dated 23.01.2013, who inturn purchased it from the 1st plaintiff in the year 2006 under a registered sale deed. Both the Courts below have rightly come to the conclusion that the counter claim was not maintainable. The appellants would submit that their right to the property is not only on account of the Will executed by Govindarajulu in their favour but also on account of the fact that their deceased mother was coparcener in respect of the suit properties by reason of Hindu Succession Amendment Act, 2005 and therefore the compromise decree passed in O.S.No.236 of 1970 and O.S.No.215 of 1985 without including her was not binding on them.

¶86The 1st and the 3rd appellants are mentally challenged and therefore limitation would not apply to them. They are setting up claim based on the ground that they are the legal representatives of the deceased coparcener Chandraleka. The learned senior counsel would submit that the Lower Appellate Court has totally lost sight of the above factors and has reversed the Judgement and decree of the Trial Court.

Written Submissions of the appellant in S.A.No.100 of 2023

¶87The appellant in S.A.No.100 of 2023 is the 5th defendant in O.S.No.582 of 2001. The appellant would contend that she is the bonafide purchaser in respect of 34-1/2 cents in S.No.8-3/A which is the 5th item in the schedule of properties to the suit and which is situate in Thottipalayam Village, Tiruppur Taluk, Tiruppur Sub Registration District forming part of a larger extent of 3 acres 50 cents. The appellant would concede that she is a pendente lite purchaser who had purchased the property from one Raghupathy under a registered sale deed dated 23.01.2013 (Ex.B85). The said Raghupathy, in turn, has purchased the property from the first plaintiff on 19.10.2005 (Ex.B77). The appellant has also sought allotment of this extent to her share. Apart from reiterating the sequence of events as pleaded by the first plaintiff, the appellant would also contend that the decree in O.S.No.236 of 1970 was not acted upon.

¶88It is also the appellant's contention that the subsequent decree in O.S.No.215 of 1985 is not valid inasmuch as the decree had not been registered as contemplated under Section 17 of the Registration Act. It was also her contention that the first defendant, Balakrishnan did not have any pre-existing right in the properties that had been allotted to him under the decree. Since it was for the first time that he had acquired a right, the compromise decree had to be compulsorily registered. Since the decree is not registered, no right would flow under this decree. It is her contention that the suit O.S.No.299 of 2000 filed by Sathish, the son of the first defendant was also a collusive suit which again had not been registered. That apart, under this compromise decree, the first defendant's wife, Renuka was allotted properties though she is not a coparcener and had no right to the joint family properties belonging to Govindaraj and Balakrishnan, The property which has been purchased by the appellant has been allotted to the said Renuka.

¶89The appellant would further contend that the trial Court in both suits O.S.No.236 of 1970 and O.S.No.215 of 1985 had held that the decrees obtained in these suits were invalid. However, the trial Court has erroneously proceeded to declare the sale in favour of the appellant invalid. She would further contend that the finding that the suit is bad for non-joinder of Raghupathy and non-examination of Mohana was absolutely erroneous. She would further submit that from a plain reading of Ex.A.27, plaint in O.S.No.94 of 2006, Ex.A28, written statement of the first plaintiff in the above suit and Ex.A.29, written statement of the first defendant in the above suit, it is crystal clear that they were very much aware about the sale of 34 ½ cents in favour of the appellant by Raghupathy even as early as in the year 2005.

¶90In the written statement filed by the first plaintiff, he has admitted that he has sold 34 ½ cents to Raghupathy and that this extent has been sold only with the knowledge of the first defendant, his son Sathish and his wife, Renuka, The first defendant, in his written statement, has also stated that the patta in respect of the property in Survey No.8-A/3 is in the joint names of Raghupathy and Renuka. Therefore, the parties cannot now turn around and contend that they were not aware about the sale in favour of the appellant. Further, this sale deed has not been challenged by the first defendant, his son and his wife. The appellant would further submit that she is a bonafide purchaser and her possession has to be protected even under equity. Written Submissions of the appellants in S.A.No.552 of 2022.

¶91This appeal has been filed by the legal representatives of the defendants 1 and 2 in O.S.No.194 of 2006 which is the suit filed by the first defendant's son, Sathish. In the written submissions, the appellant would submit that they are only concerned with the lands measuring 3.85 acres in S.No.309 and 6 acres in Survey No.310 which the original defendants 1 and 2 has purchased under Exs.B93 and B94 dated 31.05.2000 from the first plaintiff Govindaraj. It is their contention that under the compromise decree in O.S.No.236 of 1970, the properties comprised in S.Nos.309 and 310 were allotted to the share of Govindaraj as the "B" schedule property. They would submit that after the partition, each of the sharers has been in exclusive possession of their shares and they have accepted and acted upon the compromise decree. This factum is evident, as both Govindaraj as well as Balakrishnan have sold their respective shares under various sale deeds to various persons. In fact, these purchasers have not been impleaded as parties to the present suit, which only goes to show that the compromise decree in O.S.No.236 of 1970 has been given effect to. The appellant would further submit that when Govindaraj's wife Sakunthala had filed a suit in O.S.No.215 of 1985 against the first defendant, he had voluntarily impleaded himself in the above said suit and brought the properties allotted to him into the suit and executed the memorandum of compromise, which was subsequently decreed. They would further submit that the transfer of the suit properties allotted to the share of Govindaraj in favour of Balakrishnan creates a new right in the suit properties to Balakrishnan which has to necessarily be registered without which no right would flow to Balakrishnan. Govindaraj, according to the appellants, had executed two separate sale deeds in favour of defendants 1 and 2, one in favour of one Karuppasamy and another sale deed in favour of Karuppasamy and Palanisamy.

¶92The appellants would contend that the defendants 1 and 2 in O.S.No.194 of 2006 were in exclusive possession and enjoyment of the suit properties from the date of the purchase. Subsequently, the first defendant's son, Sathish had filed O.S.No.299 of 2000 on

03.11.2000 on the file of the Sub Court, Dharapuram against his father, mother and sister for a partition. This suit was compromised in I.A.No.30 of 2011. The appellants would submit that since no right flowed to the first defendant under the un-registered compromise decree in O.S.No.215 of 1985, the subsequent un-registered compromise decree passed in O.S.No.299 of 2000 filed by the sixth defendant, Satish also does not confer any title or interest to the said Sathish. It is their contention that all the other suits following the decree in O.S.No.215 of 1985 does not create any right, title or interest in the properties since the compromise decree in O.S.No.215 of 1985 has not been registered as contemplated under Section 17 of the Registration Act. They would also contend that the plaintiff, Sathish has claimed a right to the property on the basis of the compromise decree entered into in O.S.No.299 of 2000. Therefore, the compromise, having been entered into after the sale in favour of defendants 1 and 2, will have no effect on the sale deed executed in favour of defendants 1 and 2. They would therefore, seek to have the appeal allowed.

¶93It is also the contention that there is no cause of action for filing the suit O.S.No.194 of 2006, since even as per the pleadings in O.S.No.299 of 2000-Ex.A41, the cause of action had arisen on

02.11.2000 subsequent to the sale in favour of the appellants. In the judgment reported in 1995 (5) SCC 709 [Bhoop Singh Vs. Ram Singh Major and Others], the Hon'ble Supreme Court has clearly held that a genuine and bonafide compromise entered in respect of a pre-existing right is exempted from registration. In the case on hand, the compromise decree has to necessarily be registered and the same has not been done. Therefore, no rights would flow. They would further contend that after the partition in the year 1970 and from a perusal of Exs.A19 and B2, the father and son are enjoying the properties as their individual properties. Therefore, the claim that the properties have been allotted to the grandson under Ex.B11 is clearly mischievous and not binding on the purchaser. They have also raised a ground that the finding that there has been a blending of the properties is totally misconceived inasmuch as it is not backed by pleadings. The lower appellate Court has arrived at this finding without any oral evidence of the re-union in 1986. In support of their contentions, the appellants relied on the following judgments. Sl. Citation Judgement

(1995) 5 SCC 709 Bhoop Singh Vs. Ram Singh Major and Others

(2015) 3 SCC 164 Phool Patti and Another Vs. Ram Singh (Dead) Through Legal Representatives and Another

Written arguments of the respondents in all the second appeals

¶94After setting out the reliefs and the relevant dates and events, the respondents have contended that the appellants in all the appeals had no locus standi to question the validity of the decree passed in O.S.No.236 of 1970. I a) The first plaintiff, Govindaraj, after obtaining the decree in O.S.No.236 of 1970, has amended the decree twice once in the year 1970 and secondly in the year 1983. b) On 08.04.1984, a suit filed by the State Bank of India on the file of the Sub Court, Tiruppur was allowed to be dismissed against the properties allotted to Balakrishnan under the decree in O.S.No.236 of 1970. c) Govindaraj has executed various sale deeds in respect of the portions of the property that he had been allotted under the decree in O.S.No.236 of 1970 in which he has specifically referred to the partition decree in O.S.No.236 of 1970 dated

25.04.1970. The sale deeds have been marked as Exs.B5 to B8, B34, B35, B36 and B74. d) In the affidavit filed in I.A.No.595 of 1986 in O.S.No.215 of 1985, the first plaintiff has specifically admitted the partition that has taken place between him and his son, the first defendant in O.S.No.236 of 1970. e) Balakrishnan, under Exs.A27, A28, A38, A39, A40, A41, Exs.B68 and B69, has sold portions of the property allotted to him under the decree in O.S.No.236 of 1970. Therefore, it is crystal clear that both the parties have not only entered into a compromise and allowed the decree to be passed based upon the compromise, they have also acted upon this decree. Therefore, it does not lie in the mouth of the first plaintiff to question the decree in O.S.No.236 of 1970. f) In none of these sale deeds has the first plaintiff mentioned that he is executing these sale deeds in his capacity as Kartha of the joint family. g) The revenue records have been mutated in the name of the first defendant and defendants 2 to 4 as evidenced from Exs.B12 to B24. The plaintiffs 2 to 4 cannot question the decree in O.S.No.236 of 1970 as they have been impleaded as plaintiffs 2 to 4 in O.S.No.582 of 2001 on the strength of the Will said to have been executed by the first plaintiff. h) Subsequent to the decree in O.S.No.236 of 1970, the joint family status ceased to exist. The admission of P.W1, the first plaintiff that he and his son have been living separately since 1970 only goes to strengthen the fact that the compromise decree has been given effect to. II.

i). The respondents 1 to 4 have countered the arguments of the appellants regarding the non registration of the compromise decree in O.S.No.215 of 1985, being fatal to the claim of the defendants, by contending that the compromise had been entered into only in respect of the suit properties in which parties had a pre-existing right and the decree was granted in respect of these properties.

ii). Exs.B1 and B2, which are the certified copies of the impleading applications and affidavit in I.A.No.595 of 1986 in O.S.No.215 of 1985, would show that the first plaintiff has voluntarily taken out this application to have himself added as a party in the above suit. Not stopping with having himself impleaded, he has also sought to include all the properties allotted to him under the decree in O.S.No.236 of 1970 added in the suit in order to maintain unity in the family.

iii) Govindaraj and Sakuntala have signed the Memo which contains the terms of the compromise and had appeared before the Court. The said compromise was recorded and a decree was passed in O.S.No.215 of 1985.

(iv). Under the compromise, the prime property which stood in the share of Balakrishnan in G.S.Nos.663 and 664 of Thottipalayam Village, measuring an extent of 4.55 acres, had been allotted to the share of Sakunthala only to purchase peace in the family and in turn, the properties of a much lesser value have been allotted to the first defendant. All of this would go to show that the properties are joint family properties and the title was traceable prior to the decree of the year 1970, which clearly shows that Balakrishnan had a pre-existing right in the properties and there was no necessity to register the same.

(iv). P.W2 in his cross examination has admitted that the properties, which are the subject matter of the suit O.S.No.215 of 1985 are part of the properties comprised in Ex.A1-Partition Deed, which was allotted to the share of the first plaintiff under the partition of the year 1963.

(v). The decree in O.S.No.215 of 1985 has been accepted and acted upon which is evident from Exs.B9, B42 to B67-Sale Deeds executed by Sakunthala where Sakunthala referred to the partition deed dated 30.07.1986 in O.S.No.215 of 1985-Ex.B3. Further, the first plaintiff, Govindaraj has signed as witness in most of the documents.

(vi) Even after this compromise, the parties have been individually selling the properties that had been allotted to them under the suit O.S.No.215 of 1985. The compromise had been reduced into writing signed by the parties and presented before the Court by the parties themselves which was recorded. The decree was passed as contemplated under Order 23 Rule 3 of C.P.C. Therefore, there is no necessity to register the decree. The parties have received substantial benefits from these decrees. III.

i) The decree in O.S.No.236 of 1970 and O.S.No.215 of 1985 has been acted upon in view of the alienations done by the first plaintiff, Sakunthala and the first defendant on the basis of the aforesaid decree. Therefore, once the parties have executed and acted upon the decree, they are estopped from once again claiming a right to the property.

ii). By not including some of the properties that had been allotted to Sakunthala, the appellants have clearly admitted that the properties belonged to Sakunthala over which they could not claim a right. IV 1) The plaintiff in O.S.No.582 of 2001 and O.S.No.413 of 2003 have not made out any grounds as contemplated under proviso to Rule 3 of Order 23 of C.P.C for setting aside the compromise decree. The independent suit filed challenging the same is clearly barred by the provisions of Rule 3A of Order

¶232) The compromise in the suit O.S.No.215 of 1985 has been signed by the first plaintiff, Sakunthala and the first defendant in O.S.No.215 of 1985 and they have also acted upon this decree which is evident from the sale deed executed by Sakunthala's mother. V. The plaintiffs in O.S.No.582 of 2001 and O.S.No.413 of 2003 have deliberately suppressed the alienations made by them pursuant to the decree in O.S.No.236 of 1970 and O.S.No.413 of 2004. That apart, these properties which had been sold were not included in the suit. Once again confirming the fact that the compromise decree were given effect to. They have not come on record to disclose the sale consideration for which the properties were sold. VI.

(i) The respondents would further submit that the appellant in S.A.No.582 of 2022 does not have a valid title in respect of the properties subject matter of the suit O.S.No.194 of 2006.

(II) The properties comprised in S.F.Nos.309 and 310 of Chettipalayam Village were allotted to the share of the first plaintiff who had suo moto brought the properties in the suit O.S.No.215 of 1985. 3) In the compromise in the aforesaid suit, these properties were allotted to the share of the first defendant and thereafter, by virtue of the compromise in the suit O.S.No.299 of 2000, the properties were allotted to the share of the plaintiff in O.S.No.299 of 2000 i.e the son of the first defendant. 4) The first plaintiff, having given up his right by virtue of his getting impleaded in O.S.No.215 of 1985 and bringing in his properties into the suit has no right title or interest in the property and therefore, the alienations carried out by him are not binding on the parties. VII. The respondents would further contend that the fifth defendant cannot claim equity when the person who has alienated the property to his vendor has no right, title or interest in the property.

¶95The respondents have relied upon the following judgments. Validity of un-registered compromise decree

¶12006(1) SCC 168 Amteshwar & Others Vs Verandar mohan Singh

¶22006(10) SCC 788 Somdev & Others Vs Rathi ram & Others

¶32015(3) SCC 164 Phool Patti & Others Vs Ram Singh

¶42020(10) SCC 250 Gurcharan Singh & Others Vs Angrez Kaur & Others

¶52021(7) SCC 446 Ripudaman Vs Tikka Maheswar

¶62021(16) SCC 279 Kushi ram & Others Vs Nawal Singh

¶71999 SCC Online Cal 546 = 1999(3) ICC 677(cal) Smt.Sefail Mukherjee & Others Vs Sri Amal Krishna Chatterjee

¶82010 SCC Online Cal 173 Dipali Roy vs Samir abnerjee Effect of Family Arrangement

¶9AIR 1955 SC 481 Sahu Madho Das & Others Vs Pandit Mukand ram & Others

¶10AIR 1966 SC 323 Ram Charan Das Vs Girija Nandhini Devi and Others Discussions:

¶96These second appeals have been admitted on the following substantial questions of law: "(A) Whether the Lower Appellate Court below is right in upholding the claim of the DW1 when it was proved that the compromise decree in O.S 236 of 1970 is only for the purposes of avoiding the land ceiling especially when it was established that Govindaraj continued to be in management of the property as the karta of the family?

(B) Whether the courts below are right in recognising the decree in O.S 215 of 1985 when the party to the compromise have no exclusive title to the property?

(C) Whether the compromise decree in O.S 299 of 2000 is not fraudulent and mischievous in as much as the parties interested in the property were not made parties to the suit?

(D) Whether the lower appellate court has properly appreciated the provision of Section 17(2)(vi) of the Registration Act while considering the validity of the compromise decree passed in O.S.No.215 of 1985 under which properties are allotted to the plaintiff's father for the first time without any pre-existing right?

(E) Whether the lower appellate court is right in law in decreeing the suit O.S.No.194 of 2006 by allowing, without appreciating the well settled principles of law laid down by the Hon'ble Apex Court in the decisions reported in 2015(3) SCC 164 and 1995(5) SCC 709 that the allotment of property under the compromise decree for the first time is compulsorily registrable documents?

(F) Whether the finding and reasoning of the lower appellate court regarding "blending" is sustainable, particularly in the absence of any pleading and cogent evidence for reunion in the year 1986 after the disruption of joint family in the year 1970?

(G) After having held that the joint family properties were divided by metes and bounds under the decree passed in O.S.No.236 of 1970, is it correct on the part of the Lower Appellate Court to held that the parties have blended their properties in the subsequent compromise in O.S.No.215 of 1985?

(H) Whether the Lower Appellate Court is right in law in involving the doctrine of blending, when admittedly no joint family nucleus and no joint family property was in existence as the division of status has taken place long back and the properties have already been divided by the sharers by metes and bounds"?

¶97Though these second appeals have been admitted on the above substantial questions of law, the arguments have been advanced by the appellants in all the appeals on grounds giving rise to the following substantial questions. Therefore, this Court has re-framed the substantial questions of law as follows: a) Whether the compromise decree in O.S.No.236 of 1970 which had been executed only for the purpose of overcoming the provisions of the Land Ceiling Act and to avoid surrendering the surplus land to the Government had not been acted upon? b) Whether the non-registration of the compromise decree in O.S.No.215 of 1985 would confer any right, title or interest on the first defendant? c)Whether the decree in O.S.No.236 of 1970 has been fraudulently obtained as the 1st defendant has suppressed the fact that he was a minor at the time of instituting the suit? d)Whether the 5th defendant is entitled to be allotted the property under equity?

¶98From the pleadings and the evidence on record, it is clear that a suit O.S.No.236 of 1970 had been filed by the first defendant against the first plaintiff for a partition in which the parties had agreed to compromise and resolve the disputes and thereafter, the terms of the compromise had been reduced into writing and a decree came to be passed in terms of the said compromise. According to the first plaintiff, the compromise was effected only to circumvent the provisions of the Tamil Nadu Land Ceiling Act and to avoid surrendering the surplus lands to the Government. The plaintiff would contend that though a compromise had been entered into, he continued to be in possession and enjoyment of the properties. However, the evidence that has been let in by the parties would prove otherwise and the statement false. The records would show that the first plaintiff had twice amended the decree in O.S.No.236 of 1970, one immediately and one 13 years thereafter, i.e. 1970 and 1983, thereby reiterating and confirming the compromise decree in O.S.No.236 of 1970. Under Exs.B5 to B8, B.34 to B.36 and B.74, the first plaintiff has alienated portions of the property which has been alloted to him under the compromise decree in O.S.No.236 of 1970 and in the sale deed, a reference has been made to the decree in O.S.No.236 of 1970. Not stopping with that, it is also seen that in the affidavit filed to implead himself as a party in O.S.No.215 of 1985, i.e. I.A.No.595 of 1986, Govindaraj has admitted to the partition between himself and his son, the first defendant through the decree of Court in O.S.No.236 of 1970. This admission has been made 15 years after the compromise decree in O.S.No.236 of 1970. Not only has the first plaintiff alienated the properties, but the first defendant has also alienated such of the portions as had been allotted to him, which is evident from Exs.A27, A28, A38 to A41, Exs.B68 and B69. Therefore, it is crystal clear that the decree had been acted upon. Therefore, to now contend that the decree in O.S.No.236 of 1970 has not acted upon is absolutely false. The first defendant also marked Exs.B12 to B24 to show their possession of the properties in question. Having entered into such a compromise and acted upon the same the first plaintiff cannot renege on the same. Therefore from the above arguments the appellants in all the above Second Appeals are attempting to put forward a case that the decree in O.S.NO.236 of 1970 followed by the decree in O.S.No.215 of 1985 does not exist and the parties have entered into a sham decree which has been brought about to circumvent the provisions of the Land Ceiling Act. This argument clearly exposes the fact that the 1st plaintiff in O.S.No.236 of 1970 has not only played fraud on the State but also used the Judicial process to help him achieve this end. That it is the 1st plaintiff who has orchestrated the above is evident from the very pleadings / arguments of the 1st plaintiff that the 1st defendant was minor at that relevant point in time and that despite the decree the parties continued to enjoy the properties in the same fashion as it existed prior to the institution of the suit O.S.No.236 of 1970. The second suit O.S.No.215 of 1985 where yet another compromise decree was passed once again exposes the active role played by the 1st plaintiff. Though this suit was originally instituted by the 1st plaintiff's wife Sakunthala agaisnt her son, the 1st defendant, the 1st plaintiff voluntarily chose to not only implead himself as a party to the suit but also sought to amend the suit schedule by including the properties allotted to him in the earlier decree in O.S.No.236 of 1970. The pleading would reflect that the suit O.S.No.215 of 1985 was also instituted to circumvent yet another Ceiling Act that was in the anvil.

¶99Now the question that would arise is whether such a person can now try to set the clock back to the position prior to the suit O.S.No.236 of 1970. In other words can he be permitted to raise the defense that a decree to which he is a party and which is brought about to circumvent the law cannot be enforced. Whether the state's failure to proceed with the acquisition of the surplus lands would strengthen the case of the 1st plaintiff particularly when the proceeding had been brought about to deprive the state of the lands held by the 1st plaintiff and his family in excess of the Ceiling limit.

¶100A Second Appeal arising out of more or less similar facts had been considered by his Lordship Justice S.S.Subramani in the Judgement reported in 1998 (I) CTC 314 – N.Rajammal (died) and another Vs. P.Maragathammal and 28 others. This was a case where with a view to escape the provisions of the Tamil Nadu Land Ceiling Act (Fixation of Ceiling on Land) Act, 1961, and also to avoid surrendering surplus lands to the Government, a father had brought about the partition deed between himself and his daughters. However, despite such a machination, a portion of the partition deed was held to be a void document as it was brought about to defeat the provisions of the Tamil Nadu Land Ceiling Act. The appeal and revision filed by the father, Appasami ended against him. Thereafter, Appasami passed away leaving behind him surviving his daughters. One of his daughters, thereafter filed a suit for partition against her sisters. A contention was raised that the partition deed which had been executed in the year 1970 by the father for the specific purpose of circumventing the Land Ceiling Act had not been acted upon. The defense to this argument was that the plaintiff was estopped from putting forward the contention since she is a party to the document.

¶101The learned Judge discussed at length the scope and object of the Act, the relevant provision of the Act. Section 22 of the Act which is extracted below was pressed into service by the defendants therein to contend that the partition effected by void. ""Where, on or after the date of the commencement of this Act. but before the notified date, any person has transferred any land held by him by sale, gift (other than gift made in contemplation of death), exchange, surrender, settlement or in any other manner whatsoever except by bequest (or has effected a partition of his holding or part thereof the Authorized Officer within those jurisdiction such land, holding, or the major part thereof is situated may, after notice to such person and other persons affected by such transfer or partition and after such enquiry as he thinks fit to make, declare the transfer or partition to be void if he finds that the transfer or partition, as the case may be, defeats any provisions of this Act".

¶102The learned Judge had therefore framed a question for consideration as follows: "Whether the partition deed dated

30.9.1970 is void for all purposes, whether it is valid as between the parties to the transaction. Incidentally, a question may arise as to whether the document is valid only to the extent it defeats the provisions of the Tamil Nadu Land Ceiling Act"

¶103The above question therefore called for an interpretation of Section 22. The learned Judge relying on the various Judicial pronouncements relating to interpretation of an enactment as held by the Hon'ble Supreme Court held that as between the transferor and transferee the transaction remains intact. The learned Judge considered the arguments put forward by the learned senior counsel for the appellants that the documents, which was projected as a partition deed, cannot be so construed since the daughter had no pre-existing right to the property and therefore, the document in question is void for all the purposes.

¶104In paragraph 28 of his judgment the learned Judge has answered the argument as follows: "28. If Ex.A-1 cannot amount to a partition since the daughters are not co-sharers, and the ownership is also conferred on them, what is the legal effect of that document. It can only be a gift. For, a right in praesenti is created. A person who had no antecedent right is conveyed ownership by virtue of this document though it may not be a gift which was validity under Sec.21-A of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act". Ultimately, the learned Judge has gone on to state that the plea that the document is a void document can be taken only by the authority and the parties are interse bound by the agreement.

¶105Juxtaposing the facts of the above case to the case on hand, Ex.A1 in the above referred case has to be substituted by the compromise decree in O.S.No.236 of 1970. Therefore, applying the ratio laid down in the aforesaid case, the 1st plaintiff in O.S.No.582 of 2001 and the persons claiming under him are clearly bound by the compromise entered into in the suit O.S.No.536 of 2001.

¶106The first plaintiff has further pleaded that the first defendant was a minor at the time of the execution of the compromise decree and therefore the decree has been obtained by practicing fraud on the Court and on that ground also, the decree is void. A similar plea of fraud had been taken in an earlier judgment of the Bombay High Court reported in 1940 ILR Bom 160 [Shripadgouda Venkangouda Aparanji Vs Govindgouda Narayangouda Aparanji]. The Division Bench had observed that where there is a pleading of collusive decree, such a decree can be impeached not by the parties to the decree but by innocent persons claiming under them or by strangers. However, the parties who have practice fraud on the court cannot impeach the judgment on the ground that it was collusively procured. The Bench observed as follows: "That is a clear authority for the proposition that a party to the decree cannot complain of any fraud practised by himself and another upon the Court. In other words, a party could not be permitted to take advantage of his own baseness or permitted to defeat a judgment by showing that in obtaining it he had practiced an imposition on the Court. It would indeed be otherwise if one of the parties and the Court were deceived by the fraud of another. In such a case, as I have pointed out, the jurisdiction of the Court to set aside a decree cannot be denied provided the alleged fraud is established, and there is no excessive delay in bringing the action after the discovery of fraud. " Therefore, the arguments of the first plaintiff that the decree in O.S.No.236 of 1970 has not been acted upon and is tainted by the collusion / fraud cannot be countenanced. That apart if the compromise decree is sought to be questioned on the ground of fraud and that it is not lawful. The same cannot be questioned in a subsequent suit as per the provisions of Order XXIII Rule 3 A of the Code of Civil Procedure. Therefore, the substantial questions of law

(a) and (c) as re-framed by this Court is answered against the appellants.

¶107The substantial question of law (b) relates to the registration of the compromise decree passed in O.S.No.215 of 1985. It is the case of the appellants that the compromise decree in O.S.No.215 of 1985 confers a right in the property for the first time upon the first defendant and therefore, the same has to be necessarily registered and failure to register the same does not cloth with any right to the properties. A reference is made to section 17(2)(vi) of the Registration Act. The same would read as follows: " (vi) any decree or order of a Court 2 [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." Therefore, a reading of the provision would show that a property which is not the subject matter of a suit or a proceeding but which is included in the compromise decree would come within the purview of the exception contained in Clause 2 (vi) of Section 17 of the Registration Act. In the case on hand, though O.S.No.215 of 1985 was originally filed only against the first defendant with reference to different set of properties, however the first plaintiff has chosen voluntarily to implead himself in the said suit and also to bring in all the properties that had been alloted to him in the suit under the decree in O.S.No.236 of 1970. The compromise had been effected after these properties had been included and the schedule amended to include these properties as the subject matter of the suit. Therefore, the same would not fall within the exception (vi) to sub Section 2 of Section 17 of the Registration Act and does not require registration.

¶108The appellants have placed emphasis on the Judgement reported in 1995 (5) SCC 709 – Bhoop Singh Vs. Ram Singh Major and others in support of their argument that where right, title and interest is created for the first time under the decree or order and the value of the immovable property is over Rs.100/- the same has to be compulsorily registered. That was a case where a declaratory suit was filed and the defendants in the written statement had admitted the plaintiff's claim. On this basis a decree in favour of the plaintiff come to be declared. Thereafter, one of the legal heirs of the plaintiff had filed another suit for partition on the strength of the earlier declaratory suit. A defense taken was that the decree was not registered. The suit was dismissed, confirmed in First Appeal as well as the Second Appeal. This Judgment was challenged before the Hon'ble Supreme Court. The learned Judges after considering the provisions of Section 17 of the Registration Act had observed as follows: "13. In other words, the court must enquire whether a document 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 property of the value of Rs.100/- and upwards, the document or record or compromise memo shall be compulsorily registered.

¶17It would, therefore, 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 one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in preasenti in immovable property of the value of Rs.100/- or upwards in favour of other party for the first time, either by compromise or presented consent. If latter be the position, the document is compulsorily registrable."

¶109Ultimately summarised their finding at paragraph No.18 as follows: "18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised 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 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.

(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, 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) 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.

¶110In the Judgement in 2008 (13) SCC 102 – K.Raghunandan and others Vs. Ali Hussain Sabir and others, the Hon'ble Supreme Court was called upon to consider the effect of a decree in respect of the suit passage which was not the subject matter of the suit but which was included in the compromise. The learned Judges considering the provisions of Section 17 of the Registration Act held as follows: "If a right is created by a compromise decree or is extinguished, it must compulsorily be registered. 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."

¶111In a more recent Judgement of the Hon'ble Supreme Court reported in (2020) 10 SCC 250 – Gurcharan Singh and others Vs. Angrez Kaur and Another, the learned Judges considering Bhoop Singh's case and other Judgements as also the provisions of Section 17 of the Registration Act held as follows in paragraph no.22: "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.

¶112Therefore, from an analysis of the above Judgements it is clear that both the comprise decree in O.S.No.236 of 1970 and the compromise decree in O.S.No.215 of 1985 would squarely fall with the exception provided in Section 17 (2) (vi) of the Registration Act as the comprise was entered into only in respect of properties that were the subject matter of the respective suits. Therefore, substantial question of law (b) is also answered against the appellants.

¶113Coming to the substantial question of law (d) regarding the counter claim by the 5th defendant. When the property was sold by the first plaintiff to Raghupathi, the first plaintiff no longer had any right to the property as it had already been allotted to the share of the first defendant under the compromise decree in O.S.No.215 of 1985. Consequently, the subsequent sale by the said Raghupathy in favour of the fifth defendant will not grant him any right to the property. Therefore, the judgment of the lower appellate Court rejecting the claim of the 5th defendant has to necessarily be upheld. Consequently, the substantial question of law (d) is also answered in favour of the respondents. Consequently, the second appeals are dismissed and the judgment and decree of the lower appellate Court is confirmed. There shall be no order as to costs.

11.06.2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 28.02.2024 PRONOUNCED ON : 11.06.2024 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA S.A.Nos. 251, 289 & 552 of 2022 & S.A.No. 100 of 2023 S.A.No. 251 of 2022: 1.Shankar Jagannathan 2.Sridhar Jagannathan 3.Shalini Jagannathan ...Appellants Vs. 1.G.Balakrishnan 2.B.Satish 3.B.Subramaniam 4.Maniarasupethi ...Respondents PRAYER: Second Appeal filed under Section 100 of CPC against Judgement and Decree in A.S.No.16 of 2021 dated 23.09.2021 on the file of the Principal District Judge, Tiruppur in reversing the well – considered Judgement and Decree in O.S.No.413 of 2003 dated 28.07.2020 on the file of the Additional Subordinate Judge, Tiruppur. For Appellants : Mr. V.Raghavachari Senior Counsel for Mrs. V.Srimathi For Respondents : Mr. T.R.Rajagopalan 1 and 2 Senior Counsel for Mr. M.Sivavarthanan For Respondents : No Appearance. 3 and 4 S.A.No. 289 of 2022: 1.Shankar Jagannathan 2.Sridhar Jagannathan 3.Shalini Jagannathan ...Appellants Vs. 1.G.Balakrishnan 2.B.Renuka 3.B.Sathish 4.B.Sharmila 5.M.Mohana ...Respondents PRAYER: Second Appeal filed under Section 100 of CPC against Judgement and Decree in A.S.No.04 of 2021 dated 23.09.2021 on the file of the Principal District Judge, Tiruppur in reversing the well – considered Judgement and Decree in O.S.No.582 of 2001 dated 28.07.2020 on the file of the Additional Subordinate Judge, Tiruppur. For Appellants : Mr. V.Raghavachari Senior Counsel for Mrs. V.Srimathi For Respondents : Mr. T.R.Rajagopalan 1 to 4 Senior Counsel for Mr. M.Sivavarthanan For Respondent 5: Ms. K.M.Valsala. S.A.No. 552 of 2022: 1.P.Nanjathal 2.P.Senthilkumar 3.P.Rajesh Kumar 4.K.Rukmani 5.K.Suresh Kumar 6.K.Hari Prakash 7.V.Dhana Suganya ...Appellants Vs. 1.B.Satish 2.G.Balakrishnan 3.Shankar Jagannathan 4.Sridhar Jagannathan 5.Shalini Jagannathan ...Respondents PRAYER: Second Appeal filed under Section 100 of CPC against Judgement and Decree in A.S.No.2 of 2021 dated 23.09.2021 on the file of the Principal District Judge, Tiruppur in reversing the well – considered Judgement and Decree in O.S.No.194 of 2006 dated 28.07.2020 on the file of the Additional Subordinate Judge, Tiruppur. For Appellants : Mr. A.K.Sriram Senior Counsel for Mr. T.Balaji For Respondents : Mr. T.R.Rajagopalan 1 and 2 Senior Counsel for Mr. M.Sivavarthanan For Respondents : Mr. V.Raghavachari 3 to 5 Senior Counsel for Mrs. V.Srimathi S.A.No. 100 of 2023: Mohana ...Appellant Vs. L.Govindaraj (Died) 1..Shankar Jagannathan 2.Sridhar Jagannathan 3.Shalini Jagannathan 4.G.Balakrishnan 5.B.Renuka 6.B.Sathish 7.B.Shalini ...Respondents PRAYER: Second Appeal filed under Section 100 of CPC against Judgement and Decree in A.S.No.100 of 2020 dated 23.09.2021 on the file of the Principal District Judge, Tiruppur confirming the Judgement and Decree in O.S.No.582 of 2001 dated 28.07.2020 on the file of the Additional Subordinate Judge, Tiruppur. For Appellants : Ms. K.M.Valsala. For Respondents : Mr. V.Raghavachari 1 to 3 Senior Counsel for Mrs. V.Srimathi For Respondents : Mr. T.R.Rajagopalan 4 to 7 Senior Counsel for Mr. M.Sivavarthanan C O M M O N J U D G E M E N T This case highlights how unscrupulous litigants use the judicial process to get over Governmental controls enjoy the fruits of the decree and thereafter once again take recourse to the legal process to resort them to a position of status quo ante. 2. The above four appeals arise in respect of a Common Judgement passed in three suits. Given below are the details of the Second Appeals, their respective First Appeals and Suits which forms their genesis. Second Appeal First Appeal Suit S.A.No.251 of 2022 A.S.No.16 of 2021 O.S.No.413 of 2003 S.A.No.289 of 2022 A.S.No.2 of 2021 O.S.No.582 of 2001 S.A.No.552 of 2022 A.S.No.4 of 2021 O.S.No.194 of 2006 S.A.No.100 of 2023 A.S.No.100 of 2020 O.S.No.582 of 2001. 3. O.S.No.582 of 2001 was a suit filed by one Govindaraj against his son Balakrishnan and his wife and children family. The suit was one fil