I (2014) CLT 14C (CN) (P & H)

PUNJAB AND HARYANA HIGH COURT

K. Kannan, J.
SUKHDEVI (SINCE DECEASED, THROUGH HER LRS.)Appellant
versus
RAM PIARI (SINCE DECEASED, THROUGH HER LRS.)Respondent
Regular Second Appeal No. 2434 of 1984 (O & M)Decided on 8.1.2014
JUDGMENT
K. Kannan, J.The plaintiff whose suit was dismissed by Courts below is the appellant in
this Court. The suit is at the instance of the daughter against her mother and her sister. The suit
had been filed for a declaration that a decree obtained in Civil Suit No.164 of 1979 titled Ram
Piari v. Sukh Devi and Others was null and void, bogus, inoperative and not binding on the
plaintiff. The property originally belonged to father Maru. Marus widow is Ram Piari the Ist
defendant. The Ist defendant had two daughters, who were the plaintiff and the 2nd defendant. It
appears that civil suit had been filed by Ram Piari and her daughters suit against Maru when the
latter admitted the plaintiffs in the said suit as entitled to 1/4th share. The Civil Suit No.551 of
1976 was with reference to 1/4th share each for the three plaintiffs of agricultural land in 173
kanals 14 marlas in certain specified khatauni numbers and killa numbers. The decree was
obviously collusive and no defence was taken and allowed for the plaintiffs 1/4th share. A
subsequent suit filed in Civil Suit No.385 of 1977 had been at the instance of Ram Piari against
her husband for the very same relief in respect of the very same subject matter that Ram Piari
was entitled to 1/4th share. A subsequent suit has been filed on 2.9.1977 and again as per the
statement of parties, Ram Piari alone had been granted the decree for 1/4th share. The 3rd suit
has been filed in Civil Suit No. 164 of 1979 by Ram Piari against both the daughters and they
have admitted to the plaintiffs claim and allowed for declaration that the mother Ram Piari was
entitled to a share. The validity of the decree in Civil Suit No. 164 of 1979 alone is in
challenge and it is imperative that we examine the effect of the frame of the suit and the validity
of the decree obtained under it.
II. The source of right for the plaintiff
2. The suit was for declaration to the effect that the plaintiff Ram Piari was the owner in
possession of the agricultural land to the extent of 1/2 share which had been given to the
defendants equally by Maru excluding the land sold by the plaintiff out of the total agricultural
land of 173 kanals 14 marlas. The copy of the plaint has been filed as Ex.D3 and it reads that
Maru was the owner in possession of the suit land in the heading of the plaint and he died about
2 to 3 months earlier. The averment in the plaint reads that Maru had allowed for 1/4th share to
each of his daughters during his lifetime and had given the remaining half share to his widow.
The plaint reads that after the lifetime of Maru, daughters demanded their share from the
plaintiff in whose possession the whole of the estate of Maru had been held since the Month of
January 1989. The plaint would record that there had been disputes between the parties and by
virtue of the admission by the daughters, a family settlement had been entered into, under the
terms of which, the defendants admitted that they would transfer their share in the suit land in
the name of the plaintiff on an understanding that after the death of the plaintiff, they would get
the land divided equally between them. The plaint further recites that there is one baby girl of 1
 year of age with the plaintiff who was under the care and protection of the plaintiff and had
to be married in future. The prayer in the suit was, therefore, that the plaintiff (in that suit) was
entitled to a share in all the properties measuring 173 kanals 14 marlas after excluding the
property sold.
III. Plaintiffs original entitlement to 1/4th share cannot be denied either as a heir to father or
as a beneficiary of earlier decree; compromise decree was itself an intrinsic admission of such
fact
3. The way that three suits have come about make it clear that the suits were devices to get
over the stamp law and registration formalities. If the father had allowed for 1/4th share each to
be given to his daughters and a like 1/4th share to be given to the wife through the decree in
Civil Suit No.551 of 1976 and followed it up with another 1/4th share to his wife in Civil Suit
No.385 of 1977, without minding the validity, it would seem that Maru wanted 1/2th share to be
taken by his wife and 1/4th share each to be taken by the daughters. The 3rd suit No. 164 of
1979 would take away even the properties which were handed over to the daughters for 1/4th
share in as much as the share that the daughters together were entitled to, were said to be
required to be transferred again by means of a family settlement to the mother in order that they
will take back their respective 1/4th share after her lifetime. It is the last suit under which the
plaintiff was required to acknowledge the alleged right of the mother as a transferee of her 1/4th
share which is challenged in suit. This ought to be taken as intrinsic admission of the plaintiffs
original entitlement to a 1/4th share and the present endeavor shall only be to see if such a right
could be lost in the manner secured under the compromise decree and re-claimed by the
plaintiff.
IV. Finding that the plaintiff was a signatory to compromise is affirmed
4. Since the plaintiff claimed that she had never appeared in Court nor did she acknowledge
the mothers entitlement to her 1/4th share, the thumb impressions of the plaintiff Sukh Devi
had been taken and sent to an expert who was examined as DW6. He gave evidence to his report
as DW6/10 that the thumb impressions found in the statement and the compromise were the
same as the admitted thumb impression and that they belonged to the same person. As a matter
of fact relating to the genuineness and the identity of the thumb impression, I will not find any
reason to modify the finding. The trial Court had actually held that the plaintiff herself could not
have been present in Court. This was not accepted by the appellate Court and I am prepared to
take reversal of the finding rendered by the appellate Court regarding the presence of the
plaintiff as established and that she had admitted the claim of the plaintiff in Court.
V. Vested right in property cannot be lost oral settlement or affirmed through unregistered
compromise
(a) Invalidity of compromise to be tested not by separate suit but shall be adjudicated
before the decree by objection; principle not applicable to declaratory action that
makes decree unlawful or otherwise invalid.
5. Mere presence of the plaintiff in Court or admissions cannot, in my view, conclude the
issues which are raised in appeal as substantial questions of law. To a contention on behalf of
the appellant that her right in the property which she inherited from her father and which was
acknowledged through the decree obtained earlier in the presence of the father cannot be lost by
a subsequent arrangement giving up her right otherwise than through registered instrument. The
 learned Counsel for the respondent argues that the suit itself was incompetent. A
compromise decree that was passed in the presence of parties, who had given voluntary
statements in Court cannot allow for anyone of them to resile from the same and get the same
annulled by means of a suit. The counsel would rely on a judgment of the Supreme Court in
Pushpa Devi Bhagat (D) through LR Smt. Sadhna Rai v. Rajinder Singh and Others, AIR 2006
SC 2628 to contend that neither an appeal under Section 96 CPC against consent decree possible
in view of the bar for an appeal under Section 96(3) CPC nor was an independent suit for setting
aside the compromise on the ground that a compromise was bad in law possible in view of the
bar contained under Order 23 Rule 3-A. The Supreme Court was holding that the consent decree
operated as an estoppel and was valid and binding unless it was set aside by the Court which
passed the consent decree by an order of an application filed under the proviso of Order 23 Rule
3 CPC. The Court was holding that the only remedy available to a party to a consent decree was
to avoid such consent decree by approaching the Court which recorded the compromise and
made a decree in terms of it and established that there was no compromise and in that event, the
Court which recorded the compromise would itself consider and decide the question of whether
there was a valid compromise or not. This is to bring home the point that a separate suit filed by
the plaintiff that the compromise was not binding was barred under Order 23 Rule 3-A CPC.
The counsel would also refer me to a Division Bench ruling of this Court in Wassan Singh and
Others v. Lakha Singh and Another, 2005 (2) CCC 772 that held that the Court has inherent
power to recall the compromise when any vitiating circumstances were shown to exist in the
application filed under Order 23 Rule 3 itself and a separate suit cannot be maintained. A bar to
a separate suit was also reiterated referring to the judgment of the Supreme Court and the
subsequent Division Bench ruling in Smt. Shanti Devi (dead) represented by LR v. Gian Chand,
2008 (2) PLR 393. The principle of law enunciated would be applicable in all cases where the
decree could be supported if not set aside and taint of invalidity is not mounted on grounds of
violation of any law which could independently render ineffective such a compromise decree.
That is precisely the area that we are treading in this case.
(b) There could be no estoppel against statute, namely of registration, stamp and
contract law.
6. In this case, the suit is filed contending that the plaintiff is the owner of 1/4th share and
she was entitled to be put in possession. She was also contending that the decree was brought
about by fraud and impersonation and not binding on her. If the invalidity of the decree was to
be seen only through the alleged vitiating circumstances, then the plaintiffs suit cannot be
maintained. However, if the validity of the compromise decree is attacked on the ground that
there could be no such lawful compromise, then the principle of estoppel must be seen and
applied within the four corners of Section 115 of the Evidence Act. An estoppel in order that it
is valid shall allow for a statement express or implied to be made by a person on the basis of
which another person acts and alters his position. The known exceptions are that there could be
no estoppel against statute. Another exception could also be that a statement made on a mistaken
assumption cannot bind the party and operate to debar from resiling from it and pointing out to
the mistaken assumption. Since the principle of estoppel is taken against the plaintiff, the
position of law as laid down by the Supreme Court in several decisions may just be outlined that
there could be no estoppel against statute (see: State of Punjab v. Nestle India Limited, 2004 (6)
SCC 465. In Indira Bai v. Nand Kishore, 1990 (4) SCC 668, the Supreme held, exception to
 the universal rule of estoppel under Section 115 or its non-availability is not due to absence
of any provision in the act excluding its operation but welfare of society or social and general
well-being. There can be no estoppel against statute. Equity, usually follows law. Therefore, that
which is statutorily illegally and void cannot be enforced by resorting to the rule of estoppel.
Such extension of rule may be against public policy. The distinction between validity and the
illegality or the transaction being void is clear and well known. The former can be waived by
express or implied agreement or conduct but not the latter. The same principle was reiterated in
a later judgment in Sneh Gupta v. Devi Sarup, 2009 (6) SCC 194. There is a large volume of
case law on the subject but I will not find it necessary to reproduce them but would remind the
party that it will be futile to argue that the plaintiff would be estopped from laying a claim to the
property by voluntarily suffering a statement in Court.
(c) Compromise offends registration, stamp and contract laws.
7. To my mind, the averments in the plaint filed by the mother in the civil suit on the basis
of which, her decree was obtained itself ought to be taken as a relevant circumstance to discredit
the validity of the compromise. The vitiating circumstance is just not that the plaintiff did not
know what the documents contained. The vitiating circumstance is what the law prohibits. In the
plaint filed by the mother that gave rise to a compromise decree, she was seeking for a share
(apart from the share which she had already got under two decrees: one, through 1/4th share
granted along with the daughters in the first suit in 551 of 1976 and another 1/4th share in suit
instituted by Ram Piari against her husband in 385 of 1977). It was the 1/4th share each which
the daughters obtained in 551 of 1976 that was again sought to be taken back by the mother
through a transfer made in the alleged family settlement. The expressions used in the plaint
which is filed by the defendants themselves as D3 reads thus:
....... The defendants admitted the settlement to the extent that they would transfer their
share in the suit land in the name of the plaintiff on the term that after the death of the
plaintiff they would get the suit land equally along with it the land in share of the
plaintiff also (sic).
The alleged family settlement was therefore purported to be a transfer which the plaintiff
was making along with their sister in favour of the mother. Such a transfer cannot be made in
respect of immovable property otherwise than through a registered document under Section 17
of the Registration Act. A family settlement amongst coparceners who had a pre-existing right
and securing to each person a share in the property could be by means of an oral settlement and
the fait accompli on such oral settlement recorded in the unregistered instrument. However a
share which a family member has in immovable property cannot be forfeited to another member
of the family by an oral settlement or a written instrument which is unregistered. Section 17(b)
of the Registration Act requires every non-testamentary instrument which operates to create a
transfer extinguish title to the property whether in present or in future of a proper of the value of
`100/- and upwards only put through a registered instrument. The section reads:
17. Documents of which registration is compulsory.(1) The following documents
shall be registered, if the property to which they relate is situate in a district in which,
and if they have been executed on or after the date on which, Act XVI of 1864, or the
Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of
1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into
 force, namely
(a) ...
(b) other non-testamentary instruments which purport or operate to create, declare,
assign, limit or extinguish, whether in present or in future, any right, title or
interest, whether vested or contingent, of the value of one hundred rupees and
upwards, to or in immovable property.
There could have been no valid oral settlement or otherwise that can extinguish the plaintiff
1/4th share which she would inherit through her father and whose right was recognized by her
father during his lifetime. There could also be no transfer of property title by mere admission as
held by the Supreme Court in Ambika Prasad Thakur v. Ram Ekbal Rai, AIR 1966 SC 605. The
plaintiff could not have transferred the right to the property by an oral admission in favour of the
mother. A decree that purported to record such a fact also cannot be valid to take away her
interest in the property.
8. The effect of a decree which purports to transfer a right in the property was also
considered in Bhoop Singh v. Ram Singh Major, 1995 (5) SCC 709. The Court was considering
the need for compulsory registration of a decree where a decree including a compromise talk
that created a new right, title or interest in praesenti in immovable property of value of `100/- or
above was also to be compulsorily registrable. The exception under Section 17 (vi), the Supreme
Court held that was meant to cover was a decree or order of a Court including a decree or order
expressed to be made on a compromise that declared a pre-existing right that did not by itself
create a new right, title or interest in praesenti in immovable property of value of `100/- or
upwards. Any other view, the Supreme Court ruled would find a mischief of avoidance of
registration which required payment of stamp duty, embedded in the decree or order. The Court
cautioned that it would be the duty of the Court to examine in each case whether the parties have
a pre-existing right to the immovable property or whether under the order or decree of the Court,
one party having right, title or interest agreed or suffered to extinguish the same and create a
right in immovable property of the value of `100/- to the other party for the first time.
9. Applying the principle, referred to above, the mother Ram Piari had secured to herself a
1/4th share through a decree along with their daughters when the husband recognized each of
the daughters and the wife to have 1/4th share. Through a subsequent decree, the husband had
again suffered 1/4th share to be given to Ram Piari. It is doubtful whether the husband could
have created such an interest in favour of the wife through such a subsequent decree for that
decree would also suffer by the same flaw which we are pointing out in this case. However that
is not the issue before us because the present plaintiff is a claim to the property which her father
had left to her during his lifetime and which was sought to be taken away from her through an
alleged family settlement when she was required to transfer her right through a family
settlement. The mother had no other pre-existing interest in the very same property. Her interest,
if at all, was in respect of the other share. She had no interest in the daughters 1/4th share.
Such a 1/4th share could not have been lost through an alleged compromise decree without
registration and without any consideration. Applying this principle even an alleged oral
agreement in the village that she will give up her 1/4th share in favour of the mother and suffer a
decree cannot constitute an estoppel against her.
VI. Disposition
 10. Before parting, I must record the fact that it is a repeated theme in our Courts that
members of family show up in Courts to admit to averments in the plaint of oral family
settlements and suffer decrees. Such a decree would be challenged by some other member in the
family who was not a party as not binding on him. This litigation will go up all the tiers of
adjudicatory bodies from the lowest in the rung to the highest Court in the country. Nobody
could wish away suits nor is there any need to fetter the access to Courts. There needs to be
vigilance between maintaining the distinction between lawful family settlements that adjust
mutual rights by specific allotments equitably that could be oral, so long as oral partition is not
barred by law and a family settlement orally or through an unregistered document to extinguish
title to immovable property. The former is legal and the latter is unlawful. May be, there is a
need for change of law in this direction and the lawmakers must catch the wind for a legislative
initiative to ban all partitions otherwise than through registered instruments. I shall not be seen
to exceed the brief or breach the golden line of separation of powers and stay confined to
interpret law and undertake an exercise that falls in the legislative domain. I am merely
recording the need of our times to stem the rot of untenable actions at the root and precious time
of the Courts is not lost by vexatious and untenable actions. Empowerment of women through
property rights will take a serious beating if her right to the property is broken by a fragile,
fraudulent family arrangement. There shall be never any doubt that willful surrender of rights in
immovable property of a sharer to another, which in legal parlance would amount to a transfer,
is not done otherwise than through a written instrument and the Courts shall not grant its
imprimatur to such collusive decrees. The invalidity of the compromise decree which I find in
this case is the invalidity on account of what is legally impermissible under the Registration Act,
stamp law requiring settlements to be written on stamp papers, Evidence Act marking exception
to principle of estoppel to operate against statute and contract law of invalidity of contract or
settlement for want of consideration. The judgment of the Court below is set aside and the
second appeal is allowed with costs. Counsels fee `10,000/-.
Second Appeal allowed.