MANJU DEVI Vs. BISHAN SARUP GUPTA

JUDGEMENT

(1.) This is plaintiffs' appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of fact recorded by both the Courts below holding that the consent decree dated 18-1-1995 (Annexure P 15) suffered by the plaintiff-appellant Srnt Manju Devi wife of Shri Dwarka Parshad did not suffer from any illegality nor it lequired registration as per the provisions of Section 17 of the Registration Act. 1908 (for brevity 'the Act') The question raised in the appeal is whether the consent decree suffered by the plaintiff-appellant recognised pre-existing rights or it extinguished or created new proprietary rights within the meaning of Section 17(l)(b) of the Act

(2.) Facts which are necessary for disposal ot the controversy raised in the instant appeal are that the plaintiff-appellant filed a suit for joint possession against defendant- respondent Nos 3 to 5 Her simple case was that the suit land was purchased by her along with defendant-respondent No 2 Smt Laxmi Devi jointly The plaintiff-appellant and defendant respondent No 2 are the wives of real brothers namely S/Shri Dwarka Parshad and Bishan Sarup Gupta respectively She claimed that she had been under the influence of defendant-respondent No 1, who is the elder brother of her husband and defendant-respondent No 2, who is her sister in law (jethani) On the pretext of getting the land partitioned she was taken by defendant-respondent No 1 to the Court where her signatures were obtained on the pretext of partition of property between her and defendant-respondent No 2 However, she later realised that the defendant respon dent No 1 had obtained a decree in his favour by using those papers on 18-1-1995, in respect of her share in the suit land In pursuance to the decree, mutation No 1330 has also been got sanctioned by defendant- respondent No1 in his favour on the ground that the aforementioned decree and mutation did not create any interest or title in favour of the defendant-respondents and the decree and mutation were liable to be declared as void The additional ground taken was that the consent decree dated 18-1-1995 required registration under Section 17 of the Act as it created proprietary right for the first time in favour of defendant-respondent No. 1. The subsequent sale deeds executed by defendant-respondent No. 1 in favour of defendant-respondent Nos. 3 to 5 have also been challenged because once defendant-respondent No. 1 is not the owner of the land which was the subject-matter of decree dated 18-11-1995 then he could not have passed any valid title to defendant-respondent Nos. 3 to 5.

(3.) Defendant-respondent No. 1 contested the suit and asserted that various properties were purchased in the name of plaintiff-appellant, her husband Dwarka Parshad and defendant-respondent Nos. 1, 2 and Manish Khandelwal jointly as well as severally. Some dilferences between the parties developed and the joint property purchased by the aforementioned parties was partitioned in order to avoid any future controversy. The aforementioned partition of the joint Hindu family property has been acknowledged by virtue of Memorandum of Understanding dated 5-12-1994. According to that partition, defendant-respondent Nos. 1 and 2 became exclusive owners of the properties allocated to them and the plaintiff-appellant along with her husband Dwarka Parshad became the exclusive owners of the other properties. It was claimed that in such a situation the provisions of the Act did not provide for compulsory registration of the transfer deed. The allegations of undue influence against defendant-respondent No. 1 and any foul play on his part have been denied and it is claimed that the proceedings before the Civil Judge at Gurgaon were valid as the plaintiff-appellant herself appointed her Lawyer, made statement in the Court relinquishing her share in the suit property in view of the partition and Memoradum of Understanding. The written statement was filed by her through her counsel Shri R.P.Kaushal, Advocate in which the claim made by the defendant-respondent No. 1 in the plaint was admitted. On the basis of the decree dated 18-1-1995 passed in civil suit No. 741 of 1994, defendant-respondent No. 1 had become the owner of the share in the suit property which earlier belonged to plaintiff-appellant and, therefore, he had every right to transfer the same to the defendant-respondent Nos. 3 to 5. Defendant-respondent Nos. 3 and 4 also filed their separate written statements.