Vs. Rajlakshmi & Ors  Insc 113 (6 March 2006)
Sema & Dr. Ar Lakshmanan H.K.Sema,J.
Prasad was ex-Minister and a retired Senior Judge of the High Court of Patiala.
He had an ancestral kothi known as `Nishkam' situated at 23, Bhupender Nagar Road, Patiala, Punjab. He had two sons, namely Sh. K.J. Khosla
and Sh. N. Khosla and three daughters namely Smt. Rajlakshmi (respondent No. 1
herein whose appeal stands abated), Smt. Nirmala and Smt. Saraswati. Since the kothi
was an ancestral property, Dewan Niranjan Prasad and his two sons were the
14.10.1956, Dewan Niranjan Prasad had gifted three plots of land forming part
of the kothi in its rear portion to his three daughters with the consent of his
wife Smt. Amar Devi and his two sons. The said gift was duly recorded in the
family year book known as "Dussehra Bahi." The said gift was
conditional and the condition was that the beneficiaries would construct houses
on the gifted plots and shall reside there.
said gift of plots to his three daughters was affirmed by Dewan Niranjan Prasad
through a registered deed on 10.6.1961. However, possession was not delivered.
In 1966 Smt. Saraswati died and was survived by her husband B.S. Talwani and
sons, respondent No.3.
none of the three daughters, to whom the plots were gifted, took possession and
constructed the houses, Dewan Niranjan Prasad revoked the Gift Deed and resumed
the plots with the express consent of his daughters, Smt. Rajlakshmi, Smt. Nirmala
and Sh. B.S. Talwani husband of late Smt. Saraswati and paid Rs. 10,000/- to
each of them in lieu of the said plots. Receipt of the amount as consideration
for resumption of the said plots was also duly acknowledged by each of the
beneficiaries. Thereafter, Dewan Niranjan Prasad partitioned the entire
property "Nishkam" (including the plots earlier gifted to his
daughters and then resumed by him) by allotting separate shares to his two
sons, namely, S/Sh.K.J. Khosla and N. Khosla. The oral partition was recorded
in writing in the memo of partition dated 6.12.1974. Dewan Niranjan Prasad died
on 15.1.1975 leaving behind his two sons, two daughters and legal heirs of late
Smt. Saraswati. After the death of Dewan Niranjan Prasad, a dispute arose
between his sons and daughters namely Smt. Rajlakshmi, Smt. Nirmala and legal
heirs of Smt. Saraswati regarding the rear part of the compound of the
ancestral kothi called "Nishkam". Parties to the dispute by mutual
consent and by an Arbitration Agreement dated 27.10.1978 referred the dispute
to the sole Arbitrator, Dewan Ram Kishan Khosla, Sr. Advocate. It appears that
on 22.1.1977, the respondents fraudulently managed to get the mutation of the
portion of the property in question recorded in the revenue records in their favour
showing Dewan Niranjan Prasad, who had expired on 15.1.1975 and Smt. Saraswati,
who had expired in 1966, as present and witnessing the said mutation.
Arbitrator examined the contentious issues presented from both sides and after
threadbare discussion delivered his award on 10.7.1979. The Arbitrator in his
award found inter-alia that the gift in question in favour of daughters was
revoked and the plots were resumed by late Dewan Niranjan Prasad with the
consent of the two daughters and Sh. B.S. Tawlani husband of Smt. Saraswati in
lieu of cash payment received by them. The Arbitrator also found that the
mutation in favour of the respondents was obtained by fraudulent means and
1.8.1979, S/Sh. K.J. Khosla and N. Khosla, the two sons of Dewan Niranjan
Prasad filed an application under Section 14 of the Arbitration Act, 1940 for
making the award a Rule of the Court. It appears that on 24.5.1981, notice of
the application was issued to the respondents who filed objections contending
inter-alia that the award dated 10.7.1979 created, declared, assigned, limited
or extinguished right, title and interest of the value of Rs. 100 and upwards
to or in immovable property and, therefore, the award was compulsorily registrable
under Section 17(1)(b) of the Registration Act, 1908 (hereinafter as 'the Act'
) and since the award was not registered, it could not be made a rule of the
Court. The Sub-Judge, by his order dated 25.5.1981 held that the award
purports/operates to extinguish the rights of the daughters and create/declare
rights, title and interest in the sons in immovable property, the value of
which was more than Rupees One hundred only and thus, it compulsorily required
registration under Section 17 of the Act. On this reasoning, the Sub-Judge
declined to make the award as a rule of the Court. Aggrieved thereby, the two
sons of Dewan Niranjan Prasad filed appeal before the Appellate Court, which
was dismissed on 8.8.1983 holding the same view. Thereafter, a civil revision,
namely revision No. 3064 of 1983 was preferred before the High Court, which was
dismissed by the impugned order on 8.1.2001. Hence, the present appeal.
High Court, in our view, erroneously dismissed the Civil Revision affirming the
orders passed by the Trial court and Appellate Court. The High Court dismissed
the civil revision with the following reasoning:
the award took
away some rights from the sisters by giving a declaration that the donees did
not comply with the condition of the gift and in this way, the sisters were
divested of some rights and those rights were created for the first time in favour
of the brothers by the award;
Arbitrator observed that the mutation of the land in favour of the daughters
was of no value, it cannot be said in such a situation that the award only
declared a pre-existing right in favour of the sons;
by the award
itself, an adjudication has been made by the Arbitrator that the gift created
by the father in favour of his daughters was not enforceable because it was
never accepted by the donees and it was never acted upon as per the conditions
of the gift. One of the conditions was that the daughters should construct
their houses. Thus, the document of award declares and creates rights in favour
of the brothers by taking it from the sisters and when those rights are created
in praesenti, then such document/award requires registration and such an award
without registration cannot be acted upon as it does not confer any right,
title or interest in favour of the brothers;
the rights were
created for the first time through the award itself and, therefore, this award
award is a declaration vide which certain rights of the Respondents were
extinguished and rights in favour of the Petitioner (and Respondent No. 5) were
created by making them the owners of the disputed plots by rejecting the defence
and contentions of the sisters and thus the award is squarely covered by the
provisions of Section 17(1)(b) of the Registration Act." During the pendency
of this appeal, an application was taken out for substitution of respondent No.
1 Smt. Rajlakshmi by her legal representatives. This Court, on 11.7.2005
rejected the substitution application on ground of delay. Accordingly, the
appeal stood abated as far as deceased respondent No. 1 is concerned.
Therefore, the question whether on abatement of the appeal in respect of
deceased respondent No. 1, the appeal is maintainable qua the other respondents
also poses for consideration.
questions posed for determination in this appeal are:
Whether with abatement of appeal in respect of deceased Smt. Rajlakshmi, the
whole appeal qua other respondents abated or not? B. Whether the award of the
Arbitrator dated 10.7.1999 purports or operates to create, declare, assign,
limit or extinguish in praesenti or in future any right, title or interest of
the value of one hundred rupees and upwards to or in immovable property which
requires registration under Section 17 (1)(b) of the Registration Act, 1908? A.
Abatement of appeal in respect of deceased Smt. Rajlakshmi &
maintainability of the appeal qua other respondents Mr. C.A. Sundram, learned
Senior counsel, appearing on behalf of the appellant strenuously contended that
the Gift Deed in respect of the daughters, which had been revoked, was distinct
and separate and therefore, the decree is distinctly and severally executable
on the abatement of appeal in respect of Smt. Rajlakshmi and, therefore, the
appeal qua other respondents does not abate and is maintainable. Per contra, Mr.Manish
Vasisth, learned counsel appearing on behalf of the respondents contended that
the issue is common and when the appeal against one of the respondents abated,
the whole appeal qua other respondents also abated.
answer this question, we may refer to the Gift Deed dated 14.10.1956 executed
by Dewan Niranjan Prasad. The aforesaid Gift Deed was entered in the Dussera Bahi
of the family. The partition portion of the Gift Deed in the Dussera Bahi reads
this auspicious occasion, on my behalf and on behalf of both brothers I offer
by way of present one piece of land in the rear portion of "Nishkam"
to all the three sisters, which has a breadth of three hundred feet. All three
sisters will get a front of 100 feet each. The length will be 150-160 feet i.e.
up to the contractor's hut, that is up to the middle of the rons (walk) on
which it stands. Bibi Saraswati's plot will be towards Narrn house, Nirmal's
towards Lola Atka Rao and Raj's in the middle." As already noticed, the Gift
Deed was revoked by a memorandum dated 10.5.1971 and the two daughters and
husband of the deceased daughter were paid Rs. 10,000/- each in lieu of the
plots. It appears from the record that on 2.9.1971 Smt. Rajlakshmi and Sh. B.S.
Talwani, husband of Smt. Sarswati had written a letter to Dewan Niranjan Prasad
that they have received the full amount of Rs. 10,000/- as their share.
facts, as adumbrated above, would clearly show that each of the daughters had a
distinct and separate share by metes and bounds and also that each one of them
had received Rs. 10,000/- in lieu of the plots of land and therefore, it cannot
be held that abatement of respondent No. 1 would abate the appeal qua the other
Amarjit Singh Kalra (Dead) by LRs. (appellant) v. Pramod Gupta (Smt.)(Dead) by LRs.
& Ors. (respondents) (2003) 3 SCC 272 a Constitution Bench of this Court,
after considering various decisions held, at page 305 SCC, that whether an
appeal partially abates on account of the death of one or the other party on
either side has to be considered depending upon the fact as to whether the
decree obtained is a joint decree or a severable one. It was further held that
in case of a joint and inseverable decree if the appeal abated against one or
the other, the same cannot be proceeded with further for or against the
remaining parties as well. If otherwise, the decree is a joint and several or
separable one, being in substance and reality a combination of many decrees,
there can be no impediment for the proceedings being carried with among or
against those remaining parties other than the deceased. Finally, this Court
held in paragraph 34, at page SCC 307 as under:
"In the light of the above discussion, we hold:-
plaintiffs or appellants or petitioners are found to have distinct, separate
and independent rights of their own and for purpose of convenience or
otherwise, joined together in a single litigation to vindicate their rights the
decree passed by the Court thereon is to be viewed in substance as the
combination of several decrees in favour of the one or the other parties and
not as a joint and inseverable decree. The same would be the position in the
case of defendants or respondents having similar rights contesting the claims
different and distinct claims of more than one are sought to be vindicated in
one single proceedings as the one now before us, under the Land Acquisition Act
or in similar nature of proceedings and/or claims in assertion of individual rights
of parties are clubbed, consolidated and dealt with together by the Courts
concerned and a single judgment or decree has been passed, it should be treated
as a mere combination of several decrees in favour of or against one or more of
the parties and not as joint and inseparable decrees.
The mere fact
that the claims or rights asserted or sought to be vindicated by more than one
are similar or identical in nature or by joining together of more than one of
such claimants of a particular nature, by itself would not be sufficient in law
to treat them as joint claims, so as to render the judgment or decree passed
thereon a joint and inseverable one.
The question as
to whether in a given case the decree is joint and inseverable or joint and
severable or separable has to be decided, for the purposes of abatement or
dismissal of the entire appeal as not being properly and duly constituted or
rendered incompetent for being further proceeded with, requires to be
determined only with reference to the fact as to whether the judgment/decree
passed in the proceedings vis-a-vis the remaining parties would suffer the vice
of contradictory or inconsistent decrees. For that reason, a decree can be said
to be contradictory or inconsistent with another decree only when the two
decrees are incapable of enforcement or would be mutually self-destructive and
that the enforcement of one would negate or render impossible the enforcement
of the other." In the case of Shahazada Bi and Ors. v. Halimabi (since
dead) By her LRs. (2004) 7 SCC 354, during the pendency of the suit, defendant
No. 4 had died. This Court, after considering various decisions of this Court
on the provision of Order 22 Rule 4 C.P.C., held that the Rule does not provide
that by the omission to implead the legal representatives of a defendant, the
suit is abated as a whole.
Court further held that whether the defendant represented the entire interest
or only a specific part is a fact that would depend on the circumstances of
each case. If the interests of the co-defendants are separate, as in case of
co- owners, the suit will abate only as regards the particular interest of the
that case the 4th defendant, who died on 8.5.87, was in possession of one of
the seven rooms, which were let out to defendant No. 5. The trial court found
different rooms to be in possession of different defendants who claimed to be
tenants- in-common in possession of each of the seven rooms and therefore, in
those circumstances, this Court held that the death of the 4th defendant would
not abate the suit qua the other defendants.
counsel for the respondents relied on the decision of this Court in Badni
(Dead) by LRs. & v. Siri Chand (Dead) by LRs. & Ors. (1999) 2 SCC 448.
In that case the fact of adoption of one Ratan Singh, plaintiff was the common
issue. The High Court dismissed the appeal on the ground that the legal heirs
of one Shiv Lal, one of the appellants, were not brought on record. The High
Court was also of the view that on abatement of Shiv Lal's appeal, other
appeals also stood abated because of the common issue regarding the adoption of
the plaintiff's pre-deceased interest (Ratan Singh). There cannot be two
conflicting decrees. The adoption issue being common and decisive in all the
appeals pending before the High Court, dismissing one appeal alone on the
ground of abatement and allowing the other appeals on merits might result in
conflicting decrees in case other appeals are accepted on merits. The facts of
that case are not applicable to the facts of the case at hand. Here, no common
issues among the sisters arise because as already said all the sisters had
different and distinct share by metes and bounds.
the said decision is of no assistance to the respondents.
counsel for the respondents also referred to the decision in Pandit Sri Chand
& Ors. v. M/s. Jagdish Parshad Kishan Chand & Ors. (1966) 3 SCR 451. In
that case the parties agreed to the decree jointly and severally and Basant Lal,
one of the appellants died on 18.10.1962. The counsel also referred the case in
Ram Sarup & Ors. v. Munshi & Ors. AIR 1963 SC 553 in which case the
issue was a pre-emption decree which was indivisible. Both these cases are not
applicable to the facts of the case in hand.
facts and circumstances of the present case and the well settled position of
law, as referred to above, we are of the view that the abatement of appeal in
respect of Smt. Rajlakshmi would not abate the appeal qua other respondents. We
hold that the appeal qua other respondents is maintainable.
Whether the award of the Arbitrator dated 10.7.1999 purports or operates to
create, declare, assign, limit or extinguish in praesenti or in future any
right, title or interest of the value of one hundred rupees and upwards to or
in immovable property which requires registration under Section 17 (1)(b) of
the Act? We may first notice the provisions of Section 17(1)(b) of the Act:
Documents of which registration is compulsory.-
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 No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian
Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came
or comes into force, namely:-
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;
(emphasis supplied) Clause (b) of Section 17(1) enjoined registration of 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. This section speaks of creating rights or
extinguishing rights in praesenti or in future. Any right created or
extinguished in the past is conspicuously absent. The creation of any right or
extinguishment of any right is expressly excluded by the Act itself.
contended by Mr. Sundram, learned Senior counsel for the appellant that the
award of the Arbitrator does not create any right or extinguish any right in praesenti
or in future. He further submitted that the award of the Arbitrator noticed the
pre-existing facts of a Gift Deed dated 14.10.1956 registered on 10.6.1961 and
the revocation of Gift Deed on 10.5.1971 and payment of consideration amount
received in lieu of gift of plot. He, therefore, argued that by no stretch of
imagination it can be held that the award created any rights or extinguished any
rights in praesenti or in future which would require registration under the
Act. Per contra, learned counsel for the respondents contended that the award
created rights in favour of the sons and extinguished the rights of the
daughters in the immovable property and therefore, the award would require
registration under the Act.
answer this question, it would be necessary to examine the award of the
we examine the award of the Arbitrator, we may at this stage notice the mutual
agreement entered into between the parties referring the dispute to the
Arbitrator. The dispute, which was referred to the Arbitrator by the parties,
was with regard to Gift Deed and the resumption of the property gifted in favour
of his three daughters Smt. Rajlakshmi, Smt. Nirmala and Smt. Sarsaswati
survived by her husband, B. C. Talwani. After the parties filed the written
statements and documents in support of their respective claims, the Arbitrator
framed the following issue:
the gift of the three plots in favour of the daughters still stand and was not
revoked and the plots were not resumed by their father?" The Arbitrator,
after examining the issues, came to the following conclusion:
That the gift
was made in 1956 on condition that the daughters would build houses and settle
there. No houses were built during this long period. Even the possession was
neither delivered by the donor nor was possession taken by the donees. A
document dated 10.05.1971, Ex. K-5 is clear.
That the gift
was not acted upon even the Gift Deed remained in possession of the donor,
their father throughout.
That Dewan Niranjan
Prasad the donor revoked the gift and resumed the three plots at the instance
and with the consent of the donees, the daughters, who agreed to the resumption
of the plots on the ground that the plots were not of any remuneration value
and agreed to convert the plots into cash. They accepted the cash in lieu of
the plots as mentioned in Ex. K04 and Ex. K-5 and in written statements.
Smt. Nirmala's plea
that Rs. 5000/- were paid back to her on account of the loan, advanced by her
husband to Naval her brother, has not been substantiated. She did not mention
in her letter dated 17.08.1973 Ex. K-2, that it was a loan. The other item of Rs.
5,000/- has also not been proved that it was due to her otherwise.
The mutation of
the land in favour of the daughters has no value. The entries are wrong. Dewan Niranjan
Prasad and Smt. Saraswati, who are recorded as present, had died long before
the mutation was sanctioned. No notice appears to have been issued to any
execution of the Memorandum of Partition, which is a subsequent act of the Late
Dewan Niranjan Prasad, impliedly shows also that the gift to the three
daughters was revoked.
my award in favour of Shri Krishen Jiwan and Shri Naval Jiwan and hold that the
gift was revoked and plots were resumed by the Late Dewan Niranjan Prasad at
the instance and with the consent of the second part in lieu of cash payment
received by them." The award of the Arbitrator, as quoted above, would
clearly show that by the award the Arbitrator simply recorded the finding on
the basis of the pre-existing facts, namely, the Gift Deed, the revocation of
the gift and the partition of the property between his sons subsequent to the
revocation of Gift Deed. It is a declaration of pre-existing rights. It neither
creates any right nor extinguishes any right in praesenti or in future. What
Section 17(1)(b) of the Act requires is the creation of rights by decree in praesenti
or in future. In the present case the award of the Arbitrator, as noted above,
clearly delineated the pre-existing facts, on the basis of which the award was
Capt. (Now Major)Ashok Kshyap (appellant) v. Mrs. Sudha Vasisht & anr. (respondents)
AIR 1987 SC 841, the award of the Arbitrator, though declared the share of the
parties in the property, it created a right by itself, in favour of one party
to get particular sum from another party and right to obtain the payment and on
payment the obligation of relinquishment of right or interest in the property.
This Court held on an analysis of the award that it did not create any right in
any immovable property and as such it was not compulsory to register it.
Court in the case of Sardar Singh v. Krishna Devi (Smt.) and Anr. (1994) 4 SCC
18 held in paragraph 12 page 26 (SCC) as under:
is, thus, well settled law that the unregistered award per se is not
inadmissible in evidence. It is a valid award and not a mere waste paper. It
creates rights and obligations between the parties thereto and is conclusive
between the parties. It can be set up as a defence as evidence of resolving the
disputes and acceptance of it by the parties. If it is a foundation, creating
right, title and interest in praesenti or future or extinguishes the right,
title or interest in immovable property of the value of Rs. 100 or above it is cumpulsorily
registrabie and non- registration render it inadmissible in evidence. If it
contains a mere declaration of a pre-existing right, it is not creating a
right, title and interest in praesenti, in which event it is not a compulsorily
registrable instrument. It can be looked into as evidence of the conduct of the
parties of accepting the award, acting upon it that they have pre- existing
right, title or interest in the immovable property.
supplied) To buttress his contention, learned counsel for the respondents has
referred to the decision of this Court in Ratan Lal Sharma v. Purshottam Harit
(1974) 1 SCC 671.
case the award expressly created or purported to create rights in immovable
property in favour of the appellant, which required registration. This is not
the position in the facts of the present case.
at the award of the Arbitrator and the law laid down by this Court the
arguments of learned counsel for the respondents that the award created any
right or extinguished any right in praesenti or in future which would require
registration under the Act is noted only to be rejected.
result, all the decisions of the courts below are patently erroneous and are
set aside. This appeal is allowed.
award of the Arbitrator is made the Rule of the Court.
clear from the record that Dewan Niranjan Prasad died on 15.1.1975 and Smt. Saraswati
also in 1966. The respondents fraudulently obtained mutation on 22.1.1977
showing Dewan Niranjan Prasad and Smt. Saraswati as present. Fraud clocks
avoids all judicial acts. A decree obtained by playing fraud is a nullity and
it can be challenged in any court, even in collateral proceedings. (See S.P. Chengalvaraya
Naidu (Dead) By LRs. V. Jagannath (Dead) by LRs. & Ors. (1994)1 SCC 1.
open to the appellant to file a suit against the legal heirs of Smt. Rajlakshmi,
whose appeal has been abated. If the suit is filed within two months from
today, it shall not be dismissed as being barred by limitation. With the
aforesaid directions, the appeal is allowed. Parties are asked to bear their