Judgement

HANSARIA, J.:- The petitioner is one of the defendants in the suit out of which the present special leave petition arises. The plaintiffs are heirs of one Nand Ram, who is one of the five sons of one Jeevan Ram. The petitioner belongs to the branch of Rakha Ram, another son of Jeevan Ram. Ganpat was a son of Nanha Ram, still another son of Jeevan Ram.

2. The petitioner filed, at one point of time, suit No. 215 of 1973 which came to be disposed of on 6-4-1973 as below :

"it is ordered that a declaratory decree in respect of the property in suit fully detailed in the heading of the plaint to the effect that the plaintiff will be the owners in possession from today in lieu of the defendant after his death and the plaintiff deserves his name to be incorporated as such in the revenue papers, is granted in facuur of the plaintiff against the defendant, in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct. Pleaders fee fixed Rs. 16/-. It is further ordered that there is no order as to costs."

(Emphasis supplied) 198

Thereafter nothing much happened, till the present suit was filed claiming one-third share in the suit land as heirs of Jeevan Ram. The petitioner contended that in view of the aforesaid order passed in Suit No. 215 of 1973, the dispute does not survive and he alone is entitled to be in possession of the suit land. The trial court held that the aforesaid decree was against law and facts. The appeal of the petitioner was dismissed by the District Judge; so too, the second appeal by a learned single Judge of the High Court, whose judgment has been impugned in this petition.

3. A perusal of the impugned judgment shows that among other reasons to decide the present proceeding against the petitioner, one was that the aforesaid decree not having been registered, the same could not have conferred any right on the petitioner. It is this view of the learned Judge which has been principally assailed in this petition.

4. Shri Sehgal appearing for the petitioner has strenuously contended that the aforesaid view is not tenable in law inasmuch as, according to learned counsel, the decree is not required to be registered in view of what has been stated in Clause (vi) of sub-section (2) of Section 17 of the Registration Act, 1908. The learned Judge of the High Court did not agree to this contention because, according to him, the decree has to be treated " to create a gift" which would take the case out of the purview of the aforesaid clause, because that is to apply only to Clauses (b) and (c) of sub-section (1), whereas the present case would attract Clause (a) of sub-section (1). Shri Sehgal contents that the view taken by learned Judge was not correct in law as, according to him, the persent is really not a case attracting Clause (a) of sub-section (1), but the case of the petitioner falls within Clause (b), which would make Clause (vi) of sub-section (2) operative.

5. In support of his submission, the learned counsel has referred us to number of decisions starting from that of the Privy Council in Rani Hemanta Kumari Debi v. Midnapur Zamindari Co. Ltd., (1919) 46 Ind App 240 : (AIR 1919 PC 79), whose ratio was relied upon by this Court in Mangan Lal Deoshi v. Mohammad Moinul Haque, 1950 SCR 833, (AIR 1951 SC 11). In these two cases it was held that the decree in question was not required to be registered because, in the first case, the compromise was accepted to be" an agreement to lease", whereas in the second case the facts disclosed that the agreement was contingent, and so, no lease came into existence. It was, therefore, held that the cases did not come within the fold of Clause (d) of sub-section (1) of Section 17, and so, the Courts order was not required to be registered. These cases are thus of no assistance to the petitioner.

6. Shri Sehgal has then referred us to Bishundeo Narain v. Seogeni Rai & Jagernath, 1951 SCR 548 and Shanker Sitaram Sontakke v. Balkrishna Sitar