2022 Supreme(SC) 642

SUPREME COURT OF INDIA
K.M. JOSEPH, HRISHIKESH ROY, JJ.
S. Kuldeep Singh and Another – Appellants
Versus
S. Prithpal Singh – Respondent
Civil Appeal No. 81 of 2011
Decided On : 02-08-2022

IMPORTANT POINTS
(1) Consent terms creating rights/title or interest for first time, as distinguished from recognition of a right, would require registration if value of property is above Rs. 100/-.
(2) Donee cannot claim equity in respect of disposal of self-acquired properties, by a donor.
(3) Deficiency of jurisdiction of authority cannot be cured by consent of parties.

Headnote:

(A) Jammu and Kashmir Transfer of Property Act, 1920 – Section 138 – Registration Act, 1908 – Section 49 – Suit seeking declaration and possession over property – Ownership claim for plaintiff is founded only on compromise and respondent is not claiming any antecedent title – Compromise was not amongst family members but between plaintiff and tenant (not a family member) – Consent terms creating rights/title or interest for first time, as distinguished from recognition of a right, would require registration if value of property is above Rs. 100/- – Compromise was required to be registered, under Section 49 of Registration Act, 1977 and also under Section 138 of J&K Transfer of Property Act – Without such registration no title can fructify for plaintiff from documents in question – Besides, compromise and DC’s consequent Order, was passed in a revenue proceeding and this was definitely not a part of a Court proceeding – That being the case, compromise did not fall under exception category under Section 17(2)(vi) of Registration Act, 1977 (as applicable to then State of J&K) – Compromise in order to have legal effect needed registration under Registration Act, 1977 – Donor, during his life time, had cancelled two Wills in favour of plaintiff who claims to be adopted son of donor – Donee cannot claim equity in respect of disposal of self-acquired properties, by a donor – Equity is all about balancing competing interests and due weightage must be given to fact that appellants have been in possession and was nurturing their father’s land for over four decades and estoppel principle propounded against them by respondent must give way to law set out by statute – Decree in favour of respondent (Plaintiff) set aside. (Paras 23, 24, 25, 26, 32 and 34)

(B) Administrative Law – Void Order – [Jammu & Kashmir Agrarian Reforms Act, 1972 – Sections 15, 17 and 21 – Jammu and Kashmir Agrarian Reforms Rules, 1973 – Rule 7 – Jammu and Kashmir Agrarian Reforms (Suspension of Operations Act), 1975 – Section 3] – In cases where authority lacked jurisdiction under a special Act and yet exercises powers, without authority of law, any order or decree so passed through such unlawful exercise of power, will be a legal nullity – Deficiency of jurisdiction of authority cannot be cured by consent of parties – Challenge to such an incompetent order could be set up wherever it is sought to be enforced or relied upon, even in execution or in collateral proceedings. (Para 30)

Facts of the case:

Present appeal is against the judgment and order dated 28.10.2009 in LPA No.174/2008 where under Division Bench of the High Court of Jammu & Kashmir at Srinagar upheld the decree in favour of respondent-plaintiff rendered on 31.07.2003 by District Judge, Anantnag. The suit was filed seeking declaration and possession in respect of land measuring 11 Kanals and 15 Marlas falling within survey nos.1829 and 1838 situated at Ranbirpora, Anantnag. The appellants are the natural son and daughter of late S. Sucha Singh whereas respondent/plaintiff S. Prithpal Singh claimed to be adopted son of Sucha Singh.

Findings of Court:

Answering in favour of the defendants, DC’s order can have no legal effect as the same was passed during the operation of Suspension Act, 1975. Compromise being unregistered cannot confer title on the respondent.

Result : Appeal allowed.