1. This is an appeal from the judgment of the District Judge. Medak at Sangareddy given on 30th day of June, 1967. The relevant facts are that the respondents--plaintiffs instituted O. S. No. 31 of 1962 in the Court of the District Munsif of Siddipet. It was contended inter alia in the plaint that Rejesham, Lakshminarayana and the defendants were three brothers. The three plaintiffs are the sons of Lakshminarayaan. Rejesham died 18 years before the suit leaving his widow Lakshmi Bai. The properties mentioned in the B Schedule are said to be ancestral properties of the three brothers. After the death of Rajesham, his widow Lakshmi Bai filed O. s. 20/60 in the District Munsif's Court, Siddepet for recovery of possession of A Schedule properties and certain other properties. The suit was laid against the plaintiffs and the defendant in this suit. It was alleged that the suit properties therein had fallen to the share of her deceased husband Rajesham and that refer his death she became entitled to those properties. She was deprived of those properties by the defendants in that suit. In a joint written statement the defendants in that suit denied the right of the plaintiff in that suit on the ground that those properties did not fall to the share of her husband nor she could become entitled to them after his death. Their contention was that the family continued to the joint, and after the death of the plaintiffs husband they became entitled to the property under the principle of survivorship. The suit was compromised and a compromise memo was filed in the court on 31-8-1960. It was further contended that in the said memo of compromise the defendants in that suit accepted the contention of the plaintiff. In consideration of Rs. 3150 which was paid to the plaintiff outside the Court, the plaintiff in that case gave up her right in the properties and agreed that the property may be taken by the plaintiffs in the present suit. It was further provided that the 4th defendant in that suit admitted that he had no title to those properties. The compromise was recorded and in pursuance of the said compromise the suit was dismissed.
2. While so the defendants-appellants filed O. S. NO. 48 of 1961 for the issue of an injunction and for cancellation of the above said compromise decree. That suit, however, was dismissed for default on 18-6-62. No further steps to restore the same were taken.
3. The present suit therefore was instituted by the plaintiffs on the above said allegation and a petition is demanded of the properties. They also claimed separate possession of the plaint A Schedule properties.
4. The defendant resisted the suit. According to him the plaint B schedule properties are ancestral and joint properties of the parties. he contended that Lakshmibai is the widow of Rajesham. Rejesham died as Manager and a member of the joint Hindu family. After his death the defendant and Lakshmi Narayana, the father of the plaintiffs, became entitled to the properties by virtue of the principle of survivorship. They were in joint possession. Lakhsmibai therefore had no right title or interest in the suit properties. He further contended that the compromise decree passed in O. S. NO. 20 of 1960 is invalid and void. It was contended that the compromise required registration: and secondly as no permission under S. 47 of the Andhra Pradesh (Telegana Area) Tenancy and Agricultural Lands Act, 1950 was obtained the transaction was void. he further stated that the properties are part and parcel of the joint ancestral properties of the parties and no suit for separate possession of only one-third share can lie.
5. Upon these pleadings the trial court framed several issues, and after recording the evidence adduced by the parties dismissed the plaintiff's suit. The trial Court agreed with the contention of the defendant in regard to Section 47 of the Tenancy Act, but it did not agree with the other contention in contention in regard to the registration of the compromise deed.
6. Dissatisfied with that judgment, the plaintiffs carried the matter in appeal to the District Court. At the appellate stage the appellate court allowed certain documents regarding previous litigation to go on record as additional evidence under Order XLI Rule 27 C. P. C. These documents were filed by the plaintiffs appellants. The appeal was ultimately allowed and the suit was decreed. The appellate Court negatived the contention of the defendant that the compromise involved transfer of the property and therefore it required permission under Section 47 of the Tenancy Act. It also took the view that the compromise does not require registration. It found the suit maintainable in the present form. The defendant has therefore come in second appeal.
7. Three contentions were raised by Sri Upendrala Waghray learned counsel for the appellant. his first contention was that the compromise requires registration and as it is not registered, it is not admissible in evidence nor it conveys any title to the plaintiffs. No suit on the basis of nay such compromise decree can therefore lie. In order to appreciate this compromise. The compromise memo reads as follows;
'(1) That the defendant No. 1 Lachiah have compromised with the plaintiff and has given to the plaintiff Rs. 3,150/- I. G. out of the Court. Hence the plaintiff has withdrawn with her rights in favour of the defendant Lachaiah and his brothers Bhomiah and Rejesham. By the date of the compromise the defendants lachiah and his brothers the defendants Nos. 2 and 3 will be in possession of the suit property as owner and in which the plaintiff or the other remaining defendant will have no right. The defendant No. 1 will have a right to making the patta in his name as per the compromise.
(2) That the defendant No. 4 admits with this compromise and has no objection. Hence he will have no right or his share in the suit property.
(3) That as per the compromise the plaintiff has given the house situated at Chikod Kalan as detailed below to the defendant Lachiah. Hence he will in future be in possession of the said house and the plaintiff will have no right or share in the house also.'
8. The following is the endorsement appearing on the memo of the compromise:
'The parties admitted the facts of the compromise petition. Sri Mahaboob Ali. Advocate identified the plaintiff and Sri Abdul Kareem, Advocate identified the defendant. I know them. Hence verified.'
The District Munsif made the following order in the main suit:
'Advocates for the parties present. The file is put up in advance. Compromise petition has been filed.
The Court Fee Examiner has raised an objection that the plaintiff should furnish the correct market value. And as the value of the lands has increased considerably the court fee paid is not sufficient. In my opinion, the court fee paid is not sufficient. The area of the land is 15 Acres and 15 cent and court fee Rupees 143/- has been paid.
The suit is dismissed. Parties should bear their own costs. File be struck of and consigned.'
9. It is common ground that the house to which a reference is made in paragraph 3 of the compromise was not the subject-matter of the suit in which the compromise memo was filed. Thus the compromise memo relates to the property which was the subject-matter of the suit and also to the house which was not the subject-matter of the suit. The procedure to be followed in such cases under Order XXIII Rule 3 C. P. C. is patent enough. According to that provisions.
'Where it is provided to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise. . . . the Court shall order such agreement compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so as it relates to the suit.'
It is in the light of this provision that the order passed on the compromise by the court has to be understood. In so far as the recording of the compromise or agreement is concerned, the decree covered the entire terms of the agreement or the compromise which are lawful. But in so as the question of passing a decree is considered, it has to be confined to the property which was the subject matter of the suit. But the property which, does not relate to the suit may him one of the terms of the compromise, but there will be no decree in regard to such a property because it does not relate to the suit. The term relating to such property should be mentioned in the schedule attached to the decree but will not form part of the decree.
10. It is in this back ground that I have no consider whether a compromise comprising the terms relating to the suit property as well as relating to some other property which is not the subject-matter of the suit, requires registration under section 17 of the Indian Registration Act. Sub-section (1) of that section refers to the documents which shall be registered. Sub-section (2) points to the exceptions. Certain documents mentioned therein are exempted from the operation of clauses (b) and (c) of sub-section 91). In cases of those document those provisions have been made inapplicable. The relevant clause in this case is clause (vi). which reads as follows;
'any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceedings.'
11. A close reading of this clause would indicate that broadly seeking all the decrees or orders of Court have been exempted from the operation of clauses (b) and (c) of sub-section (1). There is, however, an exception to this exception. Those decrees or orders, which are expressed to be made on a compromise other than that which is the subject-matter of the suit or the proceeding would not be exempted from the operation of clauses (b0 and (c). If the case of a compromise relates to property, which is not the subject-matter of the suit or proceeding, then obviously the latter part of clause (vi) would take away the exception, and to such a case clause (b) or (c) as the case may be would apply, and such a document would be liable for registration. It will thus be plain that where the compromise deals only with the properties in the suit and the Court passes a decree in accordance therewith, such a case will squarely fall which the exception and such a decree would not require registration.
Similarly, where the compromise deals with the properties which are not the subject-matter of the suit and the Court passes a decree in accordance therewith, such a decree is not exempted from the operation of clause (b) or (c) and it will require to be registered. Where, however, the compromise deals not only with the properties in suit but also properties outside it and the Court embodies the whole compromise in the decree but passes a decree under Order XXIII R. 3 C. P. C. in accordance with the terms so far as it relates to the suit, the question naturally arises as to what extent the compromise decree is required to be registered under the above said clause of section 17(2).
In so far as a decree or order embodies the compromise in relation to matters outside the suit or proceeding, there was, before the amendment of 1929, a conflict of opinion, one set of cases holding that it did not require registration and another set of cases holding that they do require registration. This conflict of opinion was set at rest by the decision of their Lordships of the privy Council in Hemanta Kumari v. Midnapore Zamindari Co., AIR 1919 P. C. 79. It was to the effect that a decree, which wholly incorporated a compromise relating not only to the properties in the suit or proceeding, but also properties outside it is not compulsorily registrable as regards any portion thereof. This view was subsequently followed till section 17 was amended in 1929. After clause (vi) was amended in 1929, it seems to be plain that a decree or order based on a compromise comprising properties which are the subject-matter of the suit and properties which are outside the suit, is compulsorily registrable only to the extent of the property which is outside the subject-matter of the suit. But it is not registrble in so far as it relates to the subject matter of the suit. In other words, a decree or order based on a compromise comprising property other than the subject-matter of the suit or proceeding, to that extent it would not be exempt from registration I am fortified in my view by the following decision: Supdu Laxmanshet v. Soniram Regho. AIR 1945 Bom. 143 at p. 146 and Bishunath Rai v. Saju Rai, AIR 1931 All. 745.
12. What must necessarily follow from the above said discussion is that to the extent the compromise decree relates to the house, which was not the subject-matter of the suit, the decree is not exempt form registration, and consequently it will not affect the right, tittle or interest of the house. But in so far as the other properties of the compromise are concerned, which admittedly relate to the subject-matter of that suit, the decree falls squarely within clause (vi) of section 17(2) and therefore is exempt form registration.
13. What was, however, argued before me by Mr. Waghray was that what has to be seen under the later part of clause (vi) is whether the decree expressed to be made on a compromise comprises of immoveable property other than that which is the subject matter of a suit, and if the answer is in the affirmative, then the exception embodied in clause (vi) would apply and the entire decree comprising both the properties relating to the suit and outside it is registrable. It is difficult to accept this contention. If it is borne in mind that the governing principle of clause (vi) is to exempt the decree of the court from the registration and operation of clauses (b) and (c), then any exception to this general principle must be construed narrowly. it is only to the extent that a compromise comprises immoveable property other than that which is the subject-matter of the suit which would require, registration and not the entire thing. Otherwise, the very purpose of clause (vi) would be frustrated. I do no think there is any scope for such an interpretation of clause (vi) as is put upon it by the learned counsel for the appellant. I am therefore satisfied that t to the extent of the house, the compromise decree was compulsorily registrable. But in so far as the property relating to that suit was concerned, it did not require any registration. The decree to that extent therefore is admissible in evidence. It purports to transfer the right title and interest in the subject-matter of the suit in favour of the plaintiffs in this suits.
14. The next contention of Mr. Waghray was that under section 47 of the Tenancy Act, since the compromise effects a transfer from the widow in favour of the present plaintiff. Permission under section 47 was necessary, and since no such permission was obtained, the transfer was void.
15. Section 47, in so far as it is relevant reads as follows:
'(1) Notwithstanding anything contained in any other law for the time being in force or in any decree or order of a Court, no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Tahsildar.'
What has to be seen is whether the compromise is a permanent alienation of agricultural land or a transfer of the same. In either case, it will come within the mischief of section 47 (1), and the transaction admittedly will be void.
16. It was contended by the learned counsel for the respondents that the compromise is neither a permanent allegation nor any other transfer of agricultural land within the purview of S. 47 (1) His contention was that it was a case of family arrangement, which recognised a pre-existing right of the plaintiffs and consequently cannot come within the purview of section 47 (1).
17. Now, a family arrangement is a transaction between the members of the same family which is entered into for the benefit of the family generally. It is an agreement which tends to the preservation of the family, to the peace or security of the family and the avoidance of family disputes and litigation or to the saving of the honor of the property. such an arrangement is based on the assumption that there was an k antecedent title of some kind in the parties and the agreement acknowledges what the title is. It is only on this assumption that the arrangement is held not to be a transfer. It is true that the existence of a dispute in praesenti or of a doubtful claim is not essential for the validity of a family arrangement. What, is, however, necessary in all such cases is that there must be an arrangement entered into for one of the above said purpose. It must assume that there was an antecedent title of some kind or the other. When one party has no title whatsoever to the property, and yet the party in whom the title for the time being lawfully vests agrees to the transfer of such title to the other party, such a transaction in my view, would operate as a transfer of property regardless altogether of the fact that the transfer is made during the pendency of the suit or parties have compromised or there was a settlement of the suit. It is in this light that I have to examine whether the plaintiffs had any pre-existing bona fide right.
18. It is true that they claimed that the husband of the widow was a member of the joint and undivided family and after his death, the surviving brothers became entitled to the entire property because of the right of survivorship. They ultimately conceded that there was earlier partition under which Rajesham had become separated and that the property belonged to his widow as was contended by her in the plaint. It is on this basis that the plaintiffs paid Rs. 3150/- to her on consideration of which she withdrew from her suit and transferred the title to the plaintiffs. I fail to see in these circumstances how it can be said that the plaintiffs had any bona fide pre-existing right. They never had any pre-existing right because Rajesham was a member of the undivided family. After his death it is his widow who would get the property whatever may be her extent of the right in the property. The plaintiffs purchased the property fro her by paying her some amount. The compromise was therefore a sale and not a family arrangement. There was no question of preservation of any property for the purpose of the family. There was no idea of avoiding any litigation. it is also in this connection pertinent to note that the 4th defendant in that suit was kept out of the property under one of the terms of the compromise. If the contention of the plaintiffs, who were defendants in that case, was right that Rajesham died as a member of the joint family then not only the plaintiffs or their father but also the defendant-appellant would by right of survivorship become entitled to the entire property including the share of Rajeshm. In the compromise however, no share was given to the present defendant who was the 4th defendant there. That makes the position very clear, and there can be no difficulty in reaching the conclusion that the parties knew that there was an earlier partition. It is because of that they agreed that the property belonged to the widow, and since the 4th defendant was not in a position to purchase any share of the property, it is the plaintiffs who paid Rs. 3150/- and purchased the property from the widow. The transfer of the house would from part of such consideration. In these circumstances, I do not think there is any justification for holding that it is a family arrangement entered into between the parties. I am supported in may view by the following decision Chanan Singh v. Waryam Singh, AIR 1947 Lah 175.
19. What must follow is that it is a case of permanent alienation: in other words, a sale which squarely falls within the purview of section 47 (1) of the Tenancy Act. Admittedly, no permission was obtained for the transfer from the Tahsildar. The transfer therefore being opposed to S. 47 (1) is hit by S. 23 of the Contract Act. The contract is illegal and void. o effect therefore can be given to such a compromise decree, the effect to which is to transfer agricultural lands without obtaining the permission of the concerned authority.
20. It is also doubtful as to whether the plaintiffs could file the suit for partition which is partial in its character. The case of the plaintiffs is that in the whole of the suit property there were three shares. One belonged to rajesham, he had earlier partitioned, which property was not divided by metes and bounds. The plaintiffs have one-third share and the rest belongs to the defendant-appellant. After the plaintiffs purchased under the compromise decree the one-third share of Rajesham from his widow, they became entitled to two-thirds share in the suit property. They filed the suit only for partition and separate possession of one-third share. The question naturally is whether the plaintiffs can get one-third share of Rajesham separated and continue their one-third share joint with the one-third share of the defendant. If the plaintiffs had become entitled to two-thirds share, they should have asked for partition of their two-thirds share from the defendant. The learned Advocate for the respondents could not show me as to why this is not a case of partial partition. It is not material that they got the share of Rajesham transferred in their favour. What is more relevant is that they are entitled to two-thirds share in the suit property. They should have therefore asked for the separation of two thirds share, and not a suit for separation of one-third share only and allowing the other one-third share to remain joint with the one-third share of the defendant. Such a suit for partial partition, in my view , is not maintainable.
21. For the above-said reasons, I would allow the appeal, we aside the judgment of the Court below and dismiss the plaintiff's suit with costs. No leave.
22. Appeal allowed.