1. This is a plaintiff's appeal and arises out of a suit for recovery of arrears of rent instituted by the appellant against the respondents.
2. The claim was that the defendants were liable to pay rent at the rate of Rs. 171-8-0 per year. The defence was that this rate could not be charged, and the annual rent payable was Rs. 90.
3. To prove the defendants' liability to pay the sum of Rs. 171-8-0 per annum, the plaintiff put into evidence a decree passed on compromise dated 9th October 1918. It appears that a few years ago the plaintiff brought a suit against the defendants for their ejectment, as non-occupancy tenants. The parties agreed that the defendants should pay, in future, an enhanced rent at the rate of Rs. 171-8-0 per annum instead of Rs. 90, which they had been paying up till this suit, provided the plaintiff agreed to confer on the defendants the status of occupancy tenants. The terms were recorded in the decree that was passed, though the decree resulted in the dismissal of the suit which, as I have said, was one for ejectment of the defendants.
4. The plaintiff having relied on this compromise, the defence is that the agreement to pay the enhanced rent, not having been registered as required by Section 47, Agra Tenancy Act, of 1901, it, the agreement, did not bind the defendants, and the plaintiff could not enforce the terms of the said agreement.
5. The contention of the defendants found favour with the lower appellate Court, though it did not find favour with the Court of first instance, which decreed the suit in its entirety.
6. In this Court it has been contended that the learned appellate Judge has overlooked the fact that the terms had been entered in a decree. Reliance has been placed on the case of Hemanta Kumari Debi v. Midnapur Zamindari Co. A.I.R. 1919 P.C. 79.
7. In this case which was decided by their Lordships of the Privy Council, the facts were briefly these: The appellant before their Lordships brought two suits, one against the Secretary of State for India, and the other against Watson and Co. Both were suits in ejectment. In the suit which had been instituted against Watson and Co. it was agreed that Watson and Co. should admit the title of the plaintiff, and the plaintiff (the appellant before their Lordships of the Privy Council) should lease out, in consideration of acknoledgment of a title, the lands in suit to Watson & Co. It was further agreed that, if the plaintiff succeeded in her suit against the Secretary of State for India in Council, she would grant a lease of the property claimed by her in that suit to Watson & Co. The plaintiff having succeeded in her suit against the Secretary of State for India, Watson and Co., brought this suit, which went up before their Lordships of the Privy Council, for specific performance of the contract as embodied in the terms of the decree. The defence was that the agreement was an agreement of lease, and therefore, the agreement to be valid was bound to be registered. The further contention was that as the decree in Watson's case had not been registered, the terms embodied in the decree could not be proved by the production of a copy of the decree. Their Lordships of the Privy Council pointed out that, under the provisions of the Registration Act itself, a decree did not require registration, and, therefore, the provision in Section 49, Registration Act, that documents, which required to be registered by the law of registration could not be admitted into evidence if they happened to be unregistered, did not apply to a decree which, as I have stated, did not require to be registered under the law of registration. It was contended before their Lordships that the agreement as to leasing out the lands which had been claimed against the Secretary of State was no part of the operative portion of the decree. Their Lordships pointed out again that a decree would not cease to be a decree simply because it contained matters which did not form a part of the operative portion of the decree. In the result, their Lordships agreed with the Calcutta High Court that the terms of the agreement between the parties could be proved by the production of the copy of the decree.
8. In this particular case before us there is no question as to the admissibility of the agreement entered into between the parties. The terms of the agreement would be admissible in evidence whether they were embodied in the decree or not, and whether the deed was registered or not. The terms at which the parties arrived in the ejectment suit are before us. The question that has to be answered is, whether the agreement creates a binding liability on the defendants. It is not every agreement that is binding on a party to it, simply because he agreed to it. Where the law says that a contract, to be effective, should be executed in a particular way: e.g., a mortgage has to be effected not only by the execution of a document, but by also it being registered and attested by two witnesses, where certain formalities are laid down to be gone through before a certain liability is created those formalities cannot be dispensed with. A registered but unattested mortgage-deed will be admissible in evidence, but not create a valid mortgage, and bind the property. As I have said, in this case, there is no question of admissibility of any document into evidence, The terms of the agreement are before us, and the sole question is whether the agreement, as agreement is binding on the defendants and will make the defendants liable to pay an enhanced rent. Section 47, Tenancy Act, of 1901 lays down that where an agreement to enhance rent is arrived at, it would be binding on the parties, only where it is registered. If that be so, the want of registration, in my opinion, is fatal to the plaintiff's claim.
9. A similar case came up before myself and my brother Boys, J., in Dhanpat Rai v. Pooran 0049/1928 : AIR1928All352 . The facts are indistinguishable; but the Privy Council case quoted above was not cited before us. As I have already indicated, the Privy Council case does not make any difference at all.
10. In the result I would dismiss the appeal with costs.
11. In view of the fact that I agree with the conclusion arrived at by my brother Mukerji, J., it is unnecessary for me to make more or few observations. Looking at the matter broadly we find that where material, which does not concern the subject-matter of the suit, has been embodied in a decree, there is no necessity for registration. This means in effect that the document embodying that material can be given in evidence, and that means that it can be used as proof of title. I can see no difference, in principle and that has been my only difficulty, between allowing embodiment in a decree to have the effect of dispensing with the necessity for registration which is otherwise called for by Section 17, Registration Act, and allowing embodiment in a decree to have the effect of dispensing with the necessity for registration called for by Section 47, Tenancy Act. But in the former case the exemption from necessity for registration is, once it has been found that the matter is embodied in a decree, and in view of their Lordships' ruling of the Privy Council, a matter of statutory enactment. It may be that if it had occurred to the legislature, it would have enacted that embodiment in a decree equally dispensed with the necessity for registration called for by Section 47. But it has not so enacted, and in view of the great importance rightly attaching to registration, I do not feel justified in extending the principle of the enactment in Section 17(2)(vi), Registration Act, to Section 47, Tenancy Act, however, strong may be the logical argument that the same principle governs both cases.
12. The appeal is dismissed with costs.