V.K. Khanna, J.
1. This is a plaintiff's second appeal arising out of a suit for restraining the defendant by means of a permanent injunction from alienating the properties detailed at the foot of the plaint.
2. According to the plaintiff's case one Narottam Gir had half share in plots Nos. 24l measuring 3 Bighas 5 Biswas and 599 measuring 5 Biswas situate in Sikandrabad, district Bulandshahr. The aforesaid Narottam Gir had four sons, namely, Dharampal Gir, Parmeshwari Dayal Gir, the two plaintiffs, Madan Gir, the deceased husband of defendant-respondent, Smt. Angoori Devi, and Pooran Gir. Madan Gir husband of defendant-respondent Smt. Angoori Devi, pre-deceased his father Narottam Gir and after his death Smt. Angoori Devi, defendant-respondent, went away to her parents' place. Defendant-respondent, Smt. Angoori Devi however, came again to the plaintiff's house after the death of Narottam Gir, The name of the defendant-respondent was got mutated in village record for her consolation even though she had no share in the property and the defendant-respondent in turn agreed that she would not transfer the property in her lifetime for which she executed a deed on 26-12-1968. The plaintiffs alleged that in defiance of the aforesaid undertaking, she is now threatening to transfer the property over which her name had been mutated as a consolation. The suit giving rise to the present second appeal was, therefore, filed for a permanent injunction restraining her from transferring this property to any one.
3. The aforesaid suit was contested by the defendant on the ground that her husband had died subsequent to the death of his father. It was also pleaded that she had never executed any deed limiting her right not to transfer the property in her lifetime and that the aforesaid deed had been obtained by fraud and undue influence. It was also pleaded that the deed of agreement was inadmissible in evidence.
4. The trial court held that the husband of the defendant-respondent had not pre-deceased his father. It also found that the defendant-respondent had executed a deed by which she had agreed not to transfer her property in her lifetime and that after her death the property was to go to the brothers of her husband. However, the trial court held that the agreement being unregistered was inadmissible and thus did not confer any rights upon the plaintiff. The suit was accordingly dismissed. Feeling aggrieved the plaintiffs filed an appeal which has also been dismissed.
5. A bare perusal of the lower appellate court's judgment would show that the plaintiffs before the lower appellate court have not challenged the findings recorded by the trial court in respect of the question as to whether Madan Gir had pre-deceased Narottam Gir. Regarding the execution of the agreement a finding has been recorded in favour of the plaintiffs that the defendant-respondent did execute the agreement (Exhibit 2). The only question which was agitated before the lower appellate court was as to whether the agreement, Exhibit 2, was admissible in evidence or not.
6. Section 17 of the Indian Registration Act details tha instruments which require registration. Section 17(b) of the Act provides:--
'Other 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 immoveable property.'
7. The learned counsel for the appellant has firstly urged that the Agreement (Ext. 2) amounts to a family settlement by which no interest in the property has been created in favour of any one and this does not require registration under Section 17(b) of the Indian Registration Act. I am unable to accept the aforesaid contention raised by the learned counsel, A bare perusal of Sub-section (b) of Section 17 of the Registration Act shows that other non-testamentary instruments which purport to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest in immoveable property of the value of Rs. 100 or more has got to be registered. A bare perusal of Agreement (Exhibit 2) would clearly show that the defendant in the aforesaid document has clearly stated that she is the aboslute owner of the property in dispute and in respect of the aforesaid property she entered into an agreement not to alienate during her lifetime and that the aforesaid property would go to the heirs of the husband after her death. From the aforesaid agreement it is thus clear that there was no antecedent title admitted in the aforesaid deed in respect of the plaintiff. The defendant categorically stated that she is the absolute owner. If that be so, the terms of the agreement clearly create an interest in the disputed property in future in favour of the plaintiff and would clearly amount to transfer of property in jfuture in favour of the plaintiff.
8. The learned counsel for the appellant has placed reliance on two decisions of this court reported in Mt. Mahadei Kunwar v. Padarath Chaube : AIR1937All578 and Sultan Ahmad Khan v. Sirajul Haque : AIR1938All170 . In my opinion, both the aforesaid cases do not support the proposition raised by the learned counsel for the appellant.
9. In Mt. Mahadei's case (supra) a Full Bench of this Court clearly laid down:--
'...... On the strength of these authorities the Full Bench held that the pronouncements of their Lordships of the P. C. were sufficiently clear to put it beyond doubt that in the usual type of the family arrangement there is no question of any property (the admitted title to which rests in one of the parties) being transferred to one or the other parties and there is no transfer of ownership such as is necessary to bring the transaction within the definition of 'exchange' in Section 118 of the Transfer of Property Act Of course, there may be a family settlement in which there is some transfer of property as well along with the settlement of the dispute, which to the extent of such transfer would stand on a different footing.' (emphasis provided). From the aforesaid it is thus clear that even in the case of family settlement what has to be seen is that whether under the family settlement there has been any transfer of property or not, and in case there has been a transfer of property, the same would require registration. However, in the case of a family settlement where there is antecedent title in the parties to the family settlement and there is only a relinquishment of the claim and not creation of any right in favour of any person of the family the same may not amount to transfer of property requiring registration. As has been seen from the agreement (Ext. 2) in the present case there is clearly a creation of interest in favour of the plaintiff by the defendants and thus it cannot be said that it was a case of recognition of the title of the plaintiff by the defendant and relinquishment of some right or some claim by the defendant. To the same effect is the decision of this Court in the case of Sultan Ahmad Khan (supra).
10. The learned counsel for the appellant has also relied on a Supreme Court decision reported in Sahu Madho Das v. Mukand Ram : AIR1955SC481 . In the aforesaid case it was held:--
'...... The legal position in such a case would be this. The arrangement or a compromise would set and define that the title claimed by A to all the properties in dispute was his absolute title as claimed asserted by him and that it had always resided in him. Next, it would effect a transfer by A to B, C and D (the other members to the arrangement) of properties X, Y and Z and thereafter B, C and D would hold their respective titles under the title derived from A. But in that event, the formalities of law about the passing of title by transfer would have to be observed, and now either registration or twelve years adverse possession would be necessary.' (emphasis provided).
From the aforesaid case it is thus clear that it has been clearly laid that in a case in which absolute title is being claimed to the property and thereafter it is being sought to be transferred either in present or in future to another person, the formalities of law about the passing of title by transfer would have to be observed and registration would become necessary. In my opinion, the present case instead of helping the learned counsel for the appellant goes against him. The finding recorded by the two courts below on the aforesaid question, in my opinion, does not suffer from any error of law requiring interference in this second appeal. The document, in my opinion, requires registration and in the absence of the document being registered the same was, inadmissible in evidence,
11. The learned counsel for the appellant then urged that the Agreement (Ext. 2) is only a personal covenant running with the property and does not amount to transfer of property. In my opinion, the argument raised has no force for the reason already stated above. The agreement Exhibit 2 has been held above, creates an interest in the property in favour of the plaintiff and thus clearly amounts to transfer of property.
12. No other point has been pressed before me. For the reasons stated above the present second appeal fails and is accordingly dismissed. However, in the circumstances of the case the parties shall bear their own costs.