1. One Himatlal Narottamdas died leaving behind him four sons and two daughters viz. (1) Govindlal, (2) Sornalal alias Natverial, who is plaintiff No. 1, (3) Shankerlel, who is plaintiff No. 2, (4) Ambalal, (5) Bai Jethi and (6) Bai Godavari who is defendant No. 2. Bai Jethi was married to one Keshavl.al, who is defendant No. 2/1 and they had one son Indravadan through that marriage, who if; defendant No. 2/2. The eldest son Govindbhai died in 1966 leaving behind him one son Vipinchandra; who is defendant No. 2/4. Bal Jethi died on 25th Sept. 1969 during the pendency of the present suit and, therefore,her husband Keshavlal and her son Indravadan have been brought as defendants in her place. A partition , was effected on March 2, 1933 between the aforesaid four sons of Himatlal Narottamdas which is - placed on the record as Ex. 31. According to this partition deed, it was agreed that the land of old S. No. 621 situated within revenue limits of village Manjrol within Baroda district should not be divided and should be kept joint and the income from the said land was reserved for the maintenance of Bai Jeft and Godavari for their lifetime and in their absence for their descendants and in case no descendents are surviving, the property was to be divided amongst the four brothers. According to the deed of partition, Govindbhai was to manage the said land and disburse the income thereof between the aforesaid two sisters and their heirs in their absence. On April 2, 1934 the 4th son Ambalal relinquished his share m favour of the three brothers. After the demise of Govindbliai in the year 1966 his son Vipinchandra was managing the affairs. As Vipinchandra in collusion with -the two sisters Bai Jethi and Bai Godavari asserted clai to the prejudice of the aforesaid the' brothers, namely, (1) Govlndbhai, (2) Somabhai and (3) Shankerbhai~ and when I the possession was taken over by the sisters from Vipin Chandra, Somabbai and Shankerbliai, Who am respondents Nos. I and 2 before me, filed the present suit in the Court of Civil Judge (J.D.) Sankheda being Regular Civil Suit No. 200 of 1969 for a declaration that they were owners Of the land of S. No. 621 and for possession on the ground that the sisters were the life-tenants of the income of the land of -S. No. 621 and in their absence their heirs were the life-tenants and they had no interest in the corpus of the land.
2. At the time of hearing of the suit, Keshavlal and Indraviadan, who were original defendants Nos. 2 (i) and 2 (ii) remained absent and the proceedings continued ex parte against them. The case of Bai Godavari and Vipinchandra, who were respectively original defendants Nos. 1 -and 2 (iii), was that the suit was time-barred and in any case they have become the owners of the land by adverse possession. They also claimed that they were in possession and enjoyment of the land in their own right under the partition deed. They also contended 'that the plaintiffs were not entitled to relief for possession as there was a tenant of the land in question in respect of which the tenancy proceedings were pending.
3. On these Pleadings the learned trial Judge raised the necessary. issues On appreciation of the evidence, oral as well as documentary, the learned Judge found that the sisters were not entitled to have any right, title or interest in the corpus of the property but they were merely the life tenants for the usufruct thereof. He, therefore, passed a decree as prayed for by the plaintiffs granting the declaration -sought and also directed the defendants to hand over the possession of the land in question to the plaintiffs.
4. The contesting defendants Nos. I and 2 (ii), Bai Godavari and Indravadan, the son of Rai Jeth carried the matter in appeal before the District court - at Bar6da by their Civil Appeal No. 413 on 1974), which also met with the same fate and the learned 2nd Extra Assiata4l Judge, Baroda, by his.. judgment and order of 14th Dec. 19171- dismissed the annual and confirmed the decree of the trial Court. It is this judgment and order of their learned Assistant Judge,, Baroda which are the subject-matter of this appeal before me.
5. At the time of hearing of this appeal Mr.' Majuiuder, learned Advocate appearing for the contesting defendant appellants raised the following five contentions:
(Contentions I to 4. x x x)
5. The appellants have become the co sharers -as Govindbhails interest was released by him in favour of the appellants in the consent decree, Ex. .42, in Civil Suit No. 193 of 1965 on the file of the Court of Civil Judge (J. D.) Dabhoj.
6 to 10. X X X
11. That takes me to the lad contention seriosly pressed by Mr. Majmudar. it is claimed by him on behalf of the appealants that they have become the coowners as GovindblaVs interest was released in favour of the appellants in the consent decree, Ex. 42, in Civil Suit No. 193 of 1965 on the file of the Court of Civil Judge (J. D.) at Dabhoi. mr. Vin, Learned advocate, appearing for the respondents, contended that inasmuch at this consent decree is not registered as required -by S. 17 of the Registration Act, it cannot be'relied upon for purposes of resting the claim of co-ownership. This counter-contention of Mr. rin is sought to be met with by Mr. Majmudar for the appellants by relying on CL (vi) of subsection (2) of S.. 17. Sub-section J2) (vi), so far as material for our purposes, provides as under:
(2) Nothing in cls, (b) and (e) of subsection (1) applies to--
W to (v) ............
, (vi) 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 proceeding ........
In other words, the requirement of subW. (1) of S. 17 about compulsory registration of the non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish any right, title or interest in an immovable property of the XWue of rupees one hundred and upwards would not be applicable to a consent decree -comprising immovable property which is the subject-matter of the suit. Now. therefore, in order to answer the contention we have to test the subdivision Mr. Maimudar that the consent decree Ex. 42 in Civil Suit No. 1%3 of 1965 under which Govindbhei agreed to relin. quish his right, title and interest in favour of the appellants was a decree of the kind as prescribed under clause (vi) of subsee. (2) of S. 17. It should be stated that In the consent decree Govindbai did agree to release his interest in the land in question in favour of the appellants. However, this Would not be sufficient for purposes of clamung the protection under clause (vi) of oub-isection (2) of S. 17. It is to be established that the consent decree in question was relating to the immovable property which was the subject matter of the suit. If it is found that the consent decree in question was not relating to the immovable property in the suit or was not relating to immovable property -at all, it would certainly require a registration if it purports to create, declare, assign, limit or extinguish either in present or in future the right, title or interest in the immovable Property. It is a common ground that Civil Suit No. 193 of 1965 filed in the Court of Civil Judge (J. D.) at Dabhoi by the appellants was a suit for accounts of the usufructs of the land in question from 1932 A.D. till the date of the suit from Govindbbai and for a decree for the amount that might be found due to the Plaintiff together With interest at the 100t Of the accounts of the management by Govindbhai. The crux of the problem is that: Can it be said having regard to the nature of the reliefs claimed in the plaint, Ex. 47, in the aforesaid suit that the suit was one for immovable property can it be said that on the true construction of the plaint the suit was for the determination of any right to or interest in the immovable prGperty? The term 'immovable property,, is not defined in the Civil P. C. nor has it been defined in the Retration Act, 1908. 1 have, therefore, to consider what is the meaning of the term 'immovable property,, as per the General Clauses Act of 1897. Section 3 CIL (15) of the General Clauses Act defines 'immovable property- -as including land, benefits to arise out of land, and things attached to the earth, or perm-2nently fastened to anything attached to the earth. Benefits to arise out of land would include all incorporeal hereditaments, compensation and allowances charged upon the land. But it should be noted that the rent that has already accrued due or for that matter the income which has already accrued is not an immovable Property since it is a benefit which has already arisen out of the land and it cannot be equated with the rent or income-which may accure in future. It cannot be disputed as a proposition of law that a suit for arrears of MW 0 not governed by the provison of S. 16 of the Civil P. C. and it wi.L. always be governed by S. 20 of the said Code.
12. A Division Bench of the Bombay High Court in Clintaman Narayan ,. Madhavrav Venkatesh, %11867-69) 6 Bo,a HCR 29, as back as in 1866 in a suit by the plaintiff Chintaman Narayan to recover from the defendant Madhavrav the balance of rents and profits of certain lands situated in the districts of Thana and Satara held that the suit was not one for land or immovable property but to recover from the defendant the balance -of certain amounts and profits which, it was alleged, that the defendant had received on the plaintiff's account and had neglected to pay over. Mr. Majmudar therefore, made an attempt to persuade me that the appellants who were the plaintiffs, in that suit had overriding charge on the land in question and, therefore, when he claimed accounts and an ascertained amount at the foot thereof, he was trying to enforce the charge and, therefore, the suit is a suit necessarily for immovable property. I am afraid I cannot agree with such a broad submission. On perusal of the relevant clause in the partition deed I do not find that there is any charge created by act of the -parties on the land in question. If the parties had intended that there should be a charge over the property so as to ensure the payment thereof to the sisters, it would have been appropriately provided for in the relevant clause. Instead of making the necessary provision about the change over the land in question, the parties to the partition deed agreed that till the lifetime of the sisters and their descendants the land in question should be kept and treated as a joint family property and only in absence of any of the descendants of the sisters surviving the land has to be divided between the brothers. I do not think that this provision can legally amount to a charge. In that view of the matter, therefore, the attempt of Mr. Majmudar to urge that the sisters were trying to enforce the charge by claiming the accounts and the stated amount at the foot of such accounts cannot be sustained. The result is that the 5th contention also should fail because the aforesaid suit being not a suit for claiming any right or interest in the immovable and, therefore not for immovable property, the decree passed in respect of the land in question would require registration under S. 17(2) of the Registration Act and is not within the terms of exception provided by clause (vi) of sub-section (2) of the said section and since the decree in question is not registered, it would not create any right, title or interest in favour of the appellants before me and, therefore, their claim to be treated as co-owners cannot be upheld.
13. Appeal dismissed,