1. In these suits the plaintiffs seek to recover rent alleged to be due to them respectively under a compromise entered into between themselves on the one hand and their sister and the defendant's father on the other in Original Suit No. 18 of 1901, on the file of the Subordinate Court of Madura East. The plaintiffs in these suits and their sisters are the daughters of the late Rajah of Sivaganga. The Rajah granted a permanent lease of six villages to his wife, and his wife in turn leased 5 of the 6 villages to the European lessees to whom the Rajah had leased the bulk of the zamindari and who are commonly known as the Sivaganga lessees.
2. As stated in plaint, filed by the defendant's father in Original Suit No. 18, the Sivaganga lessees paid her the rent for six faslis or Rs. 60,000 in advance in 1891. The plaintiff's' mother died in 1892 and in 1900, her youngest daughter, the present plaintiffs' sister, claimed to succeed to the six villages as heiress to her mother and to the exclusion of her sisters, the present plaintiffs, on the ground that she was the sole-unmarried, daughter at the time of her mother's death. For the assertion of this claim she sought the assistance of the defendant's father, a leading Nattakottai Chetti in the Madura District, and in December 1901 he advanced: her Rs. 30,000 on a mortgage of her interest in the villages, (Exhibit A), and took a lease of them from her, (Exhibit B), and in February 1901, joined with her as 2nd plaintiff in Original Suit No. 18 of 1901 against her sisters, the present plaintiffs, for the purpose of asserting her rights and his rights as lessees under her in the suit villages. The present plaintiffs in their written statement, (Exhibit 0), set up that their mother took nothing under the permanent lease which they alleged was executed by the late Rajah benami for his own benefit, but they alleged a subsequent family settlement by which they and their sister were entitled on his death to succeed each to one-fourth share in the villages. While the suit was pending the minor Rajah through the Court of Wards applied to be made a party for the purpose of asserting his claim to the six villages but his, application was rejected on 5th August 1901. (Exhibit P). Subsequently on 10th March 1902, the suit was compromised on the terms, speaking broadly, that the 1st plaintiff was to give up her exclusive claim to the six villages and that the three defendants, the present plaintiffs were to accept the lease, (Exhibit B), executed by her in favour of the 2nd plaintiff, the present defendant's father, and each be entitled to one-fourth of the rent payable thereunder. One of the terms of the compromise was that the four sisters were to send yadasts or notices to the Sivaganga lessees to pay the rent due under the lease of the 5 villages to the 2nd plaintiff and this admittedly was done. The Sivaganga lessees, however, failed to pay any rent to the 2nd plaintiff apparently in consequence of a notice (Exhibit I) dated 23rd June 1902, from the Court of Wards demanding the rent on behalf of the minor zemindar and threatening a suit if it was not paid. No such suit was instituted, but the Sivaganga lessees refused to pay their rent of the 5 villages to the defendants' father and the defendants after him without indemnity, and they in their turn refused to pay the plaintiffs their share of the rent due to them, and after an unsuccessful attempt to recover their rent in execution of the decree in Original Suit No. 18 (Exhibit HI), the present suits were instituted by these plaintiffs for the purpose of recovering their respective shares of the rent.
3. The defendants contended that the plaintiffs were not entitled to sue because the compromise had not been registered and also because of their failure to give possession of the rent payable by the Sivaganga lessees in respect of the 5 villages and also that by a Subsequent agreement no rent was payable to the plaintiffs until the defendants had recovered the rent payable by the Sivaganga lessees. The Subordinate Judge overruled all these contentions and gave the plaintiffs decrees. These contentions were again raised before us on appeal. Before coming to the objection for want of registration it will be convenient to deal with certain contentions which were raised as to the scope and effect of the decree. In the first place it was said that the compromise did not relate to the suit within the meaning of Section 375, Civil Procedure Code, in so far as it constituted the 2nd plaintiff in the suit a lessee under the 1st plaintiff and the defendants in the suit (the present plaintiffs and their sister) and entitled the defendants in the suit to recover rent from the 2nd plaintiff, as no such reliefs were sought in the plaint and that, therefore, this part of the compromise could not be covered by the decree. It is quite true that no such reliefs were sought and that this test was laid down as applicable to compromises in Venkatappa Nayanim v. Thimmaayanim 18 M.k 410 and applied in Muthti Bijaya Raghunatha Udayana Tevar v. Thandavaraya Tavibiran 22 M.k 214 but in a later case Joti Kuruvetappa v. Izari Sirusepfa 30 M.k 478 partly equal to 16 M.L.J. 354 it was held that relates to the suit' in Section 375 means 'relates to the matter of claim in the case and that there is nothing in the section to restrict the relief granted in the compromise to what is prayed in the plaint or less.' We entirely agree with this view which is also in accordance with the decisions of the Calcutta High Court in Purna Chandra Sarkar v. Nil Madhub Nandi 5 C.W.N. 485 and Gurdeo Singh v. Chandrikha Singh and Chandrikah Singh v. Rashbehary Singh 5 C.L.J. 611. In Original Suit No. 18 the 1st and the 2nd plaintiffs were litigating as lessor and lessee for the ownership and enjoyment of the six villages, and the compromise provided how the six villages were to be owned and enjoyed by the parties to the suit. Such a compromise, in our opinion, clearly relates to the suit and ought properly be covered by the decree.
4. It is next objected that this part of the compromise was not in fact embodied in the compromise decree Exhibit-D. The duty of the Subordinate Judge under Section 375 was to pass a decree in accordance with the compromise in so far as it related to the suit, and to refuse to pass a decree in respect of such portions as did not relate to it. What the Subordinate Judge actually did was to pass an order on the petition Exhibit-D, 'Decree in terms of the razinamah in so far as it is consistent with the plaint,' and the decree Exhibit D sets out that the Court resolves to make a decree in accordance with its (the razinamah's) terms and so far as is consistent with the plaint and hereby directs that the plaintiffs and defendants do abide the same.' The terms of the razinamah are:
(1) that in accordance with the razi-nainah presented into Courts on the 7th instant the 1st plaintiff and defendants shall each enjoy in equal shares 1/4th share with all rights and privileges and with powers of alienation by way of gift, mortgage, exchange and sale &c;, hereditarily;
(2) that defendants shall accept the lease deed executed by the 1st to 2nd plaintiff on 9th October 1900 in respect of the undermentioned villages described in schedules A and B of the plaint, as also the' terms of the said deed and the lease granted at the rate of .Rs. 12,500 per Fasli from Fasli 1310 to Fasli 1334 according to the said deed and that the said defendants shall refrain from interfering with the said villages up to Fasli 1334 during the enjoyment of the said lease by 2nd plaintiff ;
(3) that 1st defendant shall deliver to the 2nd plaintiff possession of the village of Tiruvettiyur in schedule: A, together with the crops of the current Fasli 1311 and in default of delivery of possession as aforesaid, 2nd plaintiff shall obtain possession of the said village, with the crops of Fasli 1311, through the Court's precept ;
(4) that in the matter of the lease granted in respect of the B--schedule village at the rate of Rs. 10,000 per Fasli to the lessees by the late Rakku Nachiar Avergal, which, lease amount was required to be collected in every Fasli from the June instalment of Fasli 1311, the 2nd plaintiff shall collect the same from the lessees in every Fasli according to the terms of the lease and executed by the 1st to 2nd plaintiff ;
(5) that the lessees shall pay the lease amounts to the 2nd plaintiff in every Fasli from June, of Fasli 1311 until the period of the lease granted to the said lessees; that the said lessees shall after the expiry of their lease, deliver possession of the B-schedule villages to the 2nd plaintiff and that 1st plaintiff and defendants shall send yadasts to the lessees
(6) that in regard to the said lease as obtained from Fasli 1310, at the rate of Rs. 12,500 per Fasli, although the 1st defendant has enjoyed the income of the village of Tiruvettiyur comprised in schedule -A for Fasli 1310, yet it has been settled that there were no mesne profits and, therefore, both parties have agreed to the enjoyment of the 1st defendant as aforesaid and have given, up the same in favour of the 1st defendant and that the security furnished by D. Sundraraja Aiyangar for the defendants shall, therefore, be cancelled;
(7) that defendants shall draw the amount in Court deposit, that is, the sum of Rs. 10,000, being the total of Rs. 5,000, the amount of 2nd instalment of Fasli 1310 and of Rs. 5,000, the amount of 1st instalment of Fasli 1311 for the B-schedule villages which had been collected from the lessees through the, Receiver ;
(8) that the 2nd plaintiff shall according to the' due date pay to 1st plaintiff and the defendants their respective shares equally in respect of Rs. 7,500 left after deducting the amount of Rs. 5,000 collected from the lessees for the 1st instalment as per para. 7 aforesaid out of Rs. 12,500 forming the lease amount of Fasli 1311 in respect of the villages described in schedules A and B of the ' plaint and shall also pay during every Fasli at the rate of Rs. 12,500 per Fasli from Fasli 1312 to Fasli 1334 in accordance with the terms of the lease deed ;
(9) Scored out by the parties ;
(10) that the 2nd plaintiff shall cause the lease amounts appertaining to 1st plaintiff's 1/4th share and due by 2nd plaintiff to 1st plaintiff as shown in para. 8 hereof, to be credited towards the full amounts of principal and interest due by 1st plaintiff: under the hypothecation debt bond of Rs. 30,000, dated 9th October 1900 executed by 1st plaintiff to 2nd plaintiff and under the hypothecation debt bond of Rs. 21,000 executed in 1901 to M.R.M. A. Subramanian Chettiar ;
(11) that if in consideration of the balance of debt to be discharged after giving credit as per para. 10 hereof to the hypothecation debt bond of Rs. 30,000 executed by 1st to 2nd plaintiff as aforesaid and, to the hypothecation debt bond of Rs. 21,000 executed to M.R. M. A. Subramanian Chettiar as well as towards the sums of interest accruing thereon, the 1st plaintiff's 1/4th share is to be sold thus, that is to say, the two villages of Koothaloor and Pilar at a price of not less than Rs. 5,000, those amounts of sale, which the 1st plaintiff credits towards the debt of Rs. 30,000 due to 2nd plaintiff and towards the debt of Rs. 21,000 due to M.R.M. A. Subramanian Chettiar, shall be received and release deeds given by the respective individuals; that 2nd plaintiff shall bind himself to pay to such vendees so much of the lease amount as is found due, by dividing the amounts of lease appertaining to 1st plaintiff's 1/4th share in the aforesaid rates of sale amounts now proposed ;
(12) that even if it happen that defendants' share also should be sold as per para. 11 above, the 2nd plaintiff shall bind himself to pay to the vendees the amount of the, defendant's share ;
(13) that if the 1st plaintiff should in any manner fail to pay within. 3 years' time from this date the amounts of principal and interest of the hypothecation debt bond of Rs. 30,000, executed by the 1st plaintiff to 2nd plaintiff and of the hypothecation debt bond executed for Rs. 21,000 to M.R.M. A. Subramanian Chettiar, the said 2nd plaintiff and the said M.R.M.A. Subramanian Chettiar shall after the expiry of the said period of 3 years, take action against 1st plaintiff's 1/4th share through Court without any objection and recover the same
(14) that with reference to the hypothecation of the village of Panangadi under the said hypothecation debt bond of Rs. 21,000 executed to M.R.M.A. Subramanian Chettiar jointly by 1st plaintiff and by her husband Vedayanasani Teyer Aver-gal, the 2nd plaintiff shall see to the redemption and lease of the said hypothecation; and
(15) that each party shall bear his or her own costs.
5. Now it is not clear what the Subordinate Judge meant by consistent with the plaint.' Strictly speaking it may be contended that the whole compromise is consistent with the plaint as it rejects the exclusive title of the first plaintiff to the six villages on the basis of which the 1st and the 2nd plaintiffs sued. Obviously, however, the Subordinate Judge did not take this view or he would not have passed the decree at all. Although he has expressed himself badly we do not think the Subordinate Judge intended to do more than to comply with the provisions of Section 375 by passing a decree in accordance with the compromise in so far. as it related to the suit, and that this must be taken to be the effect of his decree. On any other view it would be necessary to consider how far the present defendants arid their .father, who got possession of one of the suit villages on the strength of this compromise, are now at liberty to raise an objection of this kind. It is then said to be res judicata that this portion of the compromise is not included in the decree by reason of the order of the succeeding Subordinate Judge in the execution petition H. Now it is clear that this Subordinate Judge treated the decree (Exhibit D) as decreeing the compromise in so far as it related to the suit and in this, we think, he was right, He also held that the decree (Exhibit D) did not award the remedy sought in the execution petition. Here again, we think, he was right for the decree (Exhibit D) can only be read as declaratory of the plaintiff's right to rent and not as directing payment of it by the decree as often as it fell due. The Subordinate Judge, however, went further and held that this part of the compromise did not relate to the suit and, therefore, no decree could be consi(sic) ed to have been passed with regard to it. We think he was wrong in holding that this part of the compromise did not relate to the suit for the reasons already given in an earlier part of the judgment, and this was a mistake of law which according to the decisions of this Court, collected in Mangatathammil V. Narayanaswgmi Aiyer 17 M.L.J. 250 does not give rise to res judicata in a subsequent, proceeding in which the operation of his order is not called in question.
6. The contention that this part of the compromise was not embodied in the decree appears to be material only in so far as it bears on the objections for want of registration. It is said that the effect of this part of the compromise is to create a new lease from the plaintiffs and their .sister in favour of the defendant's father, and that such lease is bad for want of registration under Section 17 of the Indian Registration Act. What the compromise does is to provide that the registered lease (Exhibit B) shall be accepted by the present plain tiffs and that they, shall be entitled each to 1/4th of the rent under it.
7. Now we are not clear that we are bound to construe the compromise as creating a new lease so as to give an opportunity for the objection, but even if we are, we think, the objection fails In Bindersi Naik v. Ganga Saran Sahu 25 I.A. 9 in the Privy Council Lord Watson delivering their Lordships' judgment laid it down that the provisions of the Registration Act ' do not apply to proper judicial proceedings whether consisting of pleadings filed by the parties or orders made by the Court.' Applying this test it would appear to be immateria whether this part of the compromise was embodied in the decree or not, as the compromise petition (Exhibit D) was a pleading properly filed by the parties, and that it maybe sued on without registration. In a later case Prannl Anni v. Lakshmi Anni 26I. A. 101 in which the same learned Lord again delivered their Lordships' judgment, the parties entered into a razinamah about the suit lands which was submitted to the Court and a decree passed in terms thereof. They at the same time entered into an agreement of union about certain lands excluded from the suit which was not submitted to the Court, Appended to the razinamah, however, was a note mentioning the agreement of union and a release which had been taken with regard to it. Their Lordships held that the terms of the agreement of union were related in the razinamah by way of remark' and that the Subordinate Judge was not asked to consider and give effect to' them and that they were not, like the razi namah in so far as it was submitted to and acted upon judicially by the Judge a step of judicial procedure not requiring registration. If, their Lordships went on to observe, the parties had settled the suit upon the terms that they were to take half shares not only of the suit lands but also of the lands excluded from the suit, had informed the learned Judge that those were the terms' of the compromise and had invited him by reasons of such compromise to dispose of the conclusions of the suit, their Lord ships see no reason to doubt that the order of the learned Judge, if it had ' referred to or narrated these terms of the compromise, would have been judicial evidence, available to the appellant, that the respondents had agreed to transfer to her the moiety of land: now in dispute.' In our opinion this passage clearly means that the compromise could have been enforced, although not registered, even about the lands not included in the suit. The learned' Judges who decided Raghubans Mani Singh v. Mahabir Singh (1905) 2 A.L.J. 564 understood their Lordships' judgment in the same way. In Birbhadra Nath v. Kalpatrau Panda 1 C.L.J. 388 and Kali Prasanna Khasuavish v. Mathura Nath Singh 34 C.v 191 it was held that these decisions of their Lordships did not justify the view that petitions of compromise did not require registration in so far as they dealt with matters which were not the subject of the suit but in the last mentioned case it is expressly laid down that a petition of compromise in so far as it relates to properties in suit does not require registration under Section 17.' The petition of compromise, (Ex. D 1), undoubtedly relates to the properties in the suit and so in either view it does not require registration. Mr. Sundra Iyer, however, argues that in Bindersi Naik v. GangaSaran Sahu 25 I.A. 9 and Muthur Vijaya Ragunatha Udayana Tevar v. Thandavaraya, Tambiran 22 M.k 214 their Lordships were not dealing with leases which are governed by Clause (d) of Sub-section 1 of Section 17 but with instruments covered by Clauses (6) and (c) as to which Sub-section 2 creates various exemptions, amongst others VI, any decree or order of a Court or any award.'
8. We are not prepared to put-'any such rusticated construction on the observations of their Lordships which mention pleadings as well as orders and decrees and appear to us to proceed rather upon the view that in the absence of clear and unambiguous words the legislature cannot be supposed to have intended to make the proceedings of the Courts dependent for their efficacy and validity on registration by one of the parties. Taking decrees and orders generally to be outside the Scope of Sub-section 1 of Section 3 of the Registration Act, we cannot infer that decrees and orders relating to leases are brought within it, simply because certain. other decrees and orders viz: those relating to Clauses (6) and (c) of Sub-section 1 are expressly excepted by Sub-section 2. Sub-section 2 is in the nature of a proviso and in West Derby Union v. Metropolitan Life Assurance Company (1897) 6 ac 7 Lords Watson and Herschell observe that provisoes are often inserted unnecessarily excepting cases which would not otherwise fall within the enactment for the purpose of removing apprehensions, and that cases which are otherwise clearly outside the scope of an enactment cannot be brought within it by any inference founded on the terms of the proviso. Having regard to their Lordships' decisions, we are of opinion that decrees and orders are clearly outside the scope of Section 17 whether they relate to leases or not.
9. We think that the objection for want of registration under Section 107 of the Transfer of Property Act fails similarly as that section does not apply to decrees and orders.
10. The next contention is that the defendants are not bound to pay because the plaintiffs and their sister have never put them in possession of the rents payable by the Sivaganga lessees in respect of the 5 villages which they are entitled to.
11. Under the compromise the defendants as lessees are entitled to possession and profits on the one hand and bound to pay rent on the other, and under Section 108 (6), Transfer of Property Act, a lessor is bound, in the absence of a contract to the contrary, at the lessee's request to put him in possession of what is leased which in this case includes the rent payable by the Sivaganga lessees.
12. What then is the sort of possession of these rents which the plaintiffs are bound to give the defendants? At Common Law for legal possession or seisin of rent, not only attornment by the tenant but also receipt of rent was necessary. (Pollock and Wright on Possession, pages 36, 52.) We have not been referred to nor have we succeeded in finding out any English case where the point is expressly decided. In Fleelis v. Blair 18 C.B.N.S. 90 it was held that a conveyance operating under the Statute of Uses would of itself without more give actual possession 'of rent within the meaning of Section 26 of 2 Will 4 C.n 45 but that a conveyance at common law would not of itself give such possession. What is required in this country in addition to the conveyance has been considered by this Court with reference to leases or izaras of villages or other parts of permanently settled estates which are of common occurrence and it was held in the Zemindar of Vizianagaram v. Behdra Suryanarayana Patrulu 25 M.k 587 that according to the common law of the land which especially prevails in zeminduri and similar estates, the delivery of possession when the owner transfers the estate or a portion thereof by sale, gift, lease or otherwise, is by the issue of orders or notices to the karnamn or other village officers and also, though not usually, by a general proclamation addressed to the ryots or others in occupation giving' notice of the transfer and requiring them to attornment and pay rents to the transferee, which, as will be seen, is very like what the defendants' father stipulated for in this case. The effect of this is that in this country attornment by the tenants, liable to pay the rent, and receipt of rent from them are not necessary to give the transferee possession of the rent. This must, however, we think, be limited to oases where the transferor himself has possession to give, for a transfer by a claim ant out of possession, even if followed by the usual notice, could not be said to amount to a delivery of possession. Here it is to be gathered from Exhibits A, B and C to which the defendants' father was a party that the Sivaganga lessees took a lease of the 5 villages from the present plaintiffs' mother and paid her rent in advance to the extent of Rs. 60,000. If so the mother was in possession of the rent and her possession would enure to the benefit of her heirs, the plaintiffs and their sister. Apart from the special contract, therefore, it would appear that all that the plaintiffs and their sister could be called upon to do to give possession of the rent in question to the defendants' father was to send notices to the Sivaganga lessees to pay it to him and this they have admittedly done.
13. The Subordinate Judge has gone further and found that, by the terms of the compromise (Ex. D-l) read with Ex. B, all that the plaintiffs' sister under Ex. B and all that she and the plaintiffs under Ex. D-l were required to do was to send notices to the Sivaganga lessees and in this we fully agree with him. Exhibits A and B, show that the plaintiffs' sister, a young gosha lady, was not in a position to. bring suit herself financially or otherwise and that the defendants' father was to have, sole conduct of the suit to be instituted, against her-sisters. During the suit he was, to have the rent due from the Sivaganga lessees paid into Court, afterwards he was to get it collected and at the expiration of his lease, he was to recover the villages, from them amicably or through Court. The defendants' father must have known all about these six villages before he advanced' Rs. 30,000 to the plaintiffs' sister in December 1900 and he certainly had full notice of what could be urged in favour of the zemindar in the written statement of the present plaintiff in Original Suit No. 18 of 1901 (Exhibit-N), and in connection with the unsuccessful attempt to make the minor zemindar a party to that suit in August 1901 (Exhibit C.) Yet in terms of the compromise Ex. D-l he stipulates that the plaintiffs (here) shall refrain from interfering with the said villages during his lease, that he is to collect the rent from the Sivaganga lessees according to the terms of the lease (Exhibit B) and that the plaintiffs and their sister are to send yadasts or notices to pay to the lessees, This, it appears to us, was all they were required to do to give possession and they have done it. With regard to the further contention that the plaintiffs agreed to forego their rent until the defendant succeeded in recovering it from the lessees we agree with the lower Court that no such-agreement is proved and dismiss the appeals with costs. The memorandum of objection is dismissed but without costs.