1. I have had the advantage of perusing the judgment which my learned brother is about to deliver and while I agree with his conclusion I would venture to add a few words of my own, especially since the question argued is bereft of authority in. this court and is important from the point of view of the construction of the Registration Act. Is the compromise decree charging properties specifically mentioned in the schedule thereto but which were not in terms the subject-matter of the litigation, compulsorily registrable under Section 17(I) of the Registration Act? That it is a document which purports to create right, title and interest in immoveable property of the value of more than Rs. 100 has not been questioned; and but for the fact that Section 17(2) Clause (vi) as it originally stood exempted a decree or order of court from being compulsorily registered, the decree in question would, of necessity, be registrable. By the amendment made by Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929, the words "except a decree or order expressed to be made on a compromise & comprising immovable property other than that which is the subject-matter of the suit or proceeding" have been added to Clause (vi) of Section 17(2). The result of this amendment is to make a decree passed on a compromise comprising immoveable property other than' that which is the subject-matter of the suit compulsorily registrable. Do the immoveable properties over which a charge has been created, when the provisions regarding instalment. payment are not fulfilled, form the subject matter of the suit?
Apparently, opposing views on a topic similar to the one in question have been expressed by Venkatasubba Rao J. and Venkataramana Rao J. in Govindaswami v. Rasu, 58 Mad. 781 and 'Ramayya v. Rangaraju', (1938)-1 Mad LJ 325 respectively. In the earlier case the question arose in the following way. Pending a suit) for the recovery of a sum of money, the plaintiff got attached before judgment certain properties belonging to the defendant and later on the parties entered into a compromise and a decree was made embodying the terms. The compromise decree provided for the payment of the amount claimed in three months and created a charge for the sum decreed over the properties that had already been attached. In subsequent proceedings the question raised was whether the properties which were attached before judgment and became incorporated in the compromise decree with a charge being impressed upon the same, are the subject-matter of the suit or not. The learned Judge was of opinion that an application for attachment was a "proceeding" within the meaning of Section 17(2)(vi) of the Registration Act and therefore the attached properties must be deemed to have been the "subject-matter" of a suit or "proceeding." This decision does not in so many terms say that even though the properties were not originally included In the plaint or any relief claimed against them at the time the suit was filed, by subsequent action, if the parties wished to impress upon such properties a relief which was not originally asked for, such properties could be said to be the subject-matter of the suit Reliance was placed on this decision by Mr. R. Gopalaswami Aiyangar for the respondent that in order to understand the implication of the term "subject-matter of the suit" what is finally imparted by the decree should be the guiding factor and not on what the plaintiff intended originally to fasten his claim. It seems to me that the construction that is sought to be put on this decision is a somewhat far-fetched one.
On the other hand, Venkataramana Rao J. decided a case somewhat on the same lines as the present one. See Ramayya v. Rangaraju, (1938) 1-Mad. L. J. 325. Where a plaintiff ' filed a suit on a promissory note executed by ". a Hindu father against the executant and his undivided sons claiming a decree against the father personally & against the sons by a decree against the assets of the family, there was a compromise by which the defendants were directed to pay the amount decreed in two instalments and as security for the due payment of the said sum a charge was made on certain properties of the family. The question arose whether such a compromise decree was compulsorily registrable under Section 17(2) Clause (vi) of the Registration Act, because it comprised immovable property other than that which was the subject-matter of the suit or proceeding. The learned Judge held that the "subject-matter" of the suit in the clause contemplates specific Immovable property which should have been the subject-matter of the litigation and that there must be a claim or right in, or to, the specific immovable property asserted in the litigation and the relief sought in respect thereof. The prayer for a decree against the assets of the joint family did not make any item of the joint family property the subject-matter of the suit. I am in respectful agreement with this view. The contention of Mr. R. Gopalaswami Aiyangar that the compromise decree in question is not compulsorily registrable cannot therefore be accepted.
2. If the compromise decree is compulsorily registrable what then is the venue of registration? The scheme of the Registration Act as embodied in Part III comprising Sections 17 to 22 deals with what are registrable documents and what are not. Part V relating to Sections 28 to 31 deals with the place or venue of registration. Section 28 is a general section which lays down the place for registering documents relating to land and what is stated therein is that save as otherwise provided in that Part, every document mentioned in Section 17, Sub-section (1), clauses (a), (b), (c), (d) and (e) and Section 17, Sub-section (2), in so far as such document affects immoveable property, shall be presented for registration in the office of the Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. By the amendment of Clause (vi) of Sub-section (2) of Section 17 which is in the nature of an exception, (the exception has already been noted) a compromise decree comprising immoveable property other than that which is the subject-matter of the suit or proceeding would come within the compulsorily registrable documents mentioned in Section 17, Sub-section (1). Clause (b). Therefore at first sight, but for the saving clause in the first portion of the section a compromise decree like the one we have to deal with ought to be registered under Section 28. Section 29 is in the nature of an amplification of Section 28 and is covered by the saving clause of Section 28. Sub-section (1) of Section 29 exempts a copy of a decree or order from its operation and the registration of the copy of decree or order is dealt with in Sub-section (2).
Prior to the Repealing and Amending Act 32 of 1940, in the place of the existing words "not being a document referred to in Section 28, or a copy of a decree or order" what originally stood" there were the words "other than a document referred to in Section 28 and a copy of a decree or order". It is conceded by both parties that the amendment does not materially affect or alter the scope of the section. Sub-section (2) lays down the venue of registration of a copy of the decree and it is to the effect that a copy of the decree or order may be presented for registration in the office of the Sub-Registrar in whose sub-district the original decree or order was made, or, where the decree or order does not affect immoveable property in the office of any other Sub-Registrar under the State Government at which alt the persons claiming under the decree or order desire the copy to be registered. It is therefore clear that if the decree or order affects immoveable property it need not be registered in the office of the Sub-Registrar within whose jurisdiction the property is situate but can be registered in the office of the Sub-Registrar in whose sub-district the Court which made the decree is situate. By the enactment of Sub-section (2) is it open to the parties to have the option of getting a copy of decree of court affecting immoveable property registered in the office of the Sub-Registrar within whose jurisdiction the court is not situate but within whose jurisdiction the property lies? That this is the way in which this section has been understood is clear from the Madras Registration Manual, Part II, page 91, Order 292 (b) which says:
"A copy of a decree or of an order of court relating to immoveable property may be presented for registration either in the office of the Sub-registrar in whose sub-district the property or any portion of it is situate or in the office of the Sub-Registrar in whose sub-district the original decree or order was made."
The respondent contends that this interpretation of Section 29, Sub-section (2) is opposed to the general canon of construction contained in the maxim expressio unius est exclusio alterius (express mention of one thing implies the exclusion of another). But the difficulty in accepting this contention is that whereas in Section 28 with regard to the documents mentioned therein it is obligatory that they should be presented for registration in the office of the Sub-registrar within whose sub-district the whole or some portion of the property is situate, and the words used are "shall be presented", in Sub-section (2) of Section 29 it is optional to the party to produce the document for registration before the Sub-Registrar within whose jurisdiction the court is situate. The section begins with the words "a copy of a decree or order may be presented..." It is therefore not obligatory for the party to have a compromise decree affecting immovable property registered by the Sub-Registrar in whose jurisdiction the court is situate. If it is not obligatory and some kind of discretion is allowed to the party, then it necessarily follows that since the document is one compulsorily registrable under Section 17, Sub-section (1) Clause (b) it has to be presented for registration in the office of the Sub-Registrar where the documents referred to in that sub-section should be presented; that is the Sub-Registrar within whose jurisdiction the property is situate by the application of Section 28.
In my view, Sub-section (2) of Section 29 gives the parties an enlarged right with regard to the presentation of a copy of a decree or order, which they would not have if the instrument affecting immovable property is not a copy of a decree or order. Once again, looking at the scheme of Part V of the Registration Act comprising Sections 29 to 31, it is possible to see that Sections 29, 30 and 31 are enabling and enlarging provisions to the imperative restriction contained in Section 28, for Section 30 gives the District Registrar as well as the Registrar of a Presidency Town a discretion to register instruments even though the properties are situate within the jurisdiction of a Sub-Registrar subordinate to him. Section 31 provides for the registration or acceptance for deposit at private residence. As stated already these are enabling provisions which take away from the rigour of Section 28.
It is not disputed that a document compulsorily registrable under Section 28, can be registered under Sections 30 and 31, that is, it need not be produced before the Sub-Registrar but may be taken to the District Registrar or a Registrar in the Presidency Town. It might as well be registered by the officer coming to the private residence of the party. If therefore one can avail of the provisions of Sections 30 and 31 and have a document properly registered, I do not see any reason why a compromise decree or order relating to immovable property should not be registered at the place where the properties are situated. Mulla in his Indian Registration Act, at page 140, has given the following note :
"COPY OF DECREE. A consent decree comprising immovable property which is not the subject-matter of the suit must be registered. As decrees should always remain on the records of the court registration must be effected by a person claiming under the decree presenting a copy of the decree for registration to the Sub-Registrar in whose district the immovable property is situate."
From this note it appears as if the learned author was of opinion that a compromise decree affecting immovable property which is not the subject-matter of the suit cannot be registered by a Sub-Registrar in whose jurisdiction the court is situate but of necessity must be presented for registration to the Sub-Registrar in whose jurisdiction the immovable property is situate. This interpretation completely loses sight of the enabling provision contained in Section 29, Sub-section (2) where the words used are "a copy of a decree or order may be presented for registration......" which are general in terms and are not restricted to a copy of decree or order affecting immovable property which is the subject-matter of the suit or proceeding. Though Mullah cites -- 'Vinayak v. Parsappa', (40 Bom. L.R. 160), as an authority for the proposition that the copy of the decree should be presented for registration to the Sub-Registrar in whose sub-district the immovable property is situate, on a careful perusal of the judgment in that case we do not think that the learned Judges have decided the case in that manner. In the earlier part of the judgment, Rangnekar J. discusses the question regarding the compulsorily registrable nature of a decree or order of a court made on a compromise and relating to immovable property which is not the subject-matter of the suit, and he holds that such decrees or orders are compulsorily registrable. Then he refers to Sections 28 and 29 and the provisions of Sections 17 and 18. The learned counsel for the respondent relies on the following sentences in that judgment:
"A decree or order which is compulsorily registrable will obviously fall under Section 28 and if nothing more had been said. Section 29 would not apply to such a decree or order. But the legislature has deliberately put a copy of a decree or order in Section 29 as being a document which is not to fall within Section 28. Section 29 ma.kes a clear distinction between documents other than the documents mentioned in Section 28 and a document of the nature of a copy of a decree or order. Unless, therefore, the words 'copy of a decree or order' are treated as a surplusage -- which is clearly not allowable -- the intention seems to be to put a copy of a decree or order on a special footing, and although if Section 29 had not been enacted, a copy of a decree or order which is compulsorily registrable would have come under Section 28, it seems to me that by enacting Section 29 in this particular way, the legislature has indicated that a copy of a decree or order compulsorily registrable can be registered. If there was no such distinction it would have been sufficient to enact Section 29 without the words 'copy of a decree or order' and the scheme would have been complete."
In my opinion, this discussion has failed to attach sufficient importance to the enabling provisions which follow Section 28. The learned Judge there has not adverted to Sections 30 and 31 which themselves allow documents to be presented for registration either at the office of the District Registrar or at private residence. I am of opinion that the decree in this case has been properly registered and that the last instalment alone is not barred.
3. This appeal has been placed before a Bench at the instance of Chandra Reddi J. as it raised a question of importance under the Registration Act, bare of authority, for which it was desirable that an authoritative ruling should be obtained.
4. The short point of law under the Registration Act is whether a compromise instalment decree passed in a money suit in which a charge was created over items of immovable property was validly registered under the Registration Act. The decree-holder registered this decree under Section 28 in the Sub-Registrar's Office at Karaikudi where the charged property was situated. The learned Subordinate Judge took the view that such a decree should have been registered under Section 29 of the Registration Act in the office of the Sub-Registrar in whose sub-district the document was executed. Holding that the decree had not been validly registered, he dismissed an execution petition filed on 4-4-1946 to execute the compromise instalment decree, which was dated 30-6-1938.
5. The other relevant facts for determination of the application on merits also are these. The compromise decree was for Rs. 6841-13-9 payable in three instalments, (1) Rs. 1000 by 16-9-1933, (2) Half the balance by 13-5-1939 and (3) The remaining balance by 13-5-1940 with the usual provision that if default was committed in paying any instalment, the decree-holder would be entitled to realise the entire balance due immediately. The first instalment was paid by the due date 16-9-1938. The second instalment was not paid by 13-5-1939 but four payments made subsequent to that date by the petitioner have been appropriated towards the second instalment due, i.e., Rs. 300 paid on 3-6-1939, Rs. 900 paid on 17-6-1939, Rs. 500 paid on 1-8-1940 and Rs. 100 paid on 16-12-1948.
The learned Subordinate Judge found that In view of adjustments made between the parties, execution for the balance due on the second instalment was not barred by limitation. There is no doubt that the third instalment due on 13-5-1940 is not barred on this execution petition filed on 4-4-1946 if the decree is held to be validly registered, Art. 182 of the Limitation Act extending the limitation period for execution in cases where court decrees have been registered to six years.
6. We think the view taken by the learned Subordinate Judge that this compromise charge decree could only be registered under Section 29 of the Registration Act is erroneous. Registration of such a charge decree is clearly compulsory under Section 17 of the Registration Act which provides for documents for which registration is compulsory. Any decree or order of a court, which creates, declares, assigns, limits or extinguishes any right, title or interest in immovable property would come within the scope of Section 17(1)(b) but for Section 17(2)(vi) which excludes decrees or orders of a court from this category
"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."
This exception to Section 17(2)(vi) was the result of the Transfer of Property (Amendment) Supplementary Act, 1920. So we have Section 17(2)(vi) really creating an exception to an exception which can only bring such a decree or order back into the category of documents compulsorily registrable.
7. It is urged by Mr. Gopalaswami Aiyangar that the present compromise decree does not fall into the excepted category under Section 17(2)(vi) because the property charged was the subject-matter of the suit or proceeding in that a charge was asked in the plaint on the items charged. There is indeed a note on the decree under execution by the court that the compromise does not contain anything extraneous. Venkataramana Rao J. considered this very point in -- 'Ramayya v. Rangaraju', (1938) 1 Mad. L.J. 325 and held that a precisely similar decree should have been registered under Section 17 clause 2(vi) and not having been so registered, the charge could not prevail. As observed by Venkataramana Rao J. the expression "subject matter of the suit" is not defined in the Registration Act. A claim to have a liability satisfied out of the general estate of a person by a charge on several items alleged to constitute that estate, is not enough to bring these items into the category of subject-matter of what is substantially a money suit. These items would become the subject-matter of litigation only in the event of claims made in enforcing a charge. The primary method of registration which is intended to give notice and publicity of conveyances of immovable property and charges and burdens on them is in the office of the Sub-Registrar within whose jurisdiction the property is situate. It would be extremely difficult to hold that a document so registered, as required in the case of a document compulsorily registrable, has been invalidly registered.
8. Section 29 of the Registration Act makes provisions for registering other documents. Under Section 29(1) every document (not being a document referred to in Section 28 or a copy of a decree or order) may be presented for registration in the office of the Sub-Registrar in whose sub-district the document was executed or in the office of any other Sub-Registrar at which all persons concerned desire it to be registered. Under Section 29(2) a copy of a decree or order may be presented for registration in the office of the Sub-Registrar in whose sub-district the original decree or order was made. There is no obligation on parties to register documents contemplated by Section 29(1) and (2) though it is open to parties to register in order inter alia to obtain the benefit of Art. 182 of the Limitation Act. In -- 'Vinayak v. Parsappa', 40 Bom. L.R. 160, Section 29 of the Registration Act was considered by a Bench of the Bombay High Court who held that it was sufficient if a copy of a court decree was sent for registration without the original. It is interesting here to note that Mulla in his Registration Act commentary under Section 29, at page 140 of the 4th edition after stating that a consent decree comprising immovable property, which is not the subject-matter of the suit must be registered, cites -- 'Vinayak v. Parasappa', 40 Bom. L.R. 160 as authority for the position that a copy of such a decree should be presented for registration to the Sub-Registrar in whose district the immovable property is situate. -- 'Vinayak v. Parasappa', 40 Bom. L.R. 1GO does not however decide the venue of registration which Mulla has in our opinion rightly assumed to be that contemplated by Section 28, viz., the district in which the immovable property was situated.
9. Our attention has been drawn to Rule 292(b) of the Registration Manual, Part II. page 91. According to this rule as interpreted in practice by the Registration department, a person registering such a decree as that before us has the option of registration either under Section 28 or under Section 29(2). On a careful consideration of these two sections, we are of opinion that this is the correct legal position. Such a decree as that we are considering is clearly compulsorily registrable but Section 29(2) allows registration to be done at the option of the party in the office of the Sub-Registrar in whose sub-district the original decree or order was made. There is nothing whatsoever in the Registration Act which renders registration effected in the office of the Sub-Registrar in whose jurisdiction the property is situated invalid in law. We have no hesitation in finding that this compromise decree has been validly registered and that execution is governed by Art. 182 of the Limitation Act.
10. The recovery of the second instalment, which fell due on 13-5-1939, was however prima facie time barred on this execution petition filed on 4-4-1946. In -- 'Ranglal Agarwalla v. Shyamlal Tamuli', ILR (1946) 2 Cal. 552 (F.B.) a Full Bench of the Calcutta High Court held that a decree such as this gave an option to the decree-holder on the occurrence of a default, either to demand immediate payment of the whole amount or still to abide by the instalments at his choice. Accordingly after a default has occurred in the payment of instalments, an application for execution for the recovery of the subsequent instalments as such is maintainable, where there is nothing to show that the decree-holder had previously sought to enforce the default clause; the application being governed by Article 182(7) of the Limitation Act. There is nothing to show that the default clause was ever sought to be enforced by the decree-holder. To save execution being barred, the decree-holder relied on alleged adjustments. The mere payment of sums of money after the second instalment fell due would not be sufficient to save limitation. On default of any one instalment, the whole decree amount becomes due and limitation begins to run from the date of default in cases where the decree-holder seeks to enforce the default clause. The execution petition details two separate adjustments. The second one is said to have been made on 1-8-1940 when Rs. 500 was paid to the decree-holder under an agreement that half the balance would be paid by 12-5-1941 and the remaining half by 12-5-1942 and that, in default of such payment, the plaintiff would be entitled to execute the original decree. This agreement is said to have been recorded in E. A. No. 653 of 1940 on 1-8-1940 but these execution records are said to have been destroyed when the records of the Devakottai courts were burnt in the 1942 disturbances.
We are far from satisfied that there is any acknowledgment or agreement in writing signed by any of the defendants as required by Section 20 of the Limitation Act which would save limitation so far as the second instalment under the original decree is concerned. When there was default in payment of that instalment, the decree-holder had the option of executing the decree for the entire balance and failed to do so within six years of that default. We think that execution for the second instalment is barred though the decree-holder is entitled to appropriate any payments made to wards the second instalment. The decree-holder is only entitled in execution to the unpaid third instalment to recover which he has six years time from 13-5-1940. Subject to verification, execution will proceed for recovery of the third instalment only under the original compromise decree.
11. The appeal succeeds in part. In the circumstances, we direct the parties to bear their own costs throughout.