(1) This is a second appeal against the judgment and decree in A. S. No. 310 of 1954, on the file Of the District Court, South Arcot confirming the decree in O. S. No. 83 of 1953 on the file of the Court of the Subordinate Judge, Cuddalore.
(2) Meenakshi Ammal, the plaintiff in the suit, O. S. No. 83 of 1953, sued her husband, the first defendant and his brother, he second defendant for partition and separate possession of a half share in the suit properties and for past and future mesne profits. In an earlier suit O. S. No. 137 of 1950, on the file of the Sub-Court, Cuddalore, Meenakshi claimed separate maintenance from her husband, the first defendant alleging desertion on his part. That suit ended in a compromise between the two spouses and a compromise decree was passed on 21-12-1951. The amount of maintenance payable by the husband to the wife was fixed oral Rs. 150, per mensem and a charge on the properties in that suit was created in favour of the wife for the due payment of the maintenance amount The razinama between the parties also provided that the properties comprised in that suit, O. S. No. 137. of 1950 were to be enjoyed in common by the husband and the wife as co-owners and that the income should be utilised for the maintenance of the wife as well as for the maintenance of the husband. The compromise further provided that if the husband and the wife could not amicably enjoy the properties in common, the wife could have a division of the properties effected by metes and a division of the properties e bounds and obtain a moiety thereof. The parties to the compromise also agreed that neither of them could alienate any item of the properties without the concurrence of the other. All the terms of the razinama were reduced to writing and were incorporated as part of the razinama decree. But the operative part of the decree however only ran as follows:.......... this court both in pursuance of the said deed of compromise order and decree among other terms contained in the compromise set out below as follows: 1.That the maintenance payable by the first defendant to the plaintiff is fixed at Rs. l50 per mensem and the same shall be paid from 5-7-1950 by first defendant. 2. That the properties mentioned in the compromise and also the properties of the first defendant alienated to the various persons shall he a charge for the payment of the above maintenance. 3. That the properties in the hands of defendants (2 and 3) be proceeded against lest in case there is any need for realising the maintenance from those properties.'
(3) The suit out of which this appeal arises was filed by Meenakshi to enforce partition as per one of the term of the razinama alleging that she could no longer continue amicably with her husband.
(4) The first defendant, the husband, remained ex parte at the trial of the suit. The second defendant is the divided elder brother of the first defendant. Se claimed to have purchased the suit, Property on 17-12-1952 from the first defendant by a registered sale deed for an alleged consideration of Rs. 5000. His main defence to the suit was that the compromise decree required to be registered compulsorily under the provisions of the Indian Registration Act, and not being registered was inadmissible in evidence, and that the plaintiff can have to relief granted to her on foot of tile compromise.
(5) Both the courts below held that the compromise decree was not compulsorily registrable that it was therefore admissible in evidence and that the plaintiff's claim was well founded. The was therefore. granted a preliminary decree for partition as prayed for. An enquiry into mesne profits, past and future, was directed to he held under O. XX, R. 12, C.P.C. This second appeal has been preferred by the second defendant.
(6) The only question that arises for determination is whether Ex. A-2, the Razinama decree in O. S. No. 137 of 1950 requires compulsory registration under the provisions of the Indian Registration Act. Clauses (a) to (e) to Sec. 17(1) of the Act provides for compulsory registration of certain kinds of documents and instruments. Section 17(2), in so far as it is material, is as follows:
'Nothing in clauses (h) mid (c) of sub-see. (1) applies to:.............. (vi) any decree or order of a court except a decree or order expressed to be, made an a compromise and comprising immovable property other than that which is ache subject-matter of the suit or proceeding;'
Clause (vi) set out above was amended by the Transfer of Property (Amendment.) Supplementary Act of 1929. Prior to the amendment clause (vi) stood as follows:
'any decree or order of a court and any award'
The amendment omitted the words 'and any award' and introduced the words '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.'
(7) The scope of the 1929 amendment was to limit the operation of clause (vi) to any decree or order of a court except a decree or order which was the result of a compromise and which comprised immovable property extraneous to the suit or proceeding which ended in the compromise. In other words a compromise decree or order comprising immovable property not forming the subject-matter of the suit or proceeding ending in the compromise is not exempt from registration, but compulsorily registrable provided the decree or order fell within the mischief of one or other of the categories of instruments under S. 17(1) clauses (a) to (c) of the Act.
(8) The compromise in O. S. No. 137 of 1950 related only to the properties forming the subject' matter of that suit. The suit was to enforce a claim for maintenance and the, Plaintiff Meenakshi specifically prayed for a charge on several items of immovable properties described in the plaint schedule. It cannot therefore be said that the compromise came within the exception provided for under clause (vi) so as to attract compulsory registration. it mug however be remembered that all the terms of the razinama were not brought into the operative part of the compromise decree. The provision in thin compromise enabling the plaintiff to get, a division by metes and bounds of a half share in the suit properties was a term in the razinama but was not a term of the executable portion of the compromise decree. The question for consideration is whether the words 'decree or order of a court' in clause. (vi) of S. 17(2) includes only the operative part of the decree and not the terms of the razinama which though not formally included in the operative part yet were made part of the decree, inasmuch as the compromise was recorded by the court and a decree on foot thereof was granted and issued.
(9) In Hemanta Kumari Debi v. Midnapur Zamindari Co., Ltd., 46 Ind APP 240: AM 1919 PC 79, Lord Buckmaster delivering the judgment of the Board and referring to clause (vi) of S. 17(2) of the Act and to the provisions of the Civil Procedure Code for recording a compromise observed as follows.
'In the first place, it is plain that the agreement or compromise, in whole and not in part, is to be recorded and the decree is then to confine its operation to so much of the subject-matter of the suit as is dealt with by the agreement. Their Lordships are not aware of the exact system by which documents are. recorded ill the courts In India, but a perfectly proper and effectual method of carrying out the terms of this section would be for the, decree to recite the whole of the agreement and then to conclude with an order relative to that part that was the subject of the suit, or it, could introduce the agreement in a schedule to the decree; but in either case, although the operative part of the decree would be properly confined to the actual subject-matter of the then existing litigation, the decree taken as a whole would in the agreement. This in fact is what the decree did in the present case. I may be that as a decree it was incapable of being executed outside the lands of the suit, but that does no prevent it being received in evidence of its contents.'
To the extent to which the judicial Committee held that a compromise decree taking in its fold even properties extraneous to the suit does not require registration, the amendment of 1929 introduced into the Act has superseded its effect. But Hemantakumari's case, 46 Ind App 240: AIR 1919 PC 79, is still authority for the position that the decree or order mentioned in clause (vi) not merely covers the operative part of the decree, but also the compromise, if any, between the parties which has been recorded by the court and which in some way was incorporated or made part of the decree.
(10) In Poorvanayi Ayissa v. Kundron Choken, ILR 43 Mad 688: AIR 1920 Mad 242, a Full Bench of this court held that a compromise made after decree affecting any immovable property of the value of over Rs. 100 and embodied, in a petition Presented under O. XXI, rule 2, C. P. C., which was recorded by the court is exempt from registration. At page 695 (of ILR Mad): (at pp. 244-245 of AIR), it was observed as follows referring to Hemantakumari's case, 46 Ind App 240. AIR 1919 PC 79,...
Their Lordships point out that tile word 'decree' in S. 17 of the Registration Act must be read in connexion with the purpose of statute, which is provide a method of public registration of documents, and there is therefore no reason why a limit should he imposed on the meaning of the word so as to confine it to the operative portion only of the decree.'
In Thimmanayanim Bahadurvaru v. Venkatappa Nayanim, : AIR1928Mad713 , Phillips Offg. C. observed thus at page 715,
'It is contended for the appellants that the compromise itself is inadmissible in evidence for want of registration under the provisions of the Registration Act. Under S. 7(2)(vi) of that Act a decree or order of court need not be registered. The part of the compromise allowing this charge is not embodied in the decree and the argument is that, as it is not so embodied, in order to be admissible in evidence it must he registered. This point, has, been considered on several occasions. In Hemantha Kumari Debi v. Midnapur Zamindari Co., 46 I. A. 240, it was, head that, when a compromise was recorded in a decree, not only those portions thereof which became operative under the decree, were exempt from registration but also the other Provisions which were not embodied in the decree........ The compromise of 1893 is, there-fore, admissible in evidence............'
In view of the decisions cited above it is clear that the razinama dared 21-12-1951, Ex. A-2, incorporated in the decree in O. S. No. 137 of 1950 does not require to he compulsorily registered under the Registration Act.
(11) Learned counsel for the appellant relied upon the decision of the Travancore-Cochin High Court in Subramania Iyer v. Chinnu Pillai, AIR 1952 TC 179. The headnote in the said decision is as follows.
'If the court proposes to dispose of the petition to sat aside the execution sale, not on the merits, but on the basis of the compromise entered into by the parties, the order should be in accordance with the terms of the compromise. The court will be aching without jurisdiction if it embodies in the order any provision rot agreed to by the parties.'
I am not able to see the relevancy of the citation. The compromise recorded in O. S. No. 137 of 1950 is undoubtedly valid and binding upon the parties. There is evidence to show that the appellant brought about the compromise and even attested the written razinama.
(12) It follows that the decision of the courts below is correct. The second appeal fails and is dismissed with costs. No leave.
(13) Appeal dismissed.