M.M. Ismail, J.
1. One Jayarama Mudaliar and his four brothers constituted a Hindu undivided family. The said Jayarama Mudaliar by a notice dated 25th August, 1952 brought about a severance of status, between him and his four brothers. On 24th September, 1952, he executed a deed of settlement with respect to his one-fifth share in the properties of the family. Under the terms of the deed, he granted the said one-fifth share in favour of the 1st defendant herein and defendants 2 to 7, subject to certain conditions. The 1st defendant was to take steps to have the one-fifth share divided by metes and bounds and to enjoy the same on condition of his paying a sum of Rs. 1,000 on 15th January, every year to the said Jayarama Mudaliar towards his maintenance and another sum of Rs. 1,000 on the same date towards the maintenance of his wife, the 1st respondent herein. Even after the death of Jayarama Mudaliar, the 1st defendant was to pay the sum of Rs. 1,000 to the 1st respondent herein so long as she is alive. The deed further provided that the 1st defendant was to take three-fourths of Jayarama Mudaliar's one-fifth share absolutely from the date of the document itself and to enjoy the same from generation to generation with all powers of alienation. With regard to the other one-fourth of Jayarama Mudaliar's one-fifth share in the family properties, that was also to be in possession of the 1st defendant and the 1st defendant was to enjoy its income but on the death of Jayarama Mudaliar and his wife, the said one-fourth share, it certain proportions, was to go to defendants 2 to 7 as allotted by the 1st defendant himself. The settlement deed contained the following condition also:
The further condition of this settlement deed is that it shall be liable to be revoked by the settlor during his life-time and by his wife Manikkammal if she survives the settlor in default of the payment of the annuity of Rs. 1000 each to the settlor and his wife Manikkammal as above mentioned.
Jayarama Mudaliar died on 15th April, 1955. The 1st defendant defaulted to pay the annuity stipulated in the settlement deed and a sum of Rs. 4,187 was due by him. Therefore, the 1st respondent herein, namely, the widow of Jayarama Mudaliar, in exercise of the power of revocation conferred by the settlement deed, revoked the settlement and called upon the 1st defendant by notices to deliver possession of the properties and to pay the arrears also. The 1st defendant paid Rs. 2,500 upto a particular stage, but even thereafter he defaulted in payment of the amount. It is under such circumstances the 1st respondent herein filed O.S.No. 41 of 1961 on the file of the Court of the Subordinate Judge of Chingleput for declaration of her title to one-fifth share in the suit properties as heir of her husband and in consequence of the revocation of the settlement deed executed by him in favour of defendants 1 to 7 and for a partition of the properties into five shares and possession of the plaintiff's-one-fifth share therein. To the suit, the impleaded as parties the settlees under the document as well as the representatives of the other brothers of Jayarama Mudaliar.. The 1st defendant put forward several contentions, such as, there was no valid power of revocation, since he was not aware that the document contained such a power and he did not consent to such a power of revocation and that in any event, the 1st respondent had no power of revocation and all she could do was to take steps for recovery of the arrears and that the revocation itself should have been effected by means of a registered document and that not having been done, there was no valid revocation. The learned Subordinate Judge, by his judgment and decree dated 5th March, 1962, overruled the objections of the 1st defendant and decreed the suit of the 1st respondent. Against this judgment and decree, defendant 1, 3, 5 to 9, 11 and 14 to 17 preferred A.S.No. 125 of 1962 on the file of the Court of the District Judge of Chingleput. The learned District Judge, by judgment and decree dated 28th. September, 1964 affirmed the conclusion of the learned Subordinate Judge and passed a preliminary decree for partitioning one-fifth share of the family properties and for separate possession of the same. It is against these judgments and decrees, defendants 1, 5, 7 to 9, 11 and 14 to 17 have preferred the present second appeal.
2. Mr. K. Parasaran, learned Counsel for the appellants, put forward three contentions : (1) The revocation has to be effected only by means of a registered instrument, in view of the provisions contained in Section 17 (1) (b) of the Registration Act and that not having been done, there is no valid revocation. (2) The Court has got power to relieve the penalty of forfeiture provided in the document and the Court in this case should exercise that power. (3) In any event, defendants 2 to 7 have acquired a vested remainder in respect of the one-fourth share of Jayarama Mudaliar's one-fifth share in the family properties and consequently any decree that may be passed in this suit in favour of the 1st respondent can only be subject to the vested remainder created in favour of defendants 2 to 7. I shall* deal with these points in that order.
3. As far as the first point regarding the necessity for a registered instrument for* revoking the settlement is concerned, the argument proceeds on a misapprehension. Section 17 (1) (b) of the Registration Act pre-supposes the existence of non-testamentary instrument which purports or operates to create, declare, assign, limit or extinguish any right, title or interest to or in immovable property and does not itself provide that a particular transaction should be carried out only by means' of a written instrument. Consequently, if there is a written instrument creating, declaring, assigning, limiting or extinguishing rights in immovable property, such-instrument must be registered. But it is not open to any party to contend that even if there is no other law requiring that particular transaction should be entered into only by means of a document in writing, still by virtue of Section 17 (1) (b) of the Registration Act, such a transaction can be effected only by means of a registered instrument. For instance, in the Transfer of Property Act, Section 54 dealing with the sale, Section 59 dealing with the creation of mortgage, Section 107 dealing with, the lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent, Section 118 dealing with exchanges, Section 123 dealing with making of a gift and Section 130, dealing with transfer of actionable claim, provide, that the transactions dealt with by the said sections must be carried out only by an instrument in writing. Mr. Parasaran has brought to my notice no-law which requires that the revocation of a settlement as contemplated by the settlement in question must be effected only by means of a written instrument, which because of Section 17(1)(b) of the Registration Act, will have to be registered. Consequently, in the absence of any other provision independent of Section 17 (1) (b) of the Registration Act, requiring that the revocation should be effected only by means of a written instrument, it is not possible for me to hold that the revocation in question must be effected only by a registered instrument, in view of the provisions contained in Section 17(1)(b) of the Registration Act. Mr. Parasaran, in this context, relied upon the decision of the Supreme Court in Kaihinath Bhaskar v. Bhaskar Vishweshwar : 1SCR491 . In that case, there was actually a written document coming within the scope of Section 17 (1) (b) and the Supreme Court pointed out that the document must be registered. It is not the case of the learned Counsel for the appellants In the present second appeal, that there has been a written document executed by the 1st respondent coming within the scope of Section 17 (1) (b) of the Registration Act and that pursuant to that section it must be registered. Therefore I am unable to accept the contention of the learned Counsel for the appellants that in this case the revocation effected by the 1st respondent is not valid because it has not been effected by means of a registered instrument.
4. As far as the second question is concerned, the question of relieving against any forfeiture or penalty will arise only, if there is actually a penalty. As already pointed out the settlement in favour of the 1st defendant and others was effected by Jayarama Mudaliar only subject to certain conditions, one of the conditions being the liability of the settlement to be revoked in case of default on the part of the 1st defendant to pay the annuity. Therefore, it cannot be contended that the provision for revocation is in the nature of forfeiture which a Court of equity can relieve against in a particular case. Over and above this, it must be remembered that the transaction in question was a simple settlement and the properties were admittedly valuable ones. Having obtained those properties, if the 1st defendant does not pay the annuity provided for by the very terms of the grant and commits default, the settlor or his wife can exercise the power of revocation conferred by the document itself. It cannot be contended that there is a penalty and that penalty should be relieved by the Court in the exercise of its jurisdiction as a Court of equity. Consequently, in my opinion, this contention also is a result of misapprehension.
5. As far as the third point is concerned, such a point was not put forward before the Courts below. Mr. Parasaran argues that being a point arising from the terms of the document itself, it is open to him to urge it before this Court in the second appeal. His case is that defendants 2 to 7 in the suit have acquired a vested remainder in respect of one-fourth share of Jayarama Mudaliar's one-fifth share in the family properties and that vested remainder will blossom into an effective and present interest oh the death of the 1st respondent herein, and consequently any right which the 1st respondent may get declared in the present suit should not affect the right of defendants 2 to 7 to that vested remainder. On the other hand Mr. Srinivasa Iyer, learned Counsel for the respondent, contends that there is no such vested remainder created in favour of defendants 2 to 7. In view of one admitted circumstance in this case I consider that it is unnecessary to decide that point in this appeal and that admitted circumstance is that defendant 2 to 7 are not entitled to possession of the properties so long as the 1st respondent is alive and the right to possession, if any, will accrue only on the death of the 1st respondent. Therefore, I am of the opinion that it will be in the interests of both the parties to leave this question open so that if the parties are so advised they can agitate the same in separate proceedings when the alleged right of defendants 2 to 7 materialises on the death of the 1st respondent. Consequently the question whether defendants 2 to 7 have acquired any vested right in respect of the one-fourth share of Jayaram Mudaliar's one-fifth share in the family properties which cannot be revoked is left open since that will not affect the right of the 1st respondent to obtain present possession of Jayarama Mudaliar's one-fifth share in the family properties.
6. Under these circumstances, subject to the reservation made by me in respect of the third of the points enumerated already, the second appeal fails and is dismissed. There will be no order as to costs.
7. No leave.