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Sankaravelu Pillai Minor by His Adoptive Mother and Next Friend, Karuppayee Ammal Vs. Muthusami Pillai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported inAIR1916Mad536; 31Ind.Cas.260
AppellantSankaravelu Pillai Minor by His Adoptive Mother and Next Friend, Karuppayee Ammal
RespondentMuthusami Pillai
Cases Referred and Ravula Parti Chelamanna v. Ravula Parti Rama Row
Excerpt:
registration act (xvi of 1908), section 17 - compromise incorporated in decree of con t, whether requires registration--transfer of property by a hindu in favour of a hindu widow, effect of--transfer of property act (iv of 1882), section 8. - .....at which it arrived, that exhibit ii can be adduced in ewdenoo and can be read as part of the decree, exhibit v, so as to affect the immoveable property compromised therein notwithstanding, that it has not been registered.9. i come to the second point which was argued before my namely, that on the true construction of exhibit ii the 1st (sic) defendant therein referred to, acquired only a limited or a widow's estate in the property mentioned. we had recently, to consider in second appeal no. 2859 of 1913 the effect of the decisions of the privy council and of the courts of india which lay down that the ordinary intention of a hindu in making a transfer of property to a hindu woman ought to be taken into consideration when the deed of transfer is to be construed, and that the.....
Judgment:

Tyabji, J.

1. Two main questions arise for decision in this appeal, in which the rights of the parties under Exhibit II have to be determined.

2. The first question is whether Exhibit II required registration, or whether it can be adduced in evidence and can affect immoveable property notwithstanding that it has not been registered. This question depends primarily upon the effect of Sections 17 and 49 of the Indian Registration Act. Section 17 provides in the first instance that the documents mentioned thereinafter shall be registered if the property to which they relate is situate in certain districts. Then certain classes of documents are mentioned which are all such as operate to create, declare, assign, limit or extinguish any right, title or interest in immoveabte property; and include gifts and leases. Then the second sub-section of Section 17 excepts twelve kinds of documents which need not be registered, though it might otherwise have been considered that Clauses (6) and (e) of Sub-section (1) covered them, in other words, that they were documents of the classes mentioned above. Amongst the excepted class of documents is mentioned, any decree or order of a Court or any award.'

3. Section 49 provides inter alia that no document required by Section 17 to be registered shall affect any immoveable property comprised therein unless it has been registered.

4. The first argument of the appellant is that Exhibit II is a non-testamentary instrument purporting to create an interest in real property and ought, therefore, to be registered under Section 17, unless it is a decree or order of the Court, and that it is not a decree or order.

5. On this question there are two short dicta of the Privy Council to which it is necessary to refer. The first of them occurs in Bindesri Naik v. Ganga Saran Sahu 25 I.A. 9 : 7 Sar. P.C.J. 273. Their Lordships there state that they are satisfied that the provisions of Section 17 of the Act do not apply to proper judicial proceedings, whether consisting of pleadings filed by the parties, or of orders made by 'the Court.' Then in Pranal Anni v. Lakshmi Anni 22 M.k 508: 3 C.W.N. 485 : 9 M.L.J. 147 they state the razinamah was not registered in accordance with the Act of 1877; but the objection founded upon its non-registration does not, in their Lordships' opinion, apply to its stipulations and provisions in so far as these were incorporated with, and given effect to by, the order made upon it by the Subordinate Judge in the suit of 1885. The razinamah, in so far as it was submitted to and was acted upon judicially by the learned Judge, was in itself a step of judicial procedure not requiring registration; and any order pronounced in terms of it constituted res judicata, binding upon both the parties to this appeal who gave their consent to it.'

6. It seems to me that when these two passages in their Lordships' judgments are read together,--and it is significant that Lord Watson delivered the opinion of the Privy Council in each case--the principle upon which their Lordships proceeded appears to be that, inasmuch as under the law as regards registration read together with the law relating to res judicata, orders and decrees of the Court do not require to be registered, all such other judicial proceedings also as are necessary to be referred to in order to determine what it is that has become res judicata--all such other judicial proceedings also are excepted from, the provisions of the Indian Registration Act: unless this were the case, the law relating to res judicata would be subject to the proceedings of the Court being registered, which, it is clear, could not have been the intention of the Legislature.

7. There are two decisions of this Court bearing upon the point under consideration, apparently conflicting with each other, Natesan Chetty v. Vengu Nachiar 3 Ind. Cas. 701 and Ravula Parti Chelamanna v. Ravula Parti Rama Row 12 Ind. Cas. 317 : (1911) 2 M.W.N. 265. It seems to me that it is unnecessary for us in the present case to determine the question on which the conflict of opinion arises. For taking the view of the Privy Council to be as I understand it, in the present case, it seems to me that the composition between the parties must be taken to have been incorporated in the decree of the Court, Exhibit V, which refers in terms to the compromise, Exhibit II, and purports to sanction it on behalf of the minor. It is true that the ultimate, operative part bf the decree purports to be merely that the suit shall be dismissed, yet read as a whole, it seems to me to be clear that the decree incorporates the terms of the compromise.

8. I feel, therefore, no hesitation in arriving at the conclusion that the lower Appellate Court was right in the conclusion at which it arrived, that Exhibit II can be adduced in ewdenoo and can be read as part of the decree, Exhibit V, so as to affect the immoveable property compromised therein notwithstanding, that it has not been registered.

9. I come to the second point which was argued before my namely, that on the true construction of Exhibit II the 1st (sic) defendant therein referred to, acquired only a limited or a widow's estate in the property mentioned. We had recently, to consider in Second Appeal No. 2859 of 1913 the effect of the decisions of the Privy Council and of the Courts of India which lay down that the ordinary intention of a Hindu in making a transfer of property to a Hindu woman ought to be taken into consideration when the deed of transfer is to be construed, and that the presumption, in the absence of something clear to show the contrary, is that only a limited estate is granted; the presumption may be rebutted by words showing that unrestricted power to alienate was given or that the estate was to be heritable by the heirs of the woman, and not to revert to the heirs of the grantor of the interest. I pointed out in that appeal that this rule must be taken to be an exception to the general law laid down in Section 8 of the Transfer of Property Act and Section 82 of the Indian Succession Act, and though I was myself inclined in that case to take the view that the full rights were given to the donee under the instrument, 1 felt pressed by the fact that both the lower Courts had decided to the contrary effect and that my learned brother agreed with, the view taken by them. In the result I thought that it was not a case in which it was incumbent upon me to give effect to my own inclinations. I, therefore, agreed to the dismissal of that appeal.

10. In the present case, the circumstances seem to be materially different. We have the fact, first of all, that Exhibit II was a compromise in the course of a litigation brought about, as is clear from the facts mentioned to us, by the widow for the express purpose of asserting an absolute right to the property which was the subject-matter of Original Suit No. 429 of 1904; secondly, the plaintiff, it is stated in Exhibit II, has no right, interest or claim whatever in the property allotted to the widow; on the other hand, there is no doubt a reference to the fact that the absolute rights given under Exhibit II to the widow are 'towards her food and clothing charges.' Thirdly, the property that is given to the widow is only a fourth of what she claimed, and it is a part of the appellant's case that this one-fourth would be far in excess of what she would have been entitled to get if it were intended merely to take the place of her maintenance. On these facts, it seems to me that it is Section 8 of the Transfer of Property Act rather than the presumption of what a Hindu would ordinarily do when be purports to transfer, of his own free will property to a Hindu woman that should govern the construction of this document. It seems to me that there is nothing to show that the dominant factor was the desire or the intention of the transferor to give only such an interest in the property as lie would of his own free will like to give. The parties were at arm's length. A claim was put forward to the absolute title to the whole of the property and that claim was compromised by giving to the claimant one-fourth of the property. It seems to me, therefore, that there is no room for the presumption being drawn that that one-fourth of the property must have been given on the terms on which it would have been given had it been a free gift. It, seems to me that as a consequence, Exhibit II must be given effect to as an absolute transfer of the property, in accordance with the decision under appeal.

11. I would, therefore, dismiss the appeal with costs.

Ayling, J.

12. I entirely concur with my learned brother in holding that the razinamah, Exhibit II, does not require registration to render it admissible in evidence or operative as a transfer of the suit property to Minakshi.

13. As regards its correct interpretation, I am not free from doubt; but as my learned brother is clearly of opinion that the construction adopted by the lower Appellate Court is correct, I am not prepared to differ from him on this point.

14. The second appeal is dismissed with costs.


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