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Jachmi Mondal and anr. Vs. Cheninissa Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in54Ind.Cas.538
AppellantJachmi Mondal and anr.
RespondentCheninissa Bibi and ors.
Cases ReferredGobinda Chandra Paul v. Dwarka Nath Paul
Excerpt:
registration act (xvi of 1908), section 17(2)(vi) - compromise amounting to conveyance, whether requires registration--civil procedure code (act v of 1908), order xxiii, rule 1. - .....document to which reference is made required registration.2. taking the statement of facts in the learned judge's judgment, it appears that the plaintiffs and the defendants are respectively the representatives of telam and kinn, who admittedly were previously the sole proprietors of the suit jama. the plaintiffs' case was that in 1838 telam sued kinn for contribution, he having defaulted in payment of rent. i understand from what the learned vakil has said that telam had paid rent to the landlord and kinn had failed to pay his half share consequently telam sued kinn for contribution. a compromise in this suit was effected and was incorporated in a decree under which kinn gave up his rights in the land and telam gave up his claim for rent. the learned vakil has translated the material.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an appeal by the defendants from the appellate judgmeat of the Additional District Judge, and the matter depended upon the question whether the document to which reference is made required registration.

2. Taking the statement of facts in the learned Judge's judgment, it appears that the plaintiffs and the defendants are respectively the representatives of Telam and Kinn, who admittedly were previously the sole proprietors of the suit Jama. The plaintiffs' case was that in 1838 Telam sued Kinn for contribution, he having defaulted in payment of rent. I understand from what the learned Vakil has said that Telam had paid rent to the landlord and Kinn had failed to pay his half share Consequently Telam sued Kinn for contribution. A compromise in this suit was effected and was incorporated in a decree under which Kinn gave up his rights in the land and Telam gave up his claim for rent. The learned Vakil has translated the material parts of the decree for us-and, it appears that the amount of rent which was claimed was Rs. 44 odd, as being the contribution which the defendant was liable to make to the plaintiff and it was alleged to be due in respect of certain properties which were mentioned in the decree : and it was then stated that the defendant gave up his right to the half share in the properties mentioned in the decree and that the plaintiff gave up his claim for the money and he, the plaintiff agreed to pay rent to the landlord after he had taken possession. On the face of that decree, it would appear that the consideration for the defendant giving up his title to his half share was the Its. 44 which the plaintiff was claiming in that suit. But the learned Judge in his judgment said: 'Telam by this solenamah in effect paid Kinn some Rs. 100 as consideration.' The learned Vakil who appeared for the appellant has submitted that this Court must take that as a finding of fact.

3. Now the learned Munsif said in his judgment: 'In the present case the plaintiff got his claim for money dismissed on condition that he would get the lands in lieu of it.' There again, it looks as if the consideration for the giving up of the title was Rs. 44. If the consideration was only Rs. 44 then there would have been no necessity for registration, because the amount would be less than Rs. 100 which is the amount specified in Section 17(b) of the Registration Act of 1908. But on the assumption that we must take the learned Judge's statement to be a finding of fact that the consideration was Rs. 100, the further question arises whether the document would require registration. I think the test which should be applied to this case may be stated in the words of Mr. Justice Mitter in Gobinda Chandra Paul v. Dwarka Nath Paul 7 C.L.J. 492 : 35 C. 837 : 12 C.W.N. 849 as follows: 'The question whether any particular term of a petition of compromise incorporated in a decree made under the power given by Section 375 of the Code of Civil Procedure' (which corresponds to Rule 3, Order XXIII, of the present Code), 'relates to the suit or is covered by its subject-matter must be decided from the frame of the suit, the relief claimed, and the relief allowed by the decree on adjustment by lawful agreement. The mutual connection of the different parts of the relief granted by a consent decree is an important element for consideration in each case in deciding whether any portion of the relief is within the scope of the suit. No hard and fast rule can be laid down, each case being governed by its own facts.' As far as I can judge from the translation which the learned Vakil was good enough to give us of the decree, I am of opinion that it cannot be said that in the compromise which is under consideration, there were any matters which did not relate to the suit or which were not covered by its subject matter. As I have already said, the claim was for a share of rent in respect of certain lands which were held by the then plaintiff and the then defendant in an equal interest and the plaintiff on the one hand agreed to give up his claim for the rent and the defendant agreed to give up his title to his share in the lands in respect of which the rent was claimed. Consequently, in my judgment, the terms of the compromise did relate to the suit, or at all events were covered by the subject-matter thereof. It is conceded by the learned Vakil that if that be so and inasmuch as the compromise was embodied in the decree, the document would not require registration even though the transaction did amount to a conveyance and the consideration for it was Rs. 100. That point, therefore, fails.

4. The learned Vakil's further point is that the plaintiffs should not get a decree for Khas possession, on the ground that the defendants are in possession by reason of a kabuliyat as tenants of the plaintiffs. It appears that in their written statement the defendants denied that the kabuliyat related to any of the lands in suit, and, the learned Judge has said, 'it appears to be the case of neither party that the plots in suit are covered by the kabuliyat. The plaint and the written statement do not allege any such identity.' In my judgment, that being so, the defendants cannot now turn round and say that they are in possession as tenants under the kabuliyat. For these reasons I think that the decree must be upheld and this appeal dismissed with costs.

Duval, J.

5. I agree.


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