Ankamreddi Konda vs Ankam Reddi Pedademudu (died) and Others

Bhimasankaram, J.

1.This Second Appeal has been directed to be posted before a Bench by our learned brother Umamaheswaram, J., because he considered that it raised a question of importance involving the interpretation of Clause (vi) of Sub-section (2) of Section 17of the Indian Registration Act.

The facts of the case are these: The Plaintiff and the 1st Defendant are brOrs. who

Became divided some time before suit. One Pydithalli, the son of their paternal uncle, died issue less in the year 1942 and his properties were inherited by Kannamma, his widow, who alienated the suit lands as well as some other properties in favour of one Sanni. Thereupon the Plaintiff and the 1st Defendant in their capacity as the nearest reversioners to the estate of Pydithalli filed Org. f. No. 168 of 1945 on the file of the District Munsif''s Court, Chodavaram, against the widow and her alienee, who were impleaded as the and the 1st Defendants respectively, for a declaration that the alienation would not bind the estare of late Pydithalli. The suit resulted in a compromise between the alienee and the brOrs. . The compromise decree passed therein which is dated 3rd October, 1945, contains these terms:

That the sale deed dated 7th April, 1945 executed by the second Defendant in favour of the first Defendant do stand cancelled;

that the second Defendant do take only items 9 and 11 of the plaint schedule without any power of alienation during her life-time and the Plaintiffs do enjoy them afterwards absolutely:

that the Plaintiffs do take possession of other items of the plaint schedule at the end of the Telugu Year and enjoy them absolutely;

that the first Defendant and Plaintiffs do pay 5 putties of paddy for this year to the second " Defendant and the rest of the crops in the suit lands be shared in equal shares between the Plaintiffs and the first Defendant; and

that each party do bear its own costs of this suit.

Note.-The other terms of the compromise are recorded. Compromise petition is attached to this decree as schedule there to Plaint schedule attached to decree.

It may be noted that the preamble to this decree states.

the Plaintiffs having proved their claim against the ex parte second Defendant and having agreed to tak a decree in terms of the compromise against the second Defendant also, the Court doth in pursuance of the said deed of compromise order and decree.

Despite this compromise, the brOrs. had to file a second suit O.S. No. 78 of ]{)46 against Kannamma and Sanni for mesne profits. It was decreed against both of them by the trial Court; but on appeal, the widow was exonerated from liability on the ground that she had no possession of the properties in respect of which the manse profits were claimed. While that appeal was pending, the present 1st Defendant obtained a sale deed for the lands from Kannamma to which both he and Plaintiff were entitled under the earlier compromise decree. The present second Defendant is an aliened from the 1st Defendant. The Plaintiff now seeks to recover his half aha re of the suit lands from the Defendants on the foot of the compromise decree.

Several defences were raised of which only OKO now survives, viz.. that the compromise decree is inadmissible in evidence u/s 49 of the Indian Registration Act for the purpose of effecting title to the suit property, because it required to be registered and was not. The contention is that the suit which resulted in the compromise was filed only for a declaration by presumptive reversioners that the property covered by the sale deed executed by Kannamma in favour of Sanni did not bind the reversion. ''Ibc compromise whereby the properties in respect of which the declaration was sought were divided among the Plaintiffs, the alienee and the widow, required registration because it could not be said that the Immovable property which was divided was "the subject-matter of the suit" within the meaning of Clause (vi) of Sub-section (2) of Section 17 of the Act. It is necessary to quote the relevant language of Section 17 In order to appreciate the contention:

(1) The following documents shall be registered....

(a) * * * *

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in Immovable property;

* * * to *

(2) Nothing in Clauses (b) and (c) of Sub-section (1) applies to -

(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and compromising Immovable property other than that which is the subject-matter of the suit or proceedings.

The point for consideration is whether ire decree in question can be held to be a decree "expressed to be made on a compromise and compromising Immovable property other than that which is the subject-matter of the suit? To put It in other words, was the, property agreed to be divided between the Plaintiffs and the Defendants as per the above terms, the subject-matter of the suit, though in respect of it only a declaratory relief was asked?

Our attention has been drawn to a number of decisions explaining the meaning of the phrase "the subject-matter of the suit".

Now, Order 23, CPC Code, which provides for withdrawal and adjustment of suit contains the phrase "the subject-matter" of the suit and it may be useful to extract Rule 3 of this order:-

Rule 23.-(3) Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the Defendant satisfied the Plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.

In the present case if the Immovable property in question can be said to be the subject-matter of the suit, it is clear that all the above terms related to the suit and the decree is in accordance therewith.

Our attention has been drawn to a Full Bench decision reported in Singa Reddi v. Subba Reddi, ILR 39 Mad 987: (AIR 1917 Mad 512(2)) (A), in which it was held that where the cause of action and the relief claimed in a second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit. The learned Judges, however, disclaimed an attempt to give an exhaustive definition of all that may bo included in the term "subject-matter."

Reference may, however, be usefully made to the decision of a single Judge of the Madras High Court reported in Ramayya v. Rangaraju, AIR 1037 Mad 504 (B). The question decided in that case arose on the following facts: The Petitioner in that case filed a suit against a father and his sons to recover a sum of money due under a promissory note executed by the father alone, it being alleged that as the debt for which the pronote was executed was for a necessary purpose, the sons also were liable thereunder. The plaint sought a decree against the father personally and against the joint family properties in the hands of the sons. The suit was compromised and a decree was passed in terms of the compromise whereby the Defendants were directed to pay the amount of the note in two installments, it being secured by a charge created on two items of Immovable property specified In the schedule to the decree The property so secured was subsequently brought to sale and the sale proceeds were deposited in Court. There were claims made for rateable distribution of that sum by holders of other decrees. The Petitioner''s contention was that there could be no rateable distribution because he had a charge under his decree. The trial Court had negatived the contention on the ground that as the decree was not registered, it could not be put in evidence to establish the charge.

Venkatarama Rao, J., discussed the matter in the following passage:

The question therefore is whether the two items of Immovable property which have been charged by the compromise decree......can be said to be the subject-matter of the said suit. The expression ''subject-matter of the suit is not defined in the Registration Act. It seems to me that what the clause contemplates is that specific Immovable property must be subject-matter of litigation. There must be a claim or right in or to the specific Immovable property asserted in the litigation and relief sought in respect, thereof in order to make the said property the subject-matter of the suit.

We express our respectful concurrence with the line of reasoning adopted in this passage, It is to be noted that the learned Judge used language which is substantially (.he same as that employed in Section 52 of the Transfer of Property Act. The section refers to "any suit or proceeding in which any right to Immovable property is directly and specifically in question'''' and .subjects it to the doctrine of lis pendens. There be little doubt that property to which the doctrine applies 13 property which is "the subject-matter of the suit". One test therefore in order to ascertain whether any Immovable property is the subject-matter of a suit is whether a transfer of the property involved in it would be hit at by this provision.

In the present case, the suit is for a declaration that the sale deed executed by the widow in respect of the property is not binding upon the reversioners. We shall have therefore to consider whether Section 52 of the Transfer of Property Act would apply to such a case. No case directly in point has been brought to our notice. But. we may refer to two cases, one of the Calcutta High Court and the other of the Lahore High Court. In Bhola Nath Seal Vs. Bhuthnath Sen and Another, , the learned Judges held that Section 52 of the Transfer of Property Act applied to a property covered by a deed of trust which was sought to be set aside in that suit. In Thakur Das v. Jai Kisan Das, AIR 1938 Lab. 443 (D) a single Judge of the Lahore High Court applied the doctrine to a suit which involved declaration of title to Immovable property. We think that in a case like the present one also it could very well be said that a right to the Immovable property the alienation of which is sought to be set aside is involved directly and specifically in the suit.

Hence, we hold that the compromise decree Exhibit D-3 could be received in evidence and that it could be enforced against the Defendants.

We therefore allow the Second Appeal, set aside the judgment of the learned Judge and restore that of the learned District Munsif with costs here and in the Court below. There shall be an enquiry into future mesne profits under Order 20 Rule 12, Code of Civil Procedure.