Posted On by &filed under High Court, Madras High Court.

Madras High Court
Natesan Chetti Alias Chidambaram … vs Vengu Nachiar, Sella Nachiar And … on 3 September, 1909
Equivalent citations: (1910) 20 MLJ 20


1. In these suits the plaintiffs seek to recover rent alleged to be due to them, respectively, under a compromise entered into between themselves, on the one hand, and their sister and the defendants’ father, on the other, in O.S. No. 18 of 1901, on the file of the Subordinate Court of Madura, East. The plaintiffs in these suits and their sister are the daughters of the late Rajah of Sivaganga. The Rajah granted a permanent lease of six villages to his wife, and his wife in turn leased 5 of the 6 villages to the European lessees to whom the Rajah had leased the bulk of the Zemindari and who are commonly known as the Sivaganga lessees. As stated in the plaint filed by the defendants’ father in O.S. No. 18, the Sivaganga lessees paid her the rent for six faslies or Rs. 60,000 in advance in 1891. The plaintiffs’ mother died in 1892, and in 1900 her youngest daughter, the present plaintiffs’ sister, claimed to succeed to the six villages as heiress to her mother and to the exclusion of her sisters, the present plaintiffs, on the ground that she was the sole unmarried daughter at the time of her mother’s death. For the assertion of this claim she sought the assistance of the defendants’ father, a leading Nattukoltai Chetti in the Madura District, and in October 1900 he advanced her Rs. 30,000 on a mortgage of her interest in the villages, Exhibit A, and took a lease of them from her, Exhibit 3, and in February 1901, joined with her as 2nd plaintiff in O.S. 18 of 1901, against her sisters, the present plaintiffs, for the purpose of asserting her rights and his rights as lessee under her in the suit villages. The present plaintiffs in their written statement, Exhibit N, set up that their mother took nothing under the permanent lease which they alleged was executed by the late Rajah benami for his own benefit, but they alleged a subsequent family settlement by which they and their sister were entitled on his death to succeed each to one fourth share in the villages. While the suit was pending, the minor Rajah, through the Court of Wards, applied to be made a party for the purpose of asserting his claim to the six villages, but his application was rejected on the 5th August 1901, Exhibit O. Subsequently, on the 10th March 1902, the suit was compromised on the terms, speaking broadly, that the 1st plaintiff was to give up her exclusive claim to the six villages and that the three defendants, the present plaintiffs, were to accept the lease, Exhibit B, executed by her in favour of the 2nd plaintiff, the present defendants’ father, and each be entitled to one-fourth of the rent payable thereunder. One of the terms of the compromise was that the four sisters were to send yadasts or notices to the Sivaganga lessees to pay the rent due under the lease of the 5 villages to the 2nd plaintiff, and this admittedly was done. The Sivaganga lessees, however, failed to pay any rent to the 2nd plaintiff apparently in consequence of a notice, Exhibit I, dated the 23rd June 1902, from the Court of Wards demanding the rent on behalf of the minor Zemindar and threatening a suit if it was not paid. No such suit was instituted, but the Sivaganga les sees refused to pay their rent of the 5 villages to the defendants’ father and the defendants after him without an indemnity, and they in their turn refused to pay the plaintiffs their share of the rent due to them, and after an unsuccessful attempt to recover their rent in execution of the decree in O.S. No. 18, Exhibit H 1, the present suits were instituted by these plaintiffs for the purpose of recovering their respective shares of the rent.

2. The defendants contended that the plaintiffs were not entitled to sue because the compromise had not been registered, and also because of their failure to give possession of the rent payable by the Sivaganga lessees in respect of the 5 villages, and also that by a subsequent agreement no rent was payable to the plaintiffs until the defendants had recovered the rent payable by the Sivaganga lessees. The Subordinate Judge overruled all these contentions and gave the plaintiffs decrees. These contentions were again raised before us in appeal. Before coming to the objection for want of registration, it will be convenient to deal with certain contentions which were raised as to the scope and effect of the decree, Exhibit D. In the first place, it was said that the compromise did not relate to the suit within the meaning of Section 375, Civil Procedure Code, in so far as it constituted the 2nd plaintiff in the suit a lessee under the ist plaintiff and the defendants in the suit (the present plaintiffs and their sister), and entitled the defendants in the suit to recover rent from the 2nd plaintiff, as no such reliefs were sought in the plaint, and that, therefore, this part of the compromise could not be covered by the decree. It is quite true that no such reliefs were sought and that this test was laid down as applicable to compromises in Venkatappa Nayanim v. Thimma Nayanim (1894) I.L.R. 18 M. 410 at p. 414 and applied in Muthu Vijaya Raghunatha Udayana Tevar v. Thandavaraya Tambiran (1998) I.L.R. 22 M. 214 but in a later case, Joti Kuruvetappa v. Izari Sirusappa (1907) I.L.R. 30 M. 478 at p. 480 it was held that “relates to the suit” in Section 375 means ” relates to the matter of the claim in the case” and that there is nothing in the section to restrict the relief granted in the compromise to what is prayed in the plaint or less. We entirely agree with this view which is also in accordance with the decisions of the Calcutta High Court in Puma Chandra Sarkar v. Nil Madhub Nandi (1901) 5 C.W.N. 485 Ramdhari Kuar v. Kekan Lal Choudhry (1908) 13 C.W.N. 217 and Gurdeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rashbehary Singh (1907) I.L.R. 36 C. 193 at p. 222. In Original Suit No. 18 the 1st and the 2nd plaintiffs were litigating as lessor and lessee for the ownership and enjoyment of the six villages, and the compromise provided how the six villages were to be owned and enjoyed by the parties to the suit. Such a compromise, in our opinion, clearly relates to the suit, and might properly be covered by the decree.

3. It is next objected that this part of the compromise was not in fact embodied in the compromise decree, Exhibit D. The duty of the Subordinate Judge, under Section 375, was to pass a decree in accordance with the compromise in so far as it related to the suit, and to refuse to pass a decree in respect of such portions as did not relate to it. What the Subordinate Judge actually did was to pass an order on the petition, Exhibit D 1, ” Decree in terms of the razinamah in so far as it is consistent with the plaint,” and the decree, Exhibit D, sets out that the Court “resolves to make a decree in accordance with its (the razinamah’s) terms and so far as is consistent with the plaint and hereby directs that the plaintiffs and defendants do abide by the same. The terms of the razinama are ” (setting them out). (The purport of the Razinama has been given above.–Ed.)

4. Now, it is not clear what the Subordinate Judge meant by ‘ consistent with the plaint.’ Strictly speaking, it may be contended that the whole compromise is inconsistent with the plaint as it rejects the exclusive title of the 1st plaintiff to the six villages on the basis of which the 1st and 2nd plaintiffs sued. Obviously, however, the Subordinate Judge did not take this view or he would not have passed the decree at all. Although he has expressed himself badly, we do not think the Subordinate Judge intended to do more than to comply with the provisions of Section 375 by passing a decree in accordance with the compromise in so far as it related to the suit, and that this must be taken to be the effect of his decree. On any other view, it would be necessary to consider how far the present defendants and their father, who got possession of one of the suit villages on the strength of this compromise, are now to raise an objection of this kind.

5. It is then said to be res judicata that this portion of the compromise is not included in the decree by reason of the order of the succeeding Subordinate Judge on the execution petition, Exhibit H. Now it is clear that this Subordinate Judge treated the decree, Exhibit D, as decreeing the compromise in so far as it related to the suit, and in this, we think, he was right. He also held that the decree, Exhibit D, did not award the remedy sought in the execution petition. Here again, we think he was right, for the decree, Exhibit D, can only be read as declaratory of the plaintiffs’ right to rent, and not as directing payment of it by the decree as often as it fell due. The Subordinate Judge, however, went further and held that this part of the compromise did not relate to the suit and, therefore, no decree could be considered to have been passed with regard to it. We think he was wrong in holding that this part of the compromise did not relate to the suit for the reasons already given in an earlier part of the judgment, and that this was a mistake of law which, according to the decisions of this Court collected in Mangalathammal v. Narayansawami Aiyar (1907) I.L.R. 30 M. 461 at p. 463 does not give rise to res judicata in a subsequent proceeding in which the operation of his order is not called in question.

6. The contention that this part of the compromise was not embodied in the decree appears to be material only in so far as it bears on the objections for want of registration. It is said that the effect of this part of the compromise is to create a new lease from the plaintiffs and their sister in favour of the defendants’ father, and that such lease is bad for want of registration under Section 17 of the Indian Registration Act. What the compromise does is to provide that the registered lease, Exhibit B, shall be accepted by the present plaintiffs and that they shall be en titled each to 1/4th of the rent under it. Now we are not clear that we are bound to construe the compromise as creating a new lease so as to give an opportunity for the objection, but even if we are, we think the objection fails. In Bindesri Naik v. Ganga Saran Sahu (1897) I.L.R. 20 A. 171 in the Privy Council, Lord Watson, delivering their Lordships’ judgment, laid it down that the provisions of the Registration Act ” do not apply to proper judicial proceedings, whether consisting of pleadings filed by the parties or orders made by the Court.” Applying this test it would appear to be immaterial whether this part of the compromise was embodied in the decree or not, as the compromise petition, Exhibit D1, was a pleading properly filed by the parties, and that it may be sued on without registration. In a later case, Pranal Anni v. Lakshmi Anni, (1899) I.L.R. 22 M. 508 in which the same learned Lord again delivered their Lordships’ judgment, the parties entered into a razinamah about the suit lands which was submitted to the Court and a decree passed in terms thereof. They at the same time entered into an agreement of union about certain lands excluded from the suit which was not submitted to the Court. Appended to the razinamah, however, was a note mentioning the agreement of union and a release which had been taken with regard to it. Their Lordships held that the terms of the agreement of union were related in the razinamah ‘ by way of remark ‘ and that the Subordinate Judge was not asked to consider or give effect to them and that they were not like the razinamah in so far as it was submitted to and acted upon judicially by the Judge, a step of judicial procedure not requiring registration. “If,” their Lordships went on to observe, ” the parties had settled the suit upon the terms that they were to take half shares not only of the suit lands but also of the lands excluded from the suit, had informed the learned Judge that those were the terms of the compromise, and had invited him by reason of such compromise to dispose of the conclusions of the suit, their Lordships see no reason to doubt that the order of the learned Judge, if it had referred to or narrated those terms of the compromise, would have been judicial evidence available to the appellant that the respondents had agreed to transfer to her the moiety of the land now in dispute.” In our opinion this passage clearly means that the compromise could have been enforced, although not registered, even about the lands not included in the suit. The learned Judges who decided Raghubans Mani Singh v. Mahabir Singh (1905) I.L.R. 28 A. 78 understood their Lordships’ judgment in the same way. In Birbhadra Rath v. Kalpataru Panda (1905) 1 C.L.J. 388 and Gurdeo Singh v. Chandrika Singh (1907) I.L.R. 36 C. 193 at p. 222 it was held that these decisions of their Lordships did not justify the view that petitions of compromise did not require registration in so far as they dealt with matters which were not the subject of the suit, but in the last mentioned case it is expressly laid down that ” a petition of compromise in so far as it relates to properties in suit does not require registration under Section 17.” The petition of compromise, Exhibit-D1, undoubtedly relates to the properties in the suit and so, in either view, it does not require registration.

7. Mr. Sundara Iyer, however, argues that in Bindesri Naik v. Ganga Saran Sahu (1897) I.L.R. 20 A. 171 and Pranal Anni v. Lakshmi Anni (1899) I.L.R. 22 M. 508 their Lordships were not dealing with leases which are governed by Clause (d) of Sub-section 1 of Section 17 but with instruments covered by Clauses (b) and (c) as to which Sub-section 2 creates various exemptions, amongst others ” (1)-any decree or order of a Court or any award.” We are not prepared to put any such restricted construction on the observations of their Lordships which mention pleadings as well as orders and decrees and appear to us to proceed rather upon the view that in the absence of clear and unambiguous words the Legislature cannot be supposed to have intended to make the proceedings of Courts dependent for their efficacy and validity on registration by one of the parties. Taking decrees and orders generally to be outside the scope of Sub-section 1 of Section 3 of the Registration Act, we cannot infer cha’t decrees and orders relating to leases are brought within it simply because certain other decrees and orders, viz., those relating to Clauses (b) and (c) of Sub-S 1 of Section 17, are expressly excepted by Sub-section 2 of. that section. Sub-section 2 is in the nature of a proviso and in West Derby Union v. Metropolitan Life Assurance Co. (1897) A.C. 647 Lords Watson and Herschell observe that provisoes are often inserted unnecessarily excepting cases which would not otherwise fall within the enactment for the purpose of removing apprehensions, and that cases which are otherwise clearly outside the scope of an enactment cannot be brought within it by any inference founded on the terms of the proviso. Having regard to their Lordships’ decisions we are of opinion that decrees and orders are clearly outside the scope of Section 17 whether they related leases or not.

8. We think that the objection for want of registration under Section 107 of the Transfer of Property Act fails similarly as that section does not apply to decrees and orders.

9. The next contention is that the defendants are not bound to pay because the plaintiffs and their sister have never put them in possession of the rents payable by the Sivaganga lessees in respect of the 5 villages which they are entitled to. Under the compromise the defendants, as lessees, are entitled to possession and profits on the one hand and bound to pay rent on the other, and under Section 108(b) of the Transfer of Property Act a lessor is bound in the absence of a contract to the contrary at the lessee’s request to put him in possession of what is leased which in this case includes the rent payable by the Sivaganga lessees. What then is the sort of possession of these rents which the plaintiffs are bound if requested to give the defendants? At Common Law for legal possession or season of rent, not only adornment by the tenant but also receipt of rent was necessary–Pollock and Wright on Possession, pp. 36,52. We have not^been referred to, nor have we succeeded in riding, any English case where the point is expressly decided. In Heelis v. Blain (1864) 18 C.B.N. S. 590 it was held that a conveyance operating under the Statute of Uses would of itself without more give ” actual possession ” of rent within the meaning of Section 26 of 2 Will. IV, C. 45, but that a conveyance at Common Law would not of itself give such possession. What is required in this country in addition to the conveyance has been considered by this Court with reference to leases or izaras of villages or other parts of permanently settled Estates which are of common occurrence and it was held in The Zemindar of Vizianagaram v. Behara Suryanarayana Pantulu (1901) I.L.R. 25, M. 587 at p. 592 that ” according to the common law of the land which especially prevails in Zemindaris and similar Estates the delivery of possession, when the owner transfers the estate or a portion thereof by sale, gift, lease or otherwise, is by the issue of orders or notices to the karnams or other village officers and also though not usually by a general proclamtion addressed to the ryots or others in occupation giving notice of the transfer and requiring them to attorn and pay rents to the transferee”, which as will be seen is very like what the defendants’ father stipulated for in this case. The effect of this is that in this country attornment by the tenants liable to pay the rent and receipt of rent from them are not necessary to give the transferee possession of the rent. This must, however, we think, be limited to cases where the transferor himself has possession to give, for a transfer by a claimant out of possession, even if followed by the usual notice, could not be said to amount to a delivery of possession. Here it is to be gathered from Exhibits A, B and C, to which the defendants’ father was a party, that the Sivaganga lessees took a lease of the 5 villages from the present plaintiffs’ mother and paid her rent in advance to the extent of Rs. 60,000. If so, the mother was in possession of the rent and her possession would enure to the benefit of her heirs, the plaintiffs and their sister. Apart from the special contract, therefore, it would appear that all that the plaintiffs and their sister could be called upon to do to give possession of the rent in question to the defendants’ father was to send notices to the Sivaganga lessees to pay it to him and this they have admittedly done.

10. The Subordinate Judge has gone further and found that by the terms of the compromise, Exhibit D1, read with Exhibit B, all that the plaintiffs’ sister, under Exhibit B, and all that she and the plaintiffs, under Exhibit D 1, were required to do Was to send notices to the Sivaganga lessees, and in this we fully agree with him. Exhibits A and B. show that the plaintiffs’ sister, a young gosha lady, was not in a position to bring suits herself financially or otherwise, and that the defendants’ father was to have sole conduct of the suit to be instituted against her sisters. During the suit he was to have the rent due from the Sivaganga lessees paid into Court, afterwards he was to get it collected, and at the expiration of their lease he was to recover the villages from them amicably or through Court. The defendants’ father must have known all about these 6 villages before he advanced Rs. 30,000 to the plaintiffs’ sister in October 1900, and he certainly had full notice of what could be urged in favour of the Zemindar in the written statement of the present plaintiffs in O.S. No. 18 of 1901, Exhibit N, and in connection with the unsuccessful attempt to make the minor Zemindar a party to that suit in August 1901, Exhibit O. Yet in the terms of the compromise, Exhibit D 1, he stipulates that the plaintiffs (here) shall refrain from interfering with the said villages during his lease, that he is to collect the rent from the Sivaganga lessees according to the terms of the lease, Exhibit D1, and that the plaintiffs and their sister are to send yadasts or notices co pay to the lessees. This, it appears to us, was all they were required to do to give possession, and they have done it. With regard to the further contention that the plaintiffs agreed to forego their rent until the defendants succeeded in recovering it from the lessees, we agree with the lower Court that 110 such agreement is proved and dismiss the appeals with costs. The Memoranda of Objections are dismissed but without costs.

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