Compromise decree when exempted from registration.

This is a Second Appeal against the Judgment and Decree in A.S. No. 310 of 1954 on the file of the District Court of South Arcot, confirming the decree in O.S. No. 83 of 1953 on the file of the Court of the Subordinate Judge of Cuddalore.

Meenakshi Ammal, the plaintiff in the suit, O.S. No. 83 of 1953, sued her husband the first defendant and his brother, the second defendant, for partition and separate possession of a half share in the suit properties and for past and future mesne profits In an earlier suit, O.S. No. 137 of 1950 on the file of the Sub-Court, Cuddalore, Meenakshi claimed separate maintenance from her husband, the first defendant alleging desertion on his part. That suit ended in a compromise between the two spouses and a compromise decree was passed on 21st December, 1951. The amount of maintenance payable by the husband to the wife was fixed at Rs. 150 per mensem and a charge on the properties in that suit was created in favour of the wife for the due payment of the maintenance amount. The razinama between the parties also provided that the properties comprised in that suit, O.S. No. 137 of 1950 were to be enjoyed in common by the husband and the wife as co-owners and that the income should be utilised for the maintenance of the wife as well as for the maintenance of the husband. The compromise further provided that if the husband and the wife could not amicably enjoy the properties in common, the wife could have a division of the properties effected by metes and bounds and obtain a moiety thereof. The parties to the compromise also agreed that neither of them could alienate any item of the properties without the concurrence of the other. All the terms of the razinama were reduced to writing and were incorporated as part of the razinama decree. But the operative part of the decree however only ran as follows:

“.....this Court doth in pursuance of the said deed of compromise order and decree among other terms contained in the compromise set out as below as follows: (1) That the maintenance payable by the 1st defendant to the plaintiff is fixed at Rs. 150-0-0 per mensem and the same shall be paid from 5th July, 1950, by 1st defendant. (2) That the properties mentioned in the compromise and also the properties of the 1st defendant alienated to the various persons shall be a charge for the payment of the above maintenance. (3) That the properties in the hands of defendants (2) and (3) be proceeded against last in case there is any need for realising the maintenance from those properties.”

The suit out of which this appeal arises was filed by Meenakshi to enforce partition as per one of the terms of the razinama alleging that she could no longer continue amicably with her husband.

The first defendant, the husband, remained ex parte at the trial of the suit. The second defendant is the divided elder brother of the first defendant. He claimed to have purchased the suit property on 17th December, 1952, from the first defendant by a registered sale deed for an alleged consideration of Rs. 5,000. His main defence to the suit: was that the compromise decree required to be registered compulsorily under the provisions of the Indian Registration Act, and not being registered was inadmissible in evidence, and that the plaintiff can have no relief granted to her on foot of the compromise.

Both the Courts below held that the compromise decree was not compulsorily registrable, that it was therefore admissible in evidence, and that the plaintiff’s claim was well founded. The plaintiff was therefore granted a preliminary decree for partition as prayed for. An enquiry into mesne profits, past and future, was directed to be held under Order 20, rule 12, Civil Procedure Code. This Second Appeal has been preferred by the second defendant.

The only question that arises for determination is whether Exhibit A-2, the razinama decree in O.S. No. 137 of 1950 requires compulsory registration under the provisions of the Indian Registra