Annasamy Asari v. Siva Prakasa Mooppanar — 1993 DIGILAW 387 (MAD)

Judgment :- 1. This Second Appeal by the plaintiff is against the reversing judgment in A.S. No. 10/1981 by which O.S. No. 164/78 filed by the appellants for redemption of othis has been dismissed on the ground that the plaintiffs have not proved their title to the suit property. According to the plaintiffs, one Sankaran Achari became the owner of the suit property pursuant to the decree dated, 9.1.1940 in O.S. No. 245 of 1936 on the file of District Munsif Court, Srivilliputhur pursuant to the compromise memo filed by the parties therein. Further, according to the plaintiffs, the said Sankaran Achari, sold the property under Sale Deed dated 23.2.1951 to the plaintiffs father Narayana Achari and subsequently the plaintiffs father executed a registered will dated 21.3.1973 in favour of the plaintiffs. But in the Court below, the plaintiffs appellant did not file the abovesaid three documents, though out of the abovesaid three documents, two were listed as documents to be filed, as found in the plaint. Those two documents are the abovesaid sale deed and the registered will. 2. Now, in this Second Appeal, soon after filing the Second Appeal, CMP. No. 8952 of 1983 has been filed for reception of the abovesaid decree, dismissing O.S. No. 245 of 36 pursuant to the abovesaid compromise and the abovesaid sale deed dated 23.2.1951 as additional evidence. To the said CMP. no counter has been filed. The relevant averments in the supporting affidavit to the said C.M.P. are as follows:— “The lower appellate court while reversing the well considered judgment of the trial court, has commented upon the non-production of the compromise decree in O.S. No. 245/1936 and the sale deed dated 23.2.1951 executed by one Sankaran Asari in favour of my father Narayana Asari. Though we have mentioned about the compromise decree and the sale deed at the earliest point of time, despite exercising due diligence, we were not able to produce them at the time of trial. The documents were kept by my father Narayana Asari separately and we were able to get them only now when I shifted my house after the judgment and decree of the lower appellate court. The non-production of the said documents is neither wilful nor deliberate but due to the reasons aforesaid”. As against these allegations, since there is no counter I am allowing the said C.M.P. 3. The non-production of the said documents is neither wilful nor deliberate but due to the reasons aforesaid”. As against these allegations, since there is no counter I am allowing the said C.M.P. 3. The appellants have also filed another C.M.P. recently viz. CMP. No. 4077 of 1993 for reception of the abovesaid registered will dated 21.3.1973 as additional evidence. No doubt, to this C.M.P. counter has been filed. But the allegation in the supporting affidavit is as follows:— “I state that we inherited the suit property from our father who had executed a will on 21.3.1973. It is a registered will. This will has been referred to even in the plaint. However this has not been seriously disputed in the written statement filed by the respondent The only averment in paragraph 9 of the written statement is that the will dated 21.3.1973 is void. However we could not produce the original will at the time of trial. Despite exercising due diligence, we were not able to produce the will at the time of trial. The non-production of the Will is neither wilful nor deliberate.” As against these allegations, I do not find any specific refutation of those allegations in the counter affidavit filed. But it is mainly stated that the C.M.P. is belated. Any way, since the will is a registered one and taking into account the abovesaid allegations in the supporting affidavit I am allowing this CMP also. However in view of the fact that these CMPs. have been filed at a belated stage, I award costs to the respondent which is fixed at Rs. 500/-, to be paid within four weeks. 4. Now, the abovesaid three documents having been taken as additional evidence, a finding has to be called for regarding the truth and validity of these documents. Accordingly, I direct the trial Court to render finding on the truth and validity of the abovesaid three documents preferably within three months from the date of receipt of the copy of this order. The parties are at liberty to let in oral and documentary evidence. In pursuance of the aforesaid order the Additional District Munsif, Srivilliputhur submitted the following findings. [Omitted. The parties are at liberty to let in oral and documentary evidence. In pursuance of the aforesaid order the Additional District Munsif, Srivilliputhur submitted the following findings. [Omitted. — Ed.] xx xxx xxxx xxxx This Second Appeal coming on for final hearing on Wednesday, the 21st day of July, 1993 and having stood over for consideration till this day after the return of the Findings, the Court delivered the following Judgment:— In this Second Appeal by the plaintiffs, arising out of a mortgage-redemption suit, since the lower appellate Court has dismissed the suit on the ground that the plaintiffs have not proved their title to the suit properties, I, by my order dated 26.3.1993, allowed reception of three documents, which the plaintiffs alleged would prove their title, as additional evidence, and directed the trial court to submit a report on the truth and validity of the said documents, after holding enquiry thereon. The trial court has now submitted the report holding that the said documents Exs. A6, A7 and A8 are true and valid. The respondent alone filed objections to the said report. 2. Of the three documents Ex. A7 is actually dated 9.9.1938 (and not 9.1.1940 as stated in my aforesaid order dated 26.3.1993) and it is the decree in O.S. No. 245 of 1936, which was filed by one Sankaran Asari in relation to the suit property, against certain third parties. The said suit, which was filed claiming a sum of Rs. 828.11.2 due under an othi, was dismissed pursuant to the compromise memo filed by the parties therein. The operative portion of the said decree is as follows:— “Date of judgment and result. 9.9.38, in pursuance of the deed of compromise this Court doth order and decree that this be and the same hereby is dismissed.” The relevant portion of the said memo of compromise attached to the said decree runs as follows:— Tamil So, if the amount referred to therein was not paid by 9.1.1940, according to the said compromise, the property referred to therein becomes the property of the plaintiff Sankaran Asari therein as a purchaser. 3. According to the plaintiffs-appellants, Sankaran Asari got title to the suit property by virtue of the abovesaid decree and subsequently by Ex. A6, he sold the said property to plaintiffs father, who in turn, by the Will Ex. A8, bequeathed the said property to the plaintiffs. 3. According to the plaintiffs-appellants, Sankaran Asari got title to the suit property by virtue of the abovesaid decree and subsequently by Ex. A6, he sold the said property to plaintiffs father, who in turn, by the Will Ex. A8, bequeathed the said property to the plaintiffs. But, the learned counsel for the respondent points out that the alleged vendor of the plaintiffs father, viz., Sankaran Asari himself did not acquire title by virtue of Ex. A7, since the memo of compromise therein has not been r egistered and that Ex. A7 being not a decree in terms of compromise”, but only a decree of dismissal of the suit pursuant to the memo of compromise, is not exempted from registration under S. 17(2)(vi) of the Registration Act, (hereinafter referred to as ‘the Act’). In support of the said contention he relied on the decisions of The Official Assignee of Madras v. Subba Rao (1934) 67 M.L.J. 836 = 40 L.W. 615 and Fazal Rasul v. Mohd. Ul-Nisa AIR 1944 Lahore 394. 4. The relevant observation in AIR 1944 Lahore 394 @ 395-396) is as follows:— “An order such as decree passed in terms of the compromise” would be utterly incomprehensible without reference to the compromise and therefore the compromise could be regarded as embodied in the decree. But as stated the parties have compromised and the suit is therefore dismissed” is quite comprehensible and intelligible without reference to any particular form of compromise and that being so the particular compromise which led to the dismissal cannot be said to have been in any way embodied in the decree. In the present case the order really means that because the parties had settled, the suit had to be dismissed. It did not mean that the suit was dismissed on the particular terms arrived at between the parties by their compromise. In the present case the order really means that because the parties had settled, the suit had to be dismissed. It did not mean that the suit was dismissed on the particular terms arrived at between the parties by their compromise. In that view of the case, it is clear that the document required registration and as it was not registered the view of the learned Single Judge that the compromise was inadmissible is unassailable.” In (1934) 67 M.L.J. 836 = 40 L.W. 615 (supra) also it was, inter alia, held that the relevant agreement therein was not a decree or order of Court under S. 17(2)(vi) of the Act as it did not in any sense form part of the Court order and as the parties did not apply to the Court to record the terms of the agreement. So, it was held to be inadmissible, it being not registered. 5. As against these decisions, though the learned counsel for the respondent submitted that he would cite contra decisions, he did not do so. No doubt, he submitted a written argument on this point, wherein he only stated that the terms of the abovesaid compromise were “embodied” in the abovesaid decree and that hence A.I.R. 1944 Lahore 394 (supra) would not apply. 6. But, it should be noted that the decree was not in terms of the compromise, but the decree was dismissal of the suit, no doubt pursuant to the compromise entered into between the parties. Even though the memo of compromise purports to be part of the decree, the said memo of compromise could not be regarded as embodied in the decree since the decree of dismissal as such is intelligible even without reference to any particular form of compromise. The decree only means that because the parties had settled the suit, it had to be dismissed and that it does not mean that the suit was dismissed on the particular terms arrived at between the parties by their compromise. As per S. 17 (2)(vi) of the Act unless the decree is expressed to be made on a compromise and relates to the suit property the decree cannot claim exemption from registration. A decree cannot be expressed to be made on a compromise, unless the decree is passed in terms of the compromise. As per S. 17 (2)(vi) of the Act unless the decree is expressed to be made on a compromise and relates to the suit property the decree cannot claim exemption from registration. A decree cannot be expressed to be made on a compromise, unless the decree is passed in terms of the compromise. Therefore, S. 17 (2)(vi) of the Act will not apply and if the abovesaid Sankaran Asari has to acquire title as purchaser to the abovesaid property and memo of compromise should have been registered, and proof should be shown that the above referred to suit amount therein was not paid within the stipulated time and othi therein was not redeemed. If the said compromise memo itself will not amount to a sale deed, it may also be argued that Sankaran Asari should have filed a suit for specific performance of the said memo of compromise and got a decree and subsequently a sale deed pursuant to the decree. 7. Further, it is stated in the abovesaid written submission of the learned counsel for the respondent that the abovesaid compromise decree does not bring into being any new title. This submission also cannot be accepted. The compromise does create a new right in favour of Sankaran Asari if payment was not made to Sankaran Asari within the time allowed under the compromise. In the above circumstances, both the abovesaid decisions do apply to the present case and in view of the non-registration of the abovesaid memo of compromise Sankaran-Asari, did not get any title to the suit property pursuant to Ex. A7 and consequently the plaintiffs also do not get any title. 8. In the result, the Second Appeal is dismissed with costs. The above referred to order dated 26.3.1993 shall also form part of this judgment.