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2000 DIGILAW 733 (MAD)

Navu Gounder v. Govindasamy Gounder & Another

2000-07-28

M.KARPAGAVINAYAGAM

body2000
Judgment : 1. Navu Gounder, the plaintiff, is the appellant herein. Having lost in both the courts below, the plaintiff has presented this second appeal challenging the judgment and decree dated 12. 1998 made in A.S.No.17 of 1997 on the file of the Additional District Judge, Villupuram confirming the judgment and degree in the O.S.No.969 of 1985 on the file of the District Munsif, Thirukoilur. 2. The short question that falls for consideration is as to whether the compromise degree under which the second respondent chains right regarding his half share in the suit property in the absence of registration under the Registration Act would confer any right on the second respondent for the sale of the said suit propertye 3. Thefacts are these; The appellant Navu Gounder is the younger brother of the second respondent Arumugha Gounder. The said Arumugha Gounder filed a suit in O.S.No.542 of 1973 before the District Munsif, Thirukoilur for declaration of items ‘A’ and ‘B’ in the schedule or in the alternative, for partition of his half share in those two items. Though the suit was decreed in respect of declaration of item ‘A’ in the schedule, the alternative prayer for partition was negatived. As against the said decree in regard to the declaration, the appellant herein filed an appeal in A.S.No.636 of 1973 before the Sub Court, Cuddalore. Ultimately, on the basis of the terms agreed upon by both the parties, a compromise decree was passed by the appellate court by which both items ‘A’ and ‘B’ of the schedule properties were divided into two halves. After this, the second respondent, elder brother, had sold the half share to the first respondent in the year 1985. In pursuance of the sale deed, the first respondent had taken possession in the year 1985. At this stage, the plaintiff/appellant has filed the present suit in O.S.No.969 of 1985 for declaration and recovery of possession. 4. The main point urged in the suit is that the compromise decree passed not having been registered cannot confer any right on the second respondent and therefore, he cannot sell the half share of the item ‘B’ property to the first respondent. 4. The main point urged in the suit is that the compromise decree passed not having been registered cannot confer any right on the second respondent and therefore, he cannot sell the half share of the item ‘B’ property to the first respondent. It is also contended that under O.23, Rule 3, C.P.C., as it stood prior to the amendment, where a compromise included matters extraneous to the suit, the said decree shall be registered under Sec.17(2)(5) of the Registration Act to make such decree executable and since the suit property was not the subject matter of appeal before the appellate court, where a compromise decree was passed, the said decree is not enforceable, as it was not registered under Sec.17(2)(5) of the Registration Act. This aspect has been dealt with in detail by the trial court as well as the appellate court and it was concluded that there is no necessity for registration under the Registration Act, as the suit property was one of the items in the schedule mentioned in the earlier suit and as such, the second respondent in pursuance of the compromise decree, has the right to sell the suit property. 5. Mr.S.Parthasarathy, the learned council appearing for the appellant, on the strength of the decisions in Byram Pestonji Gariwala v. Union of India , A.I.R. 1991 S.C. 2234 and Lalmuni Devi v. Shiv Shanker , A.I.R. 1980 Pat. 184 would submit that under O.23, Rule 3, C.P.C., as it stood prior to the amendment in the year 1976, a compromise can be effected in a suit in respect of the subject matter of the suit alone and where a compromise included other properties extraneous to the suit, then Sec.17(2)(5) of the Registration Act is to be complied with. 6. On going through the relevant provisions, it is clear that prior to the amendment in 1976, the compromise decree can be passed only in regard to the matters within the scope of the suit. But, after the amendment of the C.P.C., a consent compromise decree can be passed even though it comprehends matters falling outside the subject matter of the suit. It is made clear that the compromise decree passed prior to the amendment, in regard to the matter not falling within the subject matter of the suit, could be made executable by registering the same under the Registration Act. It is made clear that the compromise decree passed prior to the amendment, in regard to the matter not falling within the subject matter of the suit, could be made executable by registering the same under the Registration Act. There is no quarrel about this proposition. But in this case, both the properties, namely, ‘A’ and ‘B’ items given in the schedule are the subject matter of the suit in O.S.No.542 of 1973 on the file of the District Munsif, Thirukoilur. In the said suit, Arumugha Gounder, the second respondent herein, sought for declaration for both these items, i.e., ‘A’ and ‘B’ items in the schedule or in the alternative, partition of his half share in these properties. 7. Admittedly, the suit property in the present suit was one of the suit properties mentioned in the earlier suit. It is true that there is no appeal by the second respondent against the decree rejecting the alternative prayer for partition in respect of both the items. But, the fact remains that the compromise decree was passed in A.S.No.636 of 1973 on the file of the Sub Court, Cuddalore, in respect of both the suit properties, namely, the subject matter of the original suit. 8. The wordings “in respect of the whole or any part of the subject matter of the suit” under O.23, Rule 3, C.P.C., would clearly show that the court can pass a compromise decree dealing with the property which is the subject matter of the original suit. The failure to file an appeal against the rejection of alternative prayer would not change the situation, in view of the terms of the compromise memorandum signed by both parties and it would relate to both the properties mentioned in the original suit. Under those circumstances, Sec.17(2)(5) of the Registration Act would not apply. 9. It is also pertinent to note that in pursuant to the compromise decree, the plaintiff/appellant also sold the half share allotted to him. So, when such being the case, it has to be held that the compromise decree has been acted upon by both the parties, by submitting to the said compromise decree. 10. Under those circumstances, I do not find any substantial question of law in the second appeal so as to interfere with the findings arrived at by both the courts below, which have been given on the basis of the correct reasonings. 10. Under those circumstances, I do not find any substantial question of law in the second appeal so as to interfere with the findings arrived at by both the courts below, which have been given on the basis of the correct reasonings. Hence, the second appeal is liable to be dismissed and accordingly, it is admitted. No costs.