LOGANATHA MUDALI AND ORS. Vs. MANIKKAMMAL AND ORS.

JUDGEMENT

(1.) ONE Jayarama Mudaliar and his four brothers constituted a Hindu undivided family. The said Jayarama Mudaliar by a notice dated 25th August, 1952 brought about a severance of status, between him and his four brothers. On 24th September, 1952, he executed a deed of settlement with respect to his one -fifth share in the properties of the family. Under the terms of the deed, he granted the said one -fifth share in favour of the 1st defendant herein and defendants 2 to 7, subject to certain conditions. The 1st defendant was to take steps to have the one -fifth share divided by metes and bounds and to enjoy the same on condition of his paying a sum of Rs. 1,000 on 15th January, every year to the said Jayarama Mudaliar towards his maintenance and another sum of Rs. 1,000 on the same date towards the maintenance of his wife, the 1st respondent herein. Even after the death of Jayarama Mudaliar, the 1st defendant was to pay the sum of Rs. 1,000 to the 1st respondent herein so long as she is alive. The deed further provided that the 1st defendant was to take three -fourths of Jayarama Mudaliar's one -fifth share absolutely from the date of the document itself and to enjoy the same from generation to generation with all powers of alienation. With regard to the other one -fourth of Jayarama Mudaliar's one -fifth share in the family properties, that was also to be in possession of the 1st defendant and the 1st defendant was to enjoy its income but on the death of Jayarama Mudaliar and his wife, the said one -fourth share, it certain proportions, was to go to defendants 2 to 7 as allotted by the 1st defendant himself. The settlement deed contained the following condition also:

(2.) MR . K. Parasaran, learned Counsel for the appellants, put forward three contentions : (1) The revocation has to be effected only by means of a registered instrument, in view of the provisions contained in Section 17 (1) (b) of the Registration Act and that not having been done, there is no valid revocation. (2) The Court has got power to relieve the penalty of forfeiture provided in the document and the Court in this case should exercise that power. (3) In any event, defendants 2 to 7 have acquired a vested remainder in respect of the one -fourth share of Jayarama Mudaliar's one -fifth share in the family properties and consequently any decree that may be passed in this suit in favour of the 1st respondent can only be subject to the vested remainder created in favour of defendants 2 to 7. I shall deal with these points in that order.

(3.) AS far as the first point regarding the necessity for a registered instrument for revoking the settlement is concerned, the argument proceeds on a misapprehension. Section 17 (1) (b) of the Registration Act pre -supposes the existence of non -testamentary instrument which purports or operates to create, declare, assign, limit or extinguish any right, title or interest to or in immovable property and does not itself provide that a particular transaction should be carried out only by means" of a written instrument. Consequently, if there is a written instrument creating, declaring, assigning, limiting or extinguishing rights in immovable property, such -instrument must be registered. But it is not open to any party to contend that even if there is no other law requiring that particular transaction should be entered into only by means of a document in writing, still by virtue of Section 17 (1) (b) of the Registration Act, such a transaction can be effected only by means of a registered instrument. For instance, in the Transfer of Property Act, Section 54 dealing with the sale, Section 59 dealing with the creation of mortgage, Section 107 dealing with, the lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent, Section 118 dealing with exchanges, Section 123 dealing with making of a gift and Section 130, dealing with transfer of actionable claim, provide, that the transactions dealt with by the said sections must be carried out only by an instrument in writing. Mr. Parasaran has brought to my notice no -law which requires that the revocation of a settlement as contemplated by the settlement in question must be effected only by means of a written instrument, which because of Section 17(1)(b) of the Registration Act, will have to be registered. Consequently, in the absence of any other provision independent of Section 17(1)(b) of the Registration Act, requiring that the revocation should be effected only by means of a written instrument, it is not possible for me to hold that the revocation in question must be effected only by a registered instrument, in view of the provisions contained in Section 17(1)(b) of the Registration Act. Mr. Parasaran, in this context, relied upon the decision of the Supreme Court in Kaihinath Bhaskar v. Bhaskar Vishweshwar : [1952] 1 SCR 491 . In that case, there was actually a written document coming within the scope of Section 17(1)(b) and the Supreme Court pointed out that the document must be registered. It is not the case of the learned Counsel for the appellants In the present second appeal, that there has been a written document executed by the 1st respondent coming within the scope of Section 17(1)(b) of the Registration Act and that pursuant to that section it must be registered. Therefore I am unable to accept the contention of the learned Counsel for the appellants that in this case the revocation effected by the 1st respondent is not valid because it has not been effected by means of a registered instrument.