RAJAH D K THIMMANAYANIM BAHADUR VARU, RAJAH OF KALAHASTI Vs. RAJAH DAMARA KUMARA VENKATAPPA NAYANIM BAHADUR VARU

JUDGEMENT

(1.) All these appeals relate to the recovery of allowances payable out of the Kalahasti estate. Appeals Nos. 28, 39 and 387 are from O.S. No. 50 of 1916 and 58, 69 and 70 are from O.S. No. 86 of 1916 and all relate to the allowance payable to one Chennappa, the father of the plaintiff, in O.S. No. 86 of 1916; whereas the remaining appeals, Nos. 280, 288, 352 and 353, relate to an allowance granted to one Lakshmikantamma, widow of the Rajah Venkatappa, by his will in 1894. These latter will be dealt with after considering the first batch of appeals. One Venkatappa, Rajah of Kalahasti, died in 1881 leaving a will whereby he left the estate to his eldest son Muthu Venkaappa and granted allowances to his other sons. In 1890 the second son Timma filed a suit against Rajah Muthu Venkatappa for partition of the estate alleging that it was joint family property and not an impartible estate. This suit was compromised and a decree passed therein on 30 March 1893, whereby it was decreed that the estate was impartible and certain allowances were fixed for each of the brothers and their male descendants and made payable out of the estate The allowance was then fixed at Rs. 600 per mensem for ten years from 1892, and thereafter at Rs. 700 per mensem. This provision was embodied in the District Court's decree, but in appeal the High Court deleted so much of the decree as related to the allowances on the ground that they were beyond the scope of the suit and merely gave a decree declaring that the estate was impartible. Under the final decree, therefore, this maintenance allowance was not charged upon the estate, but it was so charged under the terms of the compromise. The next step was taken by another brother, Chennappa, the father of the plaintiff, in O.S. 86 of 1916,. He brought a suit, O.S. No, 88 of 1895, for the recovery of the allowance due to him under the compromise. This suit was compromised on 20 April 1896, and an allowance of Rs. 650 per mensem was ordered to be paid to the plaintiff and his male descendants and this allowance was made a charge upon the estate. Chennappa took out execution of this decree on several occasions, but finally it was held that the decree was not executable, but that a suit should be filed thereon. The final order in this respect was passed by the High Court on 7 January 1915. Accordingly Chennappan's son who had obtained an assignment from his father brought O.S. No. 86 of 1916 to recover these allowances, and certain transferees of a portion of the past allowances brought O.S. No. 50 of 1916 for recovery of the amount assigned to them. The District Court has allowed the claims and has passed a decree for the sale of portions of the estate which are now in the hands of alienees. So far as the appeals against the decree in O.S. No. 50 of 1916 are concerned, it appears that plaintiff 1 died shortly after they were filed. In one of these appeals an attempt was made to bring his legal representatives on record but long out of time, and in the others no such application has been made and it is only now that we are asked to excuse the delay and bring on the legal representative. No grounds for excusing the delay have been put forward and certainly there are no valid reasons for excusing the gross negligence of which the appellants have been guilty. As the decree is a joint decree in favour of three persons, it would be useless to set aside as regards two of them a decree which the third party can execute. The decree must, therefore, stand as it cannot be set aside against him in his absence. As the appeals have abated so far as plaintiff 1 is concerned, it follows that they must be dismissed with costs: vide Wajid Ali Khan V/s. Puran Singh . The memorandum of objections in appeal No. 69 is not pressed and is dismissed. The Letters Patent appeal which concerns stay of execution must fail on the abatement of Appeal No. 39 and is also dismissed with costs.

(2.) The remaining appeals are divided into two sets: those relating to the allowance granted to Venkatappa by the decree in O.S. No. 33 of 1895; and the other set, with which I will deal later, relating to an allowance made payable to Venkatappa's widow Lakshmikantamma under her husband's will and under the decree in O.S. No. 15 of 1897, a suit brought to enforce the terms of the will.

(3.) In the first set of appeals the first question for consideration is: What is the nature of the maintenance allowance decreed to Venkatappa and from what date did it form a charge on the Kalahasti Estate? O.S. No. 12 of 189C was a suit for partition, but the partition was disallowed (except as to certain moveable properties) and the estate was declared impartible and certain allowances were held to be payable to the male members of the family and their male descendants. It is suggested for appellants that the allowance granted under the compromise was merely a maintenance allowance such as would ordinarily be payable in law to male members of an undivided family, the senior of which held an impartible estate. Apart from the fact that this provision of law, which can only be customary law, can hardly be called well settled, the contention cannot be accepted; for the allowances were fixed by a compromise which was a settlement of family disputes. There is no reason to suppose-that the claim that the estate was subject to partition was a purely fictitious claim or that its abandonment did not receive valuable consideration in the shape of the allowances. It is thus clear that the terms of the compromise came into existence as the settlement of a bona fide family dispute. The compromise was embodied in the original decree but most of its terms were omitted in the final appellate decree. Nonetheless the terms of the compromise were binding on the parties and from its date the allowance formed a charge upon the impartible estate. It is contended for appellants that the compromise itself is inadmissible in evidence for want of registration under the provisions of the Registration Act. Under Section 17 (2) (vi) of that Act a decree or order of Court need not be registered. The part of the compromise allowing this charge is not embodied in the decree and the argument is that, as it is not so embodied, in order to be admissible in evidence it must be registered. This point has been considered on several occasions. In Hemanta, Kumari Debi V/s. Midnapur Zamindari Co. A.I.R. 191 P.C. 79, it was held that, when a compromise was recorded in a decree, not only those portions thereof which became operative under the decree, were exempt from registration, but also the other provisions which were not embodied in the decree. A prior case, Pranal Anni V/s. Lakshmi Anni [1899] 22 Mad. 508, was distinguished on the ground that in that case there were two separate agreements, one of which had not been put before the Court for judicial consideration and, therefore, required registration. Again, in Ariyaputhra Goundan V/s. Ettiya Goundan [1917] 6 M.L.W. 635, Bakewell, J., and myself, following this Privy Council case, held that the portions of the razinama, which had not been embodied in the decree, but which had been under the consideration of the Court, did not require registration. This view was accepted by the Full Bench in Poonvanayi Ayina V/s. Kundron Choken [1920] 43 Mad. 688, which held that the mere recording, of a compromise petition by a Court was sufficient to bring it within the meaning of Section 17 (2) (vi), Registration Act. The compromise of 1893 is, therefore, admissible in evidence and the charge must be deemed to have been created on 30 March 1893 and alienations since that date must be deemed to be made subject to the charge.