JAGDISH NARAIN SINGH Vs. BANDE ALI MIAN

JUDGEMENT

(1.) IN this second appeal the defendants first party are the appellants. The plaintiff filed a suit for recovery of possession of a house situated on 3 kathas and 10 dhurs of land in the town of Muzaf-farpur. One Roza was the father of the plaintiff. Roza had a wife called Bashiran, a daughter named Zohra and another son named Mehdi Hussain. IN 1901 Roza executed a bai mokasa deed conveying the disputed house with zamindari properties in favour of Bashiran. Bashiran applied in the Land Registration Department for registration of her name with regard to the milkiat property which stood recorded in the name of the plaintiff. The plaintiff objected and the application of Bashiran was rejected. IN 1904 Bashiran brought a suit with regard to the milkiat property in which the plaintiff, Mehdi, and Roza were the defendants. The daughter was not a party and the house was not the subject-matter of the suit. On 18 January 1904 a compromise was arrived at between the parties and in the compromise petition this house was also included. By that compromise Bashiran was to remain in possession as malik for life and after her the house was to go to Roza for life. Bashiran had no power to alienate except for necessity. After Roza the property was to go to the plaintiff and his brother. Zohra was not a party to the compromise, although by the compromise petition she was given 4 bighas of land. IN December 1916 Bashiran sold the house to Zohra and Roza was an attesting witness of the deed. IN June 1923 Zohra executed a bharna deed in favour of one Ram Charitar, the ancestor of the defendant second party. IN September 1923 Bashiran executed a deed of surrender in favour of the plaintiff with regard to all the properties included in the bai mokasa deed. IN January 1930 Zohra executed a deed of conditional sale in favour of Nokh Lai and in August 1930 a deed of sale in favour of defendant 1 was executed, the consideration being the bharna and the conditional sale deeds. On 15 January 1934 Bashiran died and the present suit out of which this appeal arises was instituted on 31 October 1935. The trial Court decreed the suit in favour of the plaintiff by declaring his title and right to recover possession of the same; the lower Appellate Court has confirmed the decision of the trial Court.

(2.) MR. L.K. Jha appearing on behalf of the defendants first party who are the purchasers of the property by the deed of sale in 1930 has raised four points in this second appeal: (1) whether the son would get any title to the house which was not the subject-matter of the suit although it was included in the compromise petition; (2) even if there was title created with regard to the house by the compromise decree whether Bashiran got an absolute estate specially when any curtailment of her right would be repugnant to Mahomedan law; (3) when Bashiran got possession admittedly under the bai mokasa deed whether her title can be challenged by virtue of the title in the compromise decree, and (4) the question of limitation. Now, with regard to the first point MR. L.K. Jha urges that the bai mokasa deed could not be modified by the compromise which included property that was not the subject-matter of the suit and which compromise was not registered. He has strongly relied upon the case reported in Hemanta Kumari Debi V/s. Midnapur Zamindari Co. A.I.R (1921) . P.C. 79 and relying upon this case he urges that even if registration is not required the compromise decree is only evidence of the agreement but it does not pass any title. He also refers to the case in Kallar Chaudhury V/s. Mt. Kamod Choudharain A.I.R (1936) . Pat. 300. In Hemanta Kumari Debi V/s. Midnapur Zamindari Co. A.I.R (1921) . P.C. 79 the decree recited the claims in the suit, and the petition for compromise, and granted a decree in the terms of the compromise which were then set out in full. It was held: The compromise was not an ?agreement to lease, within the meaning of Section 17, Registration Act (16 of 1908), and was therefore admissible in evidence under, Section 49 of that Act though not registered. The phrase agreement to lease in that Section relates to some document that creates a present and immediate interest in the land, and not a document like that in the present case from which it was impossible to say whether there would be a lease or not. It was further held that if the agreement were regarded as being decree it is exempted from registration by Section 17, Sub-section (2)(vi) and on the true construction of Section 375, Civil P.C., 1882, is nonetheless a decree under Section 17, Sub-section (2)(vi) because though the whole of the agreement or compromise is recorded in it, the operation of the decree is limited only to so much of the subject-matter of the suit as is dealt with by the agreement. As a decree it may be incapable of being executed outside the land of the suit compromised, but can still be received in evidence of its contents, though unregistered. 4. It may be noted that this was a case in which the suit was for specific performance of a contract which the defendants had made with a firm and the respondents were claiming the benefit of the contract as assignees and the question before their Lordships of the Judicial Committee was whether the agreement with regard to matters outside the scope of the suit which was included in the compromise decree had to be registered before it could be used as evidence and their Lordships held that the decree was sufficient evidence of the compromise or the agreement. MR. L.K. Jha relies upon the distinction that has been drawn between a compromise decree being evidence of the agreement and its effect on the question of title with regard to the property which was outside the scope of the suit. On this point my attention has been drawn by MR. S.A. Khan to two cases. The first one is reported in Bisseswar Ram V/s. Mahadeo Pahan A.I.R (1917) . Pat. 9 where Mullick JM after referring to certain decisions, held that so far as it relates to properties within the scope of the suit a compromise decree operates as res judicata, but so far as it relates to properties outside the scope of the suit, such a decree, if the terms of the compromise are embodied with the decree, is of an agreement to transfer an interest in the property. It is not necessary in such a case to register the compromise petition. 5. Later on, while summarizing his decision on this point, the learned Judge has stated: As the compromise decree has just been found to be operative and to be evidence of title in favour of Bisseswar the Court must oonsider it in arriving at a decision In Suit No. 935. But the difficulty is that this case was decided before the amendment of 1929. The second case relied on by MR. S.A. Khan is the case in Karu Mian V/s. Tejo Mian A.I.R (1918) . Pat. 139 which also decided that a decree dealing with properties not included in the suit, although not registered, is evidence of an agreement between the parties under which certain lands have been allotted to each. 6. MR. S.A. Khan relies further on Muhannmmad Ismail V/s. Bibi Shaima A.I.R (1934). Pat. 203 where it was held that "an executing Court has no power to discuss the validity of the terms of the decree which he is directed to execute" although the terms of the compromise include properties outside the scope of the suit. This case is not directly in point on the subject. He also relies on Ramaswami Naidu V/s. Subbaraya Tevar A.I.R (1925) . Mad. 1101 which is more in point and which says that a decree passed on a compromise cannot be regarded as ultra vires simply because it goes beyond the subject-matter of the suit and contains other conditions. If the terms of the compromise decree which do not relate to the suit appear either directly or indirectly as considerations on which the settlement of the plaint claim was based, then such terms may be considered as part of the decree executable with it. and their Lordships of the Madras High Court also questioned the power of an executing Court to discuss the validity of a compromise decree on the ground of some portion of it dealing with properties beyond the scope of the suit. But the real distinction between the present case and the cases cited by MR. L.K. Jha lies in the fact that here was a case for possession on the basis of the compromise whereas the oases cited by MR. L.K. Jha were dealing with cases in which there was a suit for specific performance. 7. The agreement was more or less in the nature of an executory agreement. I may refer to some of the oases cited by MR. S.A. Khan in support of the present judgment. The first case is Poovvanayi Ayissa V/s. Purayil Kundron Chokru A.I.R (1920) . Mad. 242 which is a Pull Bench decision of the Madras High Court where the question that was discussed was whether at the execution stage a compromise arrived at between the parties with regard to some immovable property of the value of over Rs. 100 should not be exempted from registration and it was answered by the Pull Bench that it did not require registration. The case that is directly in point in favour of MR. Khan is the case reported in Sankaravelu Pillai V/s. Muthusami Pillai A.I.R (1916) . Mad. 536. This is also a decision from the Madras High Court--a Full Bench decision-- where his Lordship (Tyabji J. who delivered the judgment of the Court) said : I feel therefore no hesitation in arriving at the conclusion that the lower Appellate Court was right in the conclusion at which it arrived, that Ex. 2 can be adduced in evidence and can be read as part of the decree (Ex. 5) so as to affect the immovable property compromised therein notwithstanding that it has not been registered. and I should also refer to the observation of Ayling J. in the same case where he said that he agreed with his brother Judge in holding that the razinamah, Ex. 2, does not require registration to render it admissible in evidence or operative as a transfer of the suit property to Minakshi. 8. There was another case cited and that is the case in Sital Prasad Singh V/s. Janki , but that is not very much in point. So respectfully agreeing with decision in Sankaravelu Pillai V/s. Muthusami Pillai A.I.R (1916). Mad. 536 I am of opinion that the first point urged by MR. L.K. Jha, on which he mainly relied in questioning the correctness of the decision of the Courts below fails. Now the next point is as to what was the nature of the title created by the compromise decree which included property outside the scope of the suit. MR. L.K. Jha says that a limited ownership is unknown to Mahomedan law and that Mt. Bashiran could not be held to be holding only a life estate; but evidently this proposition has to be considerably modified in view of the fact that this was an estate created by contract. If it were a case of gift, certainly a limited estate would be repugnant to Mahomedan law as was held in Abdul Wahid Khan V/s. Mt. Nuran Bibi (1885) 11 Cal. 597. 9. Moreover, one cannot lose sight of the fact that the Courts below have dealt with this agreement as a sort of family arrangement and on that point authorities are not wanting in which it has been held that in an estate created by contract as a sort of family arrangement transferred to a lady limited ownership is permissible even in Mahomedan law. If any authority is required on that point I may refer to the case of Khaamrunnisa V/s. Hazarah Sahib . The decision is to the effect that a transfer of property to a Mahomedan lady for a term (here for her life) by the husband in consideration of dower must be regarded as a sale and not as a gift of a life estate and such a transaction is unimpeachable under the Mahomedan law. The case in Mubarakunnisa V/s. Mansab Hasan Khan (1911) 33 All. 421 is on the same point where the question was as to the nature of the title that was transferred under certain conditions. That was a case in which a Mahomedan made over to his wife, to whom a dower of Rs. 1,25,000 was due, certain property. In the deed of transfer it was stipulated (1) that the wife was to take possession of the property in lieu of her dower and enjoy the usufruct; (2) that the property was to revert to the husband if the wife predeceased him, the dower debt being deemed to have been discharged; (3) that if the husband predeceased the wife the property was to become hers absolutely. It was held that the transaction was neither a mortgage by conditional, sale nor a mahabat, but the wife obtained a right to enjoy the usufruct during her husband's lifetime with the possibility, of the interest developing into full ownership if the husband predeceased her. 10. I need not refer to several other cases-that were referred to but this much is clear, taking into consideration the circumstances under which the compromise was arrived at, that it was a sort of contract between the parties which the Courts below have determined to be a family arrangement by whioh certain rights of the property were allowed to Mt. Bashiran by the other members of the family and there were certain restrictions also placed upon her power to alienate. In view of the various authorities that have been discussed, above I do not think there was anything, repugnant to Mahomedan law in this family arrangement and therefore the interest, which Mt. Bashiran had was a life-interest in the property. These are the main points upon which MR. L.K Jha relied, the question of limitation being not seriously pressed; and as all these points have failed I am afraid the appeal must be dismissed with costs. Leave to appeal under the Letters Patent is refused.