KARNAM PARTHASARATHY Vs. KARNAM BARATHAMMA

JUDGEMENT

(1.) EXHIBIT A does not seem to be compulsorily registrable so far as the portions material for the decision of this appeal are concerned. It acknowledges the title of Parthasarathy and Rathangapani to the property in question under a prior conveyance and their possession under it for a longtime. It then contains a covenant on the part of Parthasarathy to pay Rs. 40 to the plaintiff every year and on the part of Rathangapani another sum of Rs. 40 to Lakshmamma. The property is made security for the payment of the amount; the last provision is that if the covenant to pay Rs. 40 is broken, the defaulter should relinquish his ownership in the property. The recital of the prior conveyance would not, of course, come within the terms of Section 17 of the Registration Act. The covenant to pay Rs. 40 may be enforced notwithstanding the absence of registration. The document is invalid for want of registration so far as it purports to make the property security for the payment of Rs. 40. The last provision amounts only to an agreement that Parthasarathy and Rathangapani should give up their ownership and does not itself extinguish their right. Under the terms of the document, therefore, the plaintiff would be entitled to sue for the amount of Rs. 40 due to her every year although she could not bring the property to sale for the amount. Her only other right under it is to sue for specific performance of the agreement to relinquish the property in case of default in the payment of Rs. 40. The present suit is for the recovery of the property and not for specific performance. The prayer for recovery of possession cannot be sustained. The defendant admittedly has not paid the amount due to the plaintiff in February 1909. His Vakil is willing that the plaintiff should have a decree for that amount. The decrees of the lower Courts are set aside and the plaintiff will have a decree for the sum of Rs. 40 with interest at 9 per cent, from the 1st February 1909 up to date of payment. There will be no order as to costs in any of the Courts. JUDGMENT

(2.) MR. Ramanath Shenai had put in appearance for the respondent. His name was not entered in the cause list when the case was heard by us on the 2nd instant. He, therefore, asked us to re-hear the case. We have acceded to his request and heard argument afresh. As pointed out by us in the judgment delivered on the 2nd instant, Exhibit A does not require registration so far as it relates to the covenant for the payment of Rs. 40 and to the agreement to relinquish the property in case of default in the payment of the amount every year. It is argued by MR. Shenai that, as Exhibit A is a decree, the provision making the payment of Rs. 40 a charge on the property does not require registration. MR. Sarma points out that Exhibit A passed a decree in terms of the compromise only in so far as it related to the suit and that it is not shown whether the terms relating to the payment by Parthasarathy and Rathangapani related to the suit. The plaint in the suit has not been put in. We consider it safe, therefore, not to decide the question in this case, whether the provision in question would be ineffective on the ground that Exhibit A has not been registered. This does not affect oar judgment for the re-payment of Rs. 40 to the plaintiff. The decree in the case, therefore will be in the terms of the judgment already delivered. The order as to costs will also stand.