- (1.) THIS second appeal has been filed by one Gokul Chand against whom suit for rendition of accounts has been decreed by the trial court and excepting for slight modification in the decree the lower appellate court has also confirmed the decree. According to the allegations made in the plaint, the property was originally owned by Kunwar Kekai Nandan Sahai. He died in the year 1947, leaving behind three sons, namely Jagdish Chandra, plaintiff-respondent No. 1, Gokul Chand, appellant and Keshav Chandra, defendant-respondent No. 2. Sri Kekai Nandan Sahai had also left behind a widow, Smt. Jamuna Kunwari. It is claimed that properties mentioned in Schedule I were inherited by Smt. Jamuna Kunwari who died in 1973 and by the three sons who are parties to this litigation. Each one of the sons had 1/4th share in properties mentioned in Sch. I. The properties mentioned in Schedule No. 2 was gifted by means of registered gift-deed dated 9-4-1948 in favour of the plaintiff-respondent Jagdish Chandra. On 5-1-1948 the plaintiff respondent and respondent No. 2 Kesheva Chandra jointly appointed the appellant as agent and Mukhtar Aam for collecting rents of house, agricultural and zamindari-properties and manage and to do all incidental acts relating thereto in all courts and office. THIS Mukhtar-i-nama Aam was duly registered. The Mukhtiar-nama Aam was revoked on 5-3-1960. During the period that the appellant was the Mukhtiar-i-Aam of the respondents he made realization of the profits and income of the share of the respondents and handled the cash that was left by Sri Kekai Nandan Sahai, including deposits in Calcutta National Bank. The appellant also realized revenues and other income of the villages during the zamindari days. A notice of demand was sent to the appellant but he did not accept it and did not render accounts. A suit was, therefore, filed for rendering of true and full accounts of money realized by the appellant as agent and manager for the period between 5-1-1948 and 6-3-1960. It was also prayed that the suit be decreed if the amount was found due after rendition of accounts.
(2.) THE appellant in the course of the written statement contested the suit and claimed that the respondent No. 1 was not entitled to any relief for rendition of accounts and the compromise decree passed in Suit No. 46 of 1956 on the basis of a compromise on 26-2-1960 to which the plaintiff- respondent was a party was binding on the parties. THE respondent No. 1 never inherited any property. THE gift deed mentioned in the plaint was obtained by fraud from Smt. Jamuna Kunwari. Smt. Jamuna Kunwari had herself brought a suit in 1957 for the cancellation of the gift-deed. That suit was disposed of in terms of the compromise in Suit No. 46 of 1956. THE properties in suit were absolute property of Smt. Jamuna Kunwari, the mother of the parties. She had also received assets worth about four lakhs from her maternal grandfather who was a Punjab High Court Judge. Sri Kekai Nandan Sahai held the properties mentioned in Schedule No.1 as Benami of Smt. Jamuna Kunwari, Suit No. 46 of 1956 was brought by respondent No. 2 claiming rendition of accounts from the appellant in his capacity as Mukhtiar-i-Aam and Karta of the joint family. In the compromise in that suit to which the plaintiff- respondent was also a party and the relief claimed in that suit was in respect of the properties shown at the foot of the plaint and according to the compromise decree in that suit the properties appended to the plaint were treated as the entire property belonging to Smt. Jamuna Kunwari and all incomes were realised by her. That judgment is binding on the parties. THE appellant was, therefore, not liable to claim accounts. THE pleas of estoppel and res judicata were also raised in view of the decree passed in Suit No. 46 of 1956. THE Mukhtar-nama Aam was given for specific purpose for the sale of share in the properties which belonged to the parties' father. That house did not yield any income. Respondent No. 2 claimed that he and plaintiff-respondent No. 1 were entitled to the rendition of accounts and he was prepared to pay court-fees if any decree was passed in his favour. The learned Additional Civil Judge who tried the suit on the original side framed issues regarding the liability of the appellant for rendition of accounts, maintainability of the suit, bar of the suit by res judicata and estoppel and limitation. There was also an issue relating to the right of the respondent No. 2 to claim accounting. The learned Civil Judge came to the conclusion that the compromise decree in Suit No. 46 of 1956 was a family arrangement and as such it required registration under S. 17. He consequently held that the decree in Suit No. 46 of 1956 operated neither as res judicata nor as estoppel. The present suit was held to be maintainable. It was further held that the appellant was liable to render account to the plaintiff as well as to the respondent No. 2. On the question of limitation it was held that the suit was within limitation under Art. 116 of the Indian Limitation Act 1908 which provided six years limitation and since the suit was brought within six years of the compromise decree passed in Suit No. 46 of 1956 it was within limitation. The lower appellate court held that the compromise decree in Suit No. 46 of 1956 affected the rights of the parties from that date and it did not mean that plaintiff or defendant No. 2 had no interest in the property before that decree. It was, therefore, held by the lower appellate court that the appellant was liable to render the accounts for the period of Mukhtar- nama Aam from the date of its execution, that is, 5-1-1948 to 26-2-1960 the date on which the decree in Suit No. 46 of 1956 was passed. The lower appellate court also agreed with the view of the trial court that Art. 116 of the Indian Lim. Act 1908 applied and the suit was, therefore, held to be within time. Excepting for this slight modification in the decree of the trial court, the decree of the trial court was upheld.
(3.) THE two questions that have been agitated at the Bar in this appeal are whether the compromise decree in Suit No. 46 of 1956 operated as res judicata or estoppel against the respondents and whether the suit was barred by limitation. THE trial court was not right in taking the view that the compromise decree could not be taken into account for want of registration. He did not care to ready the provisions of S. 17 (2) of the Indian Registration Act. Section 17 (1) of the Indian Registration Act deals with registration of the documents which compulsorily require registration. Among other documents Section 17 (1) (b) of the Indian Registration Act requires compulsory registration of non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immoveable property; and its Cl. (c) requires compulsory registration of non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest. Sub-clause (vi) of sub-sec. (2) of S. 17 of the Indian Registration Act applies to any decree or order of a Court except a decree or order expressed to be made on a compromise and compromising immoveable property other than that which is the subject-matter of the suit or proceeding. This means that any decree or order of a court affecting the rights mentioned in S. 17 (1) (b) and (c) would not require registration. It will, however, require a registration where the decree or order on the basis of compromise affects the immoveable property other than that which is the subject-matter of the suit. It is not the case of any of the parties that the decree passed in Suit No. 46 of 1956 affected the immoveable property other than that which was the subject-matter of that suit. Thus the compromise decree did not require registration. In order to appreciate whether the decree passed in Suit No. 46 of 1956 operated as res judicata or estoppel we will have to look into the basis of Suit No. 46 of 1956. That suit was filed by respondent No. 2 Kesheo Chandra impleading the present appellant, plaintiff-respondent, Smt. Jamuna Kunwari and the appellant' s son Vinai Kumar. In that suit it was claimed that after the death of Sri Kekai Nandan Sahai in 1947 the family continued as joint family of which Gokul Chandra appellant of this appeal was the Karta Khandan and was in possession of the properties belonging to the joint family. Kesheo Chandra respondent No. 3 of this appeal and Jagdish Chandra, plaintiff-respondent No. 1 had also executed a Mukhtar-i-nama Aam on 5-1-1948 in favour of the appellant of this appeal who was defendant No. 1 in that suit. It was also alleged that the appellant of this appeal was refusing for the accounting of income and profits from the properties. The suit was, therefore, brought for the partition, of the property and for accounting of income and profits misappropriated by the present appellant. The properties which were the subject-matter of that suit are also the same. Smt. Jamuna Kunwari had filed the written statement, the copy of which is Ex A-3 on the record. She had claimed that, barring one house which was ancestral of Kekai Nandan Sahai, rest of them were owned by her and were her ancestral properties. It was also claimed that the gift deed obtained by the respondents of this case from her was fictitious and was obtained by fraud.;