Mohomad Hussain vs Korwar Earappa

This is a second appeal by the Defendant Muhammad Husain seeking the reversal of the appellate judgment and decree of the learned District Judge, Tandur, who upheld the judgment and decree of the Munsiff of Tandur decreeing the Respondent''s suit for declaration of title and injunction.

The learned pleader for the Appellant did not assail the judgment of the lower appellate court on merits. He confined his argument to the contention that the compromise decree Ex. 4 dated 11th Ardibihisht 1951 upon the terms of which the present suit was based, required registration and being unregistered was inadmissible in evidence and the suit liable to dismissal in limine.

In order to appreciate the contention urged a few material facts need be mentioned. It appears that the Appellant brought Suit No. 54 of 1356F., against the Respondent and two other persons in the Munsiff Court at Tandur for pre-emption of a piece of land measuring 330 square yards situate in Mehdi Gunj, Tandur. The dispute was compromised and a compromise petition Ex. 1 embodying the terms of compromise was filed in the court. By that compromise the disputed land was divided between the Appellant and the Respondent the former getting 209 and the latter 121 square yards. It was also inter alia agreed that the future partition wall running from north to south would be built by the parties to the extent of 22 yards, each party bearing the cost of construction equally and the wall so constructed would remain a common wall between the parties from the basement upto first storey, that if one of the parties had to construct the said wall at his own expense, he would be entitled to recover half the cost from the other Defendant party, that none would have a right to open any window, drain or ventilator in the common party wall and that if any of the parties desires to construct a second storey, he would be at liberty to do so subject to the condition that if the other pays half the cost of construction of the wall of the second storey, he will be entitled to its use without any objection on the part of the party constructing the wall. It was further provided that the Appellant would build the 5 1/2 yards of the wall running from the west to the east at his own expense and would not be entitled to open door, drain or window therein, albeit he would be at liberty to open ventilators at the height of three yards from the basement. In order to compensate the Appellant for the detriment resulting from the imposition of limitation upon the exercise of his right of ownership, the Respondent promised to pay to him a sum of Rs. 200/-.

It is argued on behalf of the Appellant that since the two walls which were intended to be constructed were not in existence at the time when the compromise was effected and a decree passed in accordance with its terms, it cannot be said that they formed part of the subject-matter of the suit and therefore the decree embodying the terms of compromise was compulsorily registrable inasmuch as the consideration for the construction of a common wall & for limiting the rights of the parties in the two walls was more than Rs. 100/-. No authority was quoted in support of this contention but a reference was made to us to Sub-section (2) of Section 10 of the Hyderabad Registration Act.

That clause provides:

Nothing in clauses (b) and (c) of Sub-section (1) applies to any decree or order of a court except a decree or order expressed to be made on. a compromise and comprising immovable property other than that which is subject-matter of the suit or proceeding.

We are not concerned with Clause (c) in this case. Clause (b) of Sub-section (1) provides:

Non-testamentary instruments other than instruments of gift, which purport or operate to create, declare assign, limit or extinguish whether in present or future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards to or immovable property shall be registered.

The question is whether an agreement to erect a common wall with certain conditions attached to it and the liberty to the Appellant to build a wall with certain limitations is tantamount to creation or limitation of an interest in future to or in immovable property. It has been held in Bhan Singh v. Thakur Das 89 Pun Re 1908 (A) that an agreement between certain person providing the manner in which certain property should be divided between them in the event of their succeeding in purchasing the same, was not an agreement falling u/s 17(1)(b), Indian Registration Act.

Following this authority and another Pull Bench case--''Imam Bakhsh v. Karim Shah 16 Pun Re 1895 (FB) (B), a Bench of the Lahore High Court held in--Ram Das v. Nadir Shah AIR 1919 Lah 60 (C), that the words "in future" in Section 17(1)(b) of the Registration Act relate to the preceding infinitives and not to the succeeding nouns and therefore, a right, title or interest whether vested or contingent must be a present one and not a future right, title or interest. It was on the reasoning laid down above that a document reciting that a certain contract had already been entered into and that in the event of certain happenings a certain future right would accrue does not fall within, the purview of Section 17(1)(b) of the Registration Act and does not require registration.

In the present case, the walls in dispute were not in existence at the time of the compromise and what was agreed was that in the event of walls coming into existence certain future rights and limitation would attach to them. Such an agreement according to the reasoning adopted in the afore-mentioned authorities which apply part passu to the facts of this case, would not require registration for being admissible in evidence.

No other point was pressed before us. The result is that the appeal fails and is hereby dismissed with costs.