V. Balakrishna Eradi, J.@mdashThe appellant herein instituted the suit out of which this Second Appeal arises, for a declaration that the proceedings taken by her jointly along with the first defendant for recognition of an alleged assignment of the decree obtained by the appellant in O.S. 42/60 of the District Court, Kottayam against the third defendant, were the result of fraud and forgery and that the order passed by the executing court recognizing the said assignment of the decree was not binding on the appellant-plaintiff. She accordingly prayed for setting aside the said order and also for a permanent injunction restraining the first defendant and her advocate, the second defendant, from withdrawing from court certain amounts which were lying in deposit to the credit of the aforesaid decree. It was also contended as a ground for invalidating the assignment that the decree was one creating a charge over immovable properties exceeding Rs. 100/- in value and that no assignment of the said decree could be validly made except under a document duly registered under the Indian Registration Act. Reliance was placed in support of this proposition on Sections 17(1)(e) and Section 49 of the Indian Registration Act. The trial court found against the plaintiff on the merits of all her allegations of fact relating to the alleged practice of forgery and fraud and held that the assignment was not vitiated by any such invalidating circumstances. It however, upheld the contention of the plaintiff that the assignment was bad for want of registration u/s 17(1)(e) of the Indian Registration Act and that therefore, the first defendant had not validly acquired any rights whatever over the decree by virtue of the purported assignment. In this view, the trial court granted the plaintiff the declaration and injunction as prayed for by her. An objection raised by the defendant that the suit based on allegations of fraud was barred by limitation having been brought beyond the period of 3 years from the date of the order recognizing the assignment was rejected by the trial court. The first defendant filed an appeal against the aforesaid decision of the trial court. The plaintiff filed a memorandum of cross-objections objecting to the trial court''s finding that the assignment was not vitiated by fraud, forgery etc. The learned Additional District Judge confirmed the finding of the trial court that the plaintiff''s case of forgery and fraud was not true and that there were no such circumstances vitiating the assignment of the decree in favor of the first defendant. On the question relating to want of registration, the lower appellate court took the view that u/s 49 of the Indian Registration Act the assignment would be inadmissible for want of registration only to the extent to which it purported to deal with rights in immovable property and that even without a registered instrument there can be a valid conveyance of the portion of the decree entitling the plaintiff to recover personally from the defendants the amount decreed. In other words, in the view of the learned District Judge, while the assignment would not operate to convey any rights to the first defendant to enforce the charge declared by the decree it would be perfectly valid and effective in so far as it related to that portion of the decree providing for the recovery of the suit amount from the judgment-debtors personally. In this view, the lower appellate court held that the plaintiff was not entitled to the declaration or injunction prayed for by her and dismissed the suit.
2. The learned counsel for the appellant strenuously urged that the view taken by the lower appellate court regarding the effect of Section 17(1)(e) and section 49 of the Indian Registration Act is incorrect and untenable. It is contended that since the decree admittedly declares and creates a charge on immovable property exceeding Rs. 100/- in value, no rights over such decree can be validly transferred except under an instrument in writing duly registered. In support of this contention reliance was placed on the decisions reported in
3. The same is the position in regard to the decisions in
4. It is now well-established that if a document which purports to create or declare etc. rights in immovable property exceeding Rs. 100/- in value, deals also with other subjects not falling within the purview of Section 17 of the Indian Registration Act, while, u/s 49 of the Act, the document cannot be received in evidence of any transaction affecting such immovable property it is not inadmissible for the purpose of proving how the other subjects have been dealt with by it. The bar to the admissibility is only limited to the extent to which the document pertains to rights in immovable property. Applying these principles to the present case, the assignment of the decree would be valid and operative even without a registered document in so far as it relates to that portion of the decree conferring the right to proceed against the judgment debtors personally for recovery of the decree amount, while it would not certainly be valid to convey any rights over that portion of the decree creating a charge over immovable property and entitling the decree-holder to enforce such charge. That this is the correct position in law has been laid down by a Division Bench of the Madras High Court consisting of Rajamannar C.J. & Umamaheswaram J. in O.S.A. 162 of 1952-1954 M.W.N. - Short notes page 27 Since the judgment in that case was not fully reported a certified copy thereof was produced before the lower appellate court and it is available among the records sent up to this court. The learned Chief Justice has observed in the above case as follows
As to the objection based on the fact that the deed of assignment was not registered, learned counsel for the appellant submitted that the decree specifically provided for enforcement of the liability of the 1st defendant, both personally and by the enforcement of the charge and the omission to register the deed could only affect his right to the benefit of the charge declared by the decree, but would not affect his right to execute the decree personally. We agree with him, and Mr. Narasimha Ayyar, learned counsel for the respondent, has not been able to controvert this position. Indeed, it follows from the language of Section 49 of the Registration Act. We, therefore, hold that the deed of assignment, in so far as it purported to transfer the right to execute the decree personally against the first defendant does not require registration and therefore could be the basis of an application by the appellant to be brought on record as the assignee-decree-holder for a part of the decree amount.
I am in respectful agreement with the view so expressed by the learned Chief Justice and applying the aforesaid principle to the present case, it has to be held that the District Judge was quite correct in holding that the assignment in favor of the first defendant was valid so far as it related to the right to execute the decree personally against the judgment-debtor even though there was no registered instrument evidencing the assignment.
5. In this view, it becomes unnecessary for me to consider the point raised by the respondent in her memorandum of Cross Objections that the suit, based as it is on allegations of fraud, was barred by limitation having been brought beyond the period of 3 years from the date of the executing court''s order recognizing the assignment and I express no opinion on the merits of this contention. The Second Appeal fails and is accordingly dismissed with costs. No leave.
