JUDGMENT Rachhpal Singh, J.
1. This is a plaintiff's second appeal arising out of a suit to recover a sum of money by enforcement of a charge.
2. The facts which have given rise to this litigation between the parties can briefly be stated as follows: One Makhan Lal was the owner of extensive immovable property in the District of Aligarh. He had a sister whose son was one Shankar Lal. Chiranji Lal is the natural father of Shankar Lal. One Musammat Tijjo was the sister of Makhan Lal's wife and it appears that she lived in the house of Makhan Lal and looked after Shankar Lal during his minority. Makhan Lal died about the year 1924. On his death Shankar Lal, son of Chiranji Lal, under the guardianship of one Babu Lal, obtained possession over the estate left by deceased by Makhan Lal.
3. Shankar Lal died about the year 1926 and then dispute arose. Chiranji Lal, the natuaral father of Shankar Lal, claimed the properties of Makhan Lal as heir to his own son, Shankar Lal. His case was that Shankar Lal had been adopted by Makhan Lal and on Shankar Lal's death, he (Chiranji Lal) was entitled to the estate. The suit was resisted by some other persons. Eventually there was a compromise between the contending parties on February 1, 1927. Under the terms of this compromise major portion of the estate went to Chiranji Lal. It was agreed that Musammat Tijjo would occupy one residential house during her life-time and that she would further get a maintenance allowance of Rs. 10 monthly till her death. This allowance was made a charge over some immovable property which is specified in the plaint in this case.
4. The plaintiff Musammat Tijjo, came to Court to recover a sum of Rs. 670 on account of past arrears of maintenance allowance by the sale of the property which was charged in respect of this maintenance allowance.
5. Chiranji Lal, the defendant, contested the claim. The principal pleas taken by him were that as Musammat Tijjo was not a party to the compromise, she could not maintain a suit in respect of the amount alleged to be due to her and further that as the deed under which a charge is alleged to have been created was not registered, the charge was not enforcible. Another plea taken by Chiranji Lal was that the plaintiff had been occupying a room in another house belonging to his estate without payment of any rent and that she had let out the house reserved for her residence on a monthly rent of more than Rs. 10 and in view of these circumstances she was not entitled to relief.
6. The suit was dismissed by both the Courts and the plaintiff has come up in second appeal before this Court.
7. The first question for consideration in this case is whether the plaintiff is entitled to enforce the charge. The position is this. Chiranji Lal and some other persons were litigating about the estate which once belonged to Chiranji Lal's son, Shankar Lal. A compromise was arrived at under which they settled their differences, each getting a portion in the estate. There was a further agreement between the two under which the defendant undertook to pay a sum of money monthly to Musammat Tijjo. The terms of the compromise were incorporated in the decree which was eventually prepared in that case. The contention of the learned Counsel for the plaintiff-appellant is that this created a valid charge which could be enforced by her. On the other hand the contention of the learned Counsel appearing for the respondent is that as the deed of compromise was not registered, no valid charge was created. This is one of the questions for determination in this case.
8. It is true that Musammat Tijjo. was not a party to the suit in which the compromise was arrived at but that does not dispose of the point in issue. Under the provisions of Section 23, Clause Clause of the Specific Relief Act; in a case where a compromise of doubtful rights between members of same family is arrived at, any person beneficially entitled thereunder is entitled to sue for the specific performance of the contract. If the compromise created a valid charge, the plaintiff would certainly be entitled to institute a suit. The question, however, is whether the composition deed had the effect of creating a valid charge. Admittedly it was not a registered document. The law is that if a deed creating a charge is written then it must be registered; otherwise the charge could not be enforced. Learned Counsel for the plaintiff-appellant in this case however contends that as the terms of the compromise were incorporated in the decree, there was no necessity for registration of the compromise. After a consideration of the arguments addressed to me on both sides, I am of opinion that the contention of the learned Counsel for the defendant must be accepted on this point if the question about the validity of the compromise deed on the ground of want of registration had been between the parties to the compromise, then I would have had no hesitation in holding that registration was not necessary because the terms of the composition deed have been incorporated in the decree. In my opinion, however, different considerations prevail when a third party who was not a party to the suit comes to enforce that claim. It is obvious that the third party when he comes to enforce his claim is asking the Court to grant him a relief because of the terms of the composition deed and not because those terms have been incorporated in the decree. He was no party to the suit and therefore the fact that the terms of the composition deed were incorporated in the decree does not place him in any advantageous position. He can enforce a charge only if he is able to satisfy the "Court that it was made in accordance with law. As I have already pointed out, in this case the deed creating the charge was not registered and it appears to me that in these circumstances the plaintiff cannot ask the Court to enforce the agreement contained in her favour in a deed which should have been registered, but was not registered. I may point out that several cases have been cited before me on both sides but they do not help us in deciding the point in issue because in none of those cases the party seeking to enforce the charge happens to be a third party and who was not a party to the suit in which the compromise sought to be enforced was arrived at.
9. Another point which both the Courts below have taken against the plaintiff is this. Admittedly she is occupying a room in the upper story of a house belonging to the defendant. She has also let out the house which was reserved under the terms of the compromise for her during her lifetime to some other persons and she has been realising the rent from her tenants which comes to over Rs. 10. The lower Courts have therefore held that in these circumstances she is not entitled to recover the maintenance due. I find myself unable to agree with this contention. If the charge created is valid, the plaintiff would be entitled to recover the amount due regardless of the fact whether she has let out the house reserved for her to ten ants or whether she is occupying a room in another house with or without the permission of the defendant. On this ground her claim could not be resisted. If the defendant considers that Musammat Tijjo has lost her right to recover maintenance allowance because she has let out the house reserved for her residence, to tenants, then it is open to him to have this question settled by suing her. So long as the defendant does not establish that by letting out the house, the plaintiff has lost her right to recover maintenance, the claim will be enforced. If the defendant institutes a proper suit, the question as to whether the plaintiff for whose benefit a house has been reserved for her life is entitled to let it or on letting it he is deprived of the benefit of the charge created in her favour is one which has to be decided before disallowing the plaintiff's claim for maintenance. I am, therefore, of opinion that the plaintiff's claim for maintenance could not have been resisted on the grounds set up by the defendant.
10. Learned Counsel appearing for the plaintiff further contended that even if it be found that the compromise deed was not valid for want of registration, his client was entitled to claim maintenance for three years prior to the date of the suit. In my opinion, it is not necessary to decide this question in this case. The plaintiff's suit was for the enforcement of the charge by the sale of immovable property and she did not come to Court on the allegation the even if the Charge failed, she was entitled to a simple money decree.
11. One further point was argued by the learned Counsel appearing for the appellant. It was urged that on the ground of part performance, the plaintiff's claim should be decreed. I, however, do not think that that doctrine can be applied to a case like the one before me. The provisions of Section 53(a), do not apply to the case before me.
12. For the reasons given above, I dismiss the appeal with costs.