Fazl Ali, J.The main question to be decided in this appeal is whether the plaintiff can recover rent for more than three years prior to the institution of the suit. It appears that in the year 1918 the proprietor of the Jharia Raj Estate, instituted a suit against the defendant for recovery of khas possession of certain lands. The suit was compromised on 11th February 1920, and one of the terms embodied in the decree was as follows:

The plaintiff gives up his claim for khas possession which he made regarding the surface land of the disputed mauza, Fatehpur. The defendant will hold possession of the said lands in his purchase right. The defendant agrees to pay to the plaintiff the annual jama of Rs. 792 for 66 bighas in three plots specified in the schedule below. The defendant pays to the plaintiff Rs. 792, the rent for 1325 B.S. last and from the current year the defendant will pay the jama to the plaintiff every year in four equal instalments... As a security for the payment of the amount of rent and cess with interest due to the plaintiff the aforesaid land and the machineries, workshop and house, etc., there on shall always be treated as "first charge." So long as the amount of rent, etc., with interest due to the plaintiff will not be paid, the defendant will not be competent to transfer the same to anyone by sale or gift or remove the same.

2. The present suit was instituted on 14th April 1928, by the receiver of the Jharia Raj Estate to recover the arrears of rent for the years 1327 to 1334 at the rate of Rs. 792 per year as provide for in the petition of compromise which was embodied in the decree. The defendant resisted the suit on various grounds, but his main ground of attack is stated in para. 9 of the written statement which runs as follows:

That defendant further submits that on account of the nonregistration the decree in suit No. 718 of 1918 is not admissible in evidence and the plaintiff cannot claim any rent from this defendant under the said decree.

3. At the trial it appears to have been admitted by the defendant that he was liable to pay rent for three years before the institution of the suit and so the Subordinate Judge decreed the plaintiffs claim in part. He held however that the compromise decree relied on by the plaintiff was not admissible in evidence for want of registration and so the plaintiffs claim for arrears prior to three years before the suit was barred by limitation.

4. The plaintiff has now appealed to this Court and the points urged on his behalf are: (1) that the learned Subordinate Judge was wrong in holding that the compromise decree required registration, and (2) that at least the latter part of the decree which provides that the rent will be treated as a first charge on the land and machineries, etc., does not require registration and that in view of this clause it should have been held that the period of limitation in this case was 12 and not 3 years.

5. The first question therefore to be considered is whether the compromise decree was inadmissible in evidence for want of registration. The answer to this question depends not only on the proper construction of Section 17, Registration Act, but also on the construction of the decree itself so as to determine whether it operates to create a lease or not. I think there can be no doubt that the decree did create a lease because the terms recited there in virtually amount to a settlement of 66 bighas of land with the defendant in lieu of a future recurring annual payment.

6. Turning now to Section 17 it may be noticed that it is divided into two Sub-sections, the first enumerating the classes of documents which are required to be registered and the second providing that the rule as to compulsory registration would not apply to certain documents which, but for the proviso might fall under Sub-section 1. Under sub-Section 1 there are five classes of documents which are mentioned under Clauses (a) to (e) respectively of which Clause (a) relates to instruments relating to gift of immovable property and C1ause. (d) relates to a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent. So far as this Sub-section is concerned, its language is plain and can give rise to no serious difficulty. Considerable difficulty however has arisen in interpreting Sub-section (2) read with Clause (vi) which may be read as follows:

Nothing in Clauses (b) and (c), Sub-section 1 applies to any decree or order of a Court.

7. One of the difficult questions which arose in relation to this provision was as to how far it would apply to a decree which incorporates matters which are outside the scope of the suit. The argument which used to be advanced in this connexion was substantially this: that the Court is under no obligation to record a compromise and pass a decree with regard to matters which are extraneous to the suit, and if such matters are embodied in the decree, the decree to that extent is without jurisdiction and is not protected by Sub-section (2). Clause (vi): see Gurdeo Singh, v. Chandrika Singh [1909] 36 Cal. 193. It has however been held by the Privy Council in Pranal Anni v. Laxmi Anni [1899] 22 Mad. 508 and Hemanta Kumari Debi v. Midnapur Zamindari Co., Ltd. AIR 1919 P.C. 79, that even if the compromise goes beyond the property in suit, it will not, if embodied in the decree, require registration, and the term "decree" as used in Clause (vi) ought to receive a liberal construction. Thus the effect of these decisions and a number of other decisions is. that so far as the compromise decree relates to properties within the scope of the suit, it operates as res judicata, but so far as it relates to properties outside the scope of the suit such a decree, if the terms of the compromise are embodied in the decree, is evidence of the term embodied therein. In either case it is not necessary to register such a compromise petition or the decree.

8. The second difficulty in construing Sub-section. (2), Section 17, Clause (vi), arises in consequence of the fact that it refers only to Clauses (b) and (c) and not to Clauses (a), (d) and (e). Ordinarily construed this clause would mean that a decree or an order of a Court embodying the terms of an instrument coming u/s 17, C1auses (b) and (c), is exempted from registration, but if it embodies the terms of an instrument which comes, for example, under Clauses (a) or (d), that is to say, if it amounts to a gift or a lease, it will not be exempted from registration. In some cases however it was actually suggested if not decided that even if a decree purports to create a lease it would be admissible in evidence though not registered. Whatever doubts and difficulties may have surrounded the interpretation of the Sub-section before have been set at rest now by the decision of the Judicial Committee in Hemanta Kumari Debi v. Midnapur Zamindari Co., Ltd. AIR 1919 P.C. 79, and a number of other decisions which have followed it. In Hemanta Kumari Debis case AIR 1919 P.C. 79 the parties to the suit having compromised it presented a petition to the Court in which one of the terms was that Hemanta. Kumar (the plaintiff in that suit) had agreed that if she succeeded in another suit which she had brought to recover certain land other than that to which the compromised suit related she would grant to Watson & Co., a lease of that land upon specified terms, and prayed for a decree in terms of the compromise. A decree was there upon passed by the Court and the petition was recited in full in the decree. Hemanta Kumari succeeded in the suit which she had brought to recover the other land, but she refused to grant a lease of the land to the assignees of Watson & Co. The latter therefore brought a suit against Hemanta Kumari for specific performance of the agreement of the lease comprised in the petition of compromise and incorporated in the consent decree. The High Court of Calcutta decreed specific performance. One of the questions which arose before the Judicial Committee was whether the petition of compromise which contained the agreement of which specific performance was sought required registration. Lord Buckmaster, in delivering the judgment of the Judicial Committee on this point observed as follows:

If the document in question can be regarded as a lease within the meaning of this definition, it could not be received in evidence. Their Lordships are of opinion that it cannot be so regarded. An agreement for a lease which a lease is by the statute declared to include, must in their Lordships opinion be a document which effects an actual demise and operates as a lease....The present agreement is an agreement that upon the happening of a contingent event at a date which was indeterminate and, having regard to the slow progress of Indian litigation, might be far distant, a lease would be granted. Until the happening of that event it was impossible to determine whether there would be any lease or not. Such an agreement does not, in their Lordships opinion, satisfy the meaning of the phrase "agreement for a lease." So far therefore as this decision depends upon the need for registration of the document as a lease, the Registration Act, places no obstacle in the respondents way. By Section 17(1)(b) however it is also provided that other nontestamentary instruments which purport or operate to create, whether in present or in future any right, title or interest vested or contingent, of the value of Rs. 100 and upwards to or in immovable property, need registration. But this is subject to the exception provided in Sub-section (2), Section 17 which states that nothing in C1auses (b) and (c), Sub-section (1) applies to among other things any decree or order of a Court. If therefore the decree in the present case can be regarded as a decree within the meaning of that exception, there is nothing in the Registration Act to affect the matter.

9. Now, this reasoning plainly suggests that all decrees and orders are not excluded from compulsory registration, but only those are excluded which partake of the character of the documents mentioned in Clauses (b) and (c), Sub-section (1), and if the content decree operated to create a lease, it would, in their Lordships opinion, have required registration. This is exactly how this decision was construed by the Calcutta High Court in Rajani Kanta Banerjee and Others Vs. Raj Kumari Dasi and Another, . In that case Rankin, C.J., who delivered the judgment, Mitter, J. agreeing, dealt with the question as follows:

The first question therefore is whether the solenama requires any registration as being a lease. There can be no doubt that the intention of it was to operate as the grant of a tenancy to take effect at once, and in my judgment there is no escape from the conclusion that it was a lease. That being so, there is no escape from the further conclusion that it is not exempt as being an order or a decree of the Court, from the requirement of registration, because that requirement is only forgone on the face of Section 17, Registration Act, in cases coming within Clauses (b) and (c), Sub-section (1), Section 17. This was clearly held by the Privy Council in the judgment delivered by Lord Buckmaster in the case of Hemanta Kumari Debi v. Midnapur Zamindari Co., Ltd. AIR 1919 P.C. 79.

10. In Sarat Chandra Das alias Sachidananda Das Vs. Sm. Sarajini Rudraja, , another Division Bench of the Calcutta High Court held that the question was

now concluded by the ruling of their Lordships in Hemanta Kumaris case AIR 1919 P.C. 79.

11. The same view has been held by the Calcutta High Court in several other cases: see Nazar Ali Vs. Indra Kumar Sutar and Others, , Janakinath Roy and Another Vs. Mohendra Narain Roy Chaudhury, and Sailesh Chandra Sarkar Vs. Bireswar Chatterjee, . The Lahore High Court has also recently held it Attar Chand v. Chand Lal AIR 1929 Lah. 291, that Clause (b), Sub-section (2), Section 17 is not applicable to a lease. Again in Charu Chandra Mitter v. Sambhu Nath Pande [918] 3 Pat. L.J. 255, a case decided by a Pull Bench of this Court, Atkinson, J., after referring to the decision of the Judicial Committee in Bindesri Naik v. Ganga Saran Sahu [898] 20 All. 171, to which I shall also have to refer presently said:

I am aware that a more extended interpretation has been given to this decision by the learned Judges who decided the case of NatesaChetti v. Vengu Nachiar 33 Mad. 102 . So wide is the interpretation which their Lordships attributedin that case to the decision of the Privy Council in Bindesri Naik v. Ganga Saran Saha 20 All. 171,that practically it would apply so as to cover the case of the grant of a lease as a matter of compromise in a judicial proceeding in a pending litigation which would apparently be within the provisions of Clause (d), Section 17, Registration Act. We wish to be clearly understood for the purposes of our decision in this case that we do not consider that the decision of their Lordships of the Privy Council is wide enough to cover the case of a document constituting a lease arising out of the compromise in a judicial proceeding within the provisions of Clause (d),Sub-section (1), Section 17, Registration Act. We think it applies to documents coming within the class of documents contemplated in Clauses (b) and (c) which are protected under the provisions of Clause (6), Sub-section (2), Section 17, Registration Act, from registration.

12. This view also seems to have been accepted in another decision of this Court: see Rampadarath Singh v. Sohrai Koeri [1919] 4 Pat. L.J. 667. It appears to me therefore that it is now too late to contend that a decree even though it operates to create a lease, does not require registration u/s 17, Registration Act. It is true that the provisions requiring a decree to be registered seem to be not so very necessary, because the same results which are intended to be secured by the registration of a document may also be secured by the document being embodied as a part of a decree. But the language of Section 17 as well as Section 29-A, Registration Act, shows that the framers of the Act did not intend to exclude decrees from registration and this is also clear from the amendment recently made in the Registration Act, after the decision in Hemanta Kumaris case AIR 1919 P.C. 79 by inserting the following words in Clause (6), Sub-section (2):

except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of a suit or proceeding.

13. Mr. P. R. Das however appearing for the appellant does not concede that the view to which I have referred is based on a correct reading of Section 17 and he relies on the decisions in Bindesri Naih v. Ganga Saran Sahu [898] 20 All. 171, Natesa Chetti v. Vengu Nachiar [1910] 33 Mad. 102, Arnbica Charan Sher Kuibatra v. Srinath Datta 19 Ind.Cas. 551, Hemanta Kumari Debt v. Midnapur Zamindari Co., Ltd. AIR 1919 P.C. 79 and Charu Chandra Mitra v. Sambhu Nath Pandey [918] 3 Pat. L.J. 255. The last two cases, as I have already shown far from favouring Mr. Dass contention negative the view which he is trying to support; but the other three cases may be briefly dealt with. In Bindesri Naik v. Ganga Saran Sahu [898] 20 All. 171 the dispute between the parties was whether the plaintiff was entitled to recover interest on a secured loan after the date fixed for payment in the instrument of mortgage. The High Court held that by reason of various petitions of adjournment in which both parties had joined, the defendant had admitted the liability to pay post diem interest. The defendant however contended throughout that the petitions could not be relied on by the plaintiff as they were not registered in accordance with the provisions of the Registration Act. The Privy Council came to the conclusion on the construction of the mortgage deed itself that the interest was payable but they also added:

Though in the view which their Lordships take, the question whether those proceedings can be founded on without their having been registered in terms of the Registration Act, does not necessarily arise in this appeal, they think it right to add that having heard counsel fully upon the point they are satisfied that the provisions of Section 17 of the Act, did not apply to proper judicial proceedings whether consisting of pleadings filed by the parties or of orders made by the Court.

14. These observations have been explained in several cases including the Full Bench decision of this Court to which I have already referred and it is clear that as none of the documents relied on in the case with which their Lordships had to deal fell under Clause (a), (d) or (e), Sub-section (1), Section 17, their Lordships had no occasion to make a pronouncement as to what the effect would have been, if any of these documents fell under any of the clauses which have not been specifically mentioned in Section 17, Sub-section (2). As to the case of Natesa Ghetti v. Vengu Nachiar [1910] 33 Mad. 102 I have already referred to the remarks of Atkinson, J., in Charu Chandra Mitras case [918] 3 Pat. L.J. 255 that it attributes too wide an interpretation to the decision of the Privy Council in Bindesri Naik v. Ganga Saran Sahu [898] 20 All. 171 and I take it that if it was meant to be laid down in that case that a decree, even though it purports to create a lease need not be registered, that view did not find favour with the Full Bench of this Court. The view that was put forward in that ease was that Sub-section (2) is in the nature of a proviso and:

that provisos are often inserted unnecessarily excepting cases which could not otherwise fall within the enactment for the purpose of removing apprehensions and so cases which are otherwise clearly outside the scope of an enactment cannot be brought within it by any inference founded on the terms of the proviso.

15. I would however say with great respect that this reasoning assumes that the exceptions referred to under Sub-section (2) would have been, even in the absence of that Sub-section, outside the scope of Section 17, Sub-section (1). Besides whatever observations were made by the learned Judges who decided that case as to the application of Section 17 to such compromise decrees as operate to create a lease may be taken to be in the nature of mere obiter dicta because their Lordships themselves while dealing with the compromise in that case said;

we are not clear that we are bound to construe the compromise as creating a new lease so as to give an opportunity for the objection.

16. In any event that decision can no longer be followed after the decision of Hemanta Kumaris case AIR 1919 P.C. 79.

17. The argument of Mr. P. R. Das which is to the effect that only C1auses. (b) and (c), Sub-section (1) were mentioned in Sub-section (2) because they are comprehensive enough to include the documents which came under the other clauses which were not mentioned including Clause (d) may also be met on the same reasoning and it may also be pointed out that if it was intended by the legislature to include in Sub-section (2) documents falling under C1auses (a), (d) and (e) also, it was hardly necessary to mention specifically Clauses (b) and (c) and omit the other clauses. In that case it would have been sufficient to say that:

hing in Sub-section (1) would apply to the classes of documents enumerated in Sub-section (2).

18. As regards the decision of Sir Lawrence Jenkins in Ambica Charan Sher Kaibarta v. Srinath Dutta 19 Ind.Cas. 551, it may be pointed out that it was based entirely on the decision in Natesa Chetti v. Vengu Nachiar 33 Mad. 102 and besides the facts of the case not being fully stated in the report, we do not know whether the particular document referred to in that case did come u/s 17, Sub-section (1) Clause (d), Registration Act. The suit was for recovery of rent and the plaintiffs case was that the pro forma defendant had created a kaimi maurosi interest in his favour. The pro forma defendant admitted this, but the contesting defendant contended that the document by which the kaimi interest was created, should have been registered. It was found that the compromise related to the suit and its subject-matter and it was held therefore that Section 17, Registration Act, afforded no answer to the plaintiffs claim. Besides, even assuming that it was laid down by implication in this case that if a lease is incorporated in the decree, it does not require registration, it cannot be regarded as an authority for the proposition after the decision of Hemanta Kumaris case AIR 1919 P.C. 79 and the other cases of the Calcutta High Court to which I have referred. It is true that this case was referred to with approval by Atkinson, J., in Charu Chandra Mitras case 3 Pat. L.J. 255, but I take it that it was referred to merely as supporting the proposition that even though the decree or order of the Court does not expressly incorporate verbatim the entire provisions of the compromise, it is within the protection provided by Clause (vi), Sub-section (2), Section 17, Registration Act. It was also referred to as one of the cases in which the decision in Gurdeo Singh v. Chandrika Singh [1909] 36 Cal. 193 was not followed.

19. I will now pass on to consider the next point raised by Mr. Das, that is to say, that at least the latter part of the decree, which provides that rent will be a charge on the land, should be admitted in evidence because this statement standing by itself does not constitute a lease or come within the mischief of Clause (d), Sub-section (1), Section 17, Registration Act. It is pointed out on behalf of the respondents that this is after all one of the important clauses of the lease and if the decree is inadmissible in evidence because it operates to create a lease, then none of the terms of the lease can be admitted in evidence. It appears to me that this argument substantially meets Mr. Dass contention. It is however urged by Mr. Das that an unregistered document which is required to be registered may be used in evidence for a collateral purpose and reliance is placed on Sarat Chandra Das alias Sachidananda Das Vs. Sm. Sarajini Rudraja, where a compromise decree was excluded on the ground that it ought to have been registered as a document incorporating the lease, but an admission made therein as to the amount of rent was used for the purpose of fixing the liability of the lessee. It is also urged by Mr. Das that the compromise having been acted upon, the terms of the compromise may be proved not by the document, but by the actings of the parties. Now, I am not prepared to hold that to use the document for the purpose of proving an important clause in the lease would be using it for a collateral purpose. As to the acting of the parties, although the fact as to what is the amount of the rent payable in this case might be legitimately proved by showing that such rent has actually been paid in the past by the defendant, I do not see any evidence of conduct or any act of the parties which would prove that the parties had actually made rent a charge on the property.

20. It appears to me therefore that the Subordinate Judge was right in holding that the terms of the compromise, even though embodied in the decree were, not admissible in evidence and that being so, the plaintiff is not entitled to recover more than three years rent or compensation for the occupation of the land which was admittedly in possession of the defendant. The appeal therefore fails and is dismissed with costs..

Macpherson, J.

21.I agree.