JUDGMENT
Kanhaiya Lal, J.
1. The dispute in this appeal relates to some landed property and the main question for consideration is whether a certain compromise filed by the parties to the present suit in a mutation proceeding operates as a bar to the present claim.
2. The allegation of the plaintiffs was that Gajadhar Pande was the owner of the said property and that, on his death, which took place in Baisakh 1328, the plaintiffs alone were entitled to the estate. In the mutation proceeding which ensued on the death of Gajadhar Pande a petition of compromise was filed by the parties, were by each branch of the family to which Gajadhar Pande belonged, was allowed to remain in possession of a one-fourth share. The plaintiffs contended that the compromise was invalid and that it had been repudiated and cancelled by the parties themselves. The defendants, on the other hand, asserted that they were living jointly with Gajadhar Pande, and that they were entitled to the entire property left by him to the exclusion of the plaintiffs. In the alternative they pleaded that all the disputes between the parties in respect of the property in question had been settled by a compromise in the mutation case and that compromise amounted to a family settlement and was binding upon the parties.
3. The trial Court found that the compromise operated as a family settlement and was binding on the parties. It did not determine the other allegations made in the suit except in so far that it observed that the claim of the plaintiffs was based on untrue allegations and in the teeth of the terms of the compromise was not maintainable.
4. On appeal the lower appellate Court directed the trial Court to determine whether Gajadhar Pande was at the time of his death separate from the parties. The finding of the trial Court on that point was that he was separate. The correctness of that finding was contested by the defendants before the lower Appellate Court, but the lower appellate Court confining itself to the determination of the question whether the compromise was binding on the parties as a family settlement of doubtful claims, held that it was intended to settle disputed claims and to prevent future litigation, and that the petition embodying it, which was filed in the revenue Court, was really an acknowledgment by the parties to it of pre-existing rights. It held accordingly that it was binding on the parties.
5. It is argued here on behalf of the plaintiffs that the petition of Compromise could not operate as a family settlement for want of registration and that in any case it was confined to only one of the villages and that the right claimed by the plaintiffs to the other villages ought to have been determined. As pointed oat in Baldeo Singh v. Udal Singh A.I.R. 1921 All. 248, it is open to the parties to a mutation proceeding to settle any dispute pending between them and to intimate to the Court before which the mutation proceeding is pending the manner in which they have settled their disputes. The petition of compromise filed in this case stated that a compromise had been arrived at between the parties in a certain manner and it proceeded to recite the terms in which the settlement had been arrived at. It stated that of the property left by Gajadhar Pande, a one-fourth share shall remain in occupation of the branch of the family represented by Nand Prasad Pande and Kishun Prasad Pande, and that the other three branches represented by Sheobaran Pande, Raja Ram and Deota Prasad Pande, shall each remain in possession and occupation of a one-fourth share each.
6. It further stated in regard to a certain mortgage made by Gajadhar Pande that the branch represented by Nand Prasad Pande and Gajadhar Prasad Pande shall pay to Deota Prasad Pande and Sheobaran Pande Rs. 100 on account of the mortgage money, and that till such amount was paid Deota Prasad Pande and Sheobaran Pande shall remain in possession as before. It also mentioned that certain other properties specified therein shall remain in the possession of each branch to the extent of a one-fourth share each, subject to the aforesaid conditions, and it asked that the entries in the revenue papers should be made in accordance therewith. The petition virtually recited the compromise and prayed that mutation of names should be effected in respect of the disputed property in accordance with the petition of compromise. Beyond reciting the settlement arrived at between the parties, it did not by itself create, declare or extinguish any right. It settled the disputes about certain doubtful rights which one party claimed to the exclusion of the other.
7. A document merely acknowledging antecedent rights, till then in dispute, is not a document which falls within the purview of Section 17 of the Registration Act, and as laid down in Bakhtawar Singh v. Sundar Lal A.I.R. 1926 All. 173, a petition stating the manner in which the parties had composed their differences and asking that mutation of names be effected in a particular manner, does not require registration. As a petition it was properly stamped in the manner required by the Court Fees Act and the compromise is, therefore, valid and binding on the parties thereto.
8. It is argued on behalf of the defendants-appellants that Raja Ram Panda had been absent from the village from long time and was not a party to the family settlement aforesaid. But even if Raja Ram Pande was missing and not heard of from before the date of the settlement, the persons who were parties to that settlement were bound by it. It might possibly have been open to Raja Ram Pande, if he was not a party to the settlement to come afterwards and say that he was not bound by it. But he has never turned up. The settlement allowed him a one-fourth share. His wife Mt. Jichcha Pandain is a party to the appeal and she has not come forward to attack or impugn this compromise.
9. The lower appellate Court points out that mutation of names was effected in accordance with the petition of compromise, and the presumption is that possession must have followed in accordance with it. Where a compromise has been acted upon as it appears to have been acted upon in this case, by the entry of names in accordance with it in the revenue papers, it is not open to either party to resile from it, for, as a family settlement, it is binding on them.
10. The petition of compromise deals in general terms with the entire property (matruka) left by Gajadhar Pande deceased and as the villages claimed by the plaintiffs are said to be villages belonging to Gajadhar Pande, they are covered by this compromise. If any of these villages did not belong to Gajadhar Pande, as the defendants suggested the plaintiffs had no cause of action with regard to them because they are only claiming the estate of Gajadhar Pande in the plaint. The appeal ought, therefore, to fail and the claim of the plaintiffs has been rightly dismissed.
Ashworth, J.
11. I am unable to concur with the view that what is called a compromise, Ex. C., was admissible in evidence without registration. There is no doubt that some support for this view may be found in certain passages in the decision reported as Baldeo Singh v. Udal Singh A.I.R. 1921 All. 248 and Bakhtawar Singh v. Sundar Lal A.I.R. 1926 All. 173. But for the purpose of applying Section 17 of the Registration Act each particular document must be considered on the merits. For the purpose of deciding whether a document of the character of Ex. C in this case is one that requires registration under Section 17 of the Registration Act, it is necessary to consider the purpose of the parties to the document as indicated by the language of the document. It is doubtless correct to say that a document which merely refers to some previous agreement between parties does not necessarily require registration. What is important is the purpose for which that reference is made to the previous agreement. If it is made for any other purpose than that of declaring a right, title or interest, then it will not require registration. But where the purpose of a document in mentioning some agreement is to define the agreement and to show that the parties intend that agreement thus defined to be acted upon, then the document must be held to be one declaring a right, title or interest within the meaning of Section 17 of the Registration Act. To hold otherwise would be to deprive the word “declare” in Section 17(1)(b) of any meaning.
12. There have been cases in which there has been an agreement which has been acted on in part or whole. In such cases the doctrine of part performance may operate, and the agreement, so far as it can be ascertained by the evidence on the record, may be declared by a Court and put into force, irrespective of any document declaring it. These cases of part performance have nothing to do with the case like the present. In the present case it is not pretended that there was any part performance intervening between the agreement and the date when this document was drawn up.
13. It is urged that subsequent to the document, compromise C being drawn up the revenue Court acted upon the agreement. If the fact of the revenue Court having acted upon the agreement were sufficient proof of the agreement it would not be necessary to put this document Ex. C in evidence. I would hold, however, that any action of the mutation Court is no evidence of part performance, because that action was based on the admission of this compromise as evidence, and I hold that admission was wrong because the document had not been registered.
14. In the decision relied on by my learned brother it appears to be thought that if an agreement is made, then any document declaring that it has been made, is not a document declaring a right or title to exist. Now words may speak and acts may speak, but mere intentions cannot speak. In a case like this to hold that the document, compromise C does not declare a right or title, is in effect saying that a mere intention, which can only be gathered by this particular document, is a fact in evidence independent of the particular document. This appears to me an impossible contention. That which is not proved must be held not to exist. “Non apparentibus eadem est ratio et non existentibus.” Apart from the logic of the case, it would make it impossible ever to require registration of deeds of declaration of title, if the defence were allowed that five minutes before the declaration was made, the parties had come to an oral agreement. As stated above, the purpose of the declaration must be looked to.
15. For the above reasons I hold that there was no admissible proof in this case of the family settlement and that the plaintiff’s suit should have been decreed upon the finding.
16. Under Section 98 of the Civil P.C., the appeal will stand dismissed with costs including fees in this Court on the higher scale.
