1. This is a plaintiff's appeal arising out of a suit for recovery of possession which on account of the importance of the question of law involved in the case has been referred to a Full Bench. Rambaran was the last male owner of 7.295 acres of land which he held at the time of his death. On his death his mother Mt. Sartaji succeeded to the property as a Hindu mother and was entitled to remain in possession of the property for her lifetime and could have made a transfer of it only for legal necessity. On the 14th April 1928 she executed a deed of gift of the entire lands in favour of her daughter's son Mahabir, defendant 1. The Court below has found that Mahabir entered into possession of the property; but it appears that mutation of names was not effected in the lifetime of Mt. Sartaji. She died in October 1931 and an application for mutation of names was made by Mahabir who was the applicant, which was resisted by the present appellant Mt. Mahadei Kunwar as the objector. Mahadei Kunwar is sister of Rambaran. On the 1st February 1932 a document Ex. A was filed in the revenue Court which was signed by Mahabir and bore the thumb impression of Mt. Mahadei Kunwar. It was in the form of an application addressed to the Court, in which it was prayed that the name of the applicant Mahabir should be recorded in the revenue paper against 5.473 acres out of 7.295 acres, and that the name of the objector should be recorded against 1.822 acres. The compromise further stated that the objector would remain in possession of her property without any power of transfer during her lifetime and that after her death the applicant would be the owner in possession of that property. There was a further provision that the applicant would discharge certain debts of the deceased. The application contained the final prayer that the mutation case should be decided in accordance with the said compromise. The petition of compromise was not registered but was acted upon by the Court, which ordered mutation accordingly.
2. The present suit was instituted somewhat promptly on the 3rd September 1932 by Mt. Mahadei Kunwar on the ground that the said compromise had been obtained by fraud and that for want of registration it was not binding upon her. The first Court decreed her suit, but on appeal the learned Judge has reversed that decree. There is a finding that she failed to prove the fraud alleged by her and there is a further finding that she had understood the compromise and that she had executed it independently and there is also a finding that inasmuch as Mahabir had undertaken to discharge certain debts of Rambaran the compromise was for consideration and was not unfair. There is however a finding that defendant 2 is not a bona fide transferee for value, as he must have come to know of the compromise, although he paid consideration for his transfer from Mahabir under a deed dated 7th May 1932. Prior to the amendment of the Transfer of Property Act the question of the validity of a family settlement evidenced by an unregistered document was considered by a Full Bench of this Court in Ram Gopal v. Tulshi Ram : AIR1928All641 . In that case it was held that a family settlement could be arrived at orally without any registered document, but that if the arrangement be reduced to writing, then registration was necessary under Section 17, Registration Act, although the transaction did not amount to a transfer of property. In this connexion the observations made by their Lordships of the Privy Council in several cases were quoted and relied upon. In Trigge v. Lavalle (1863) 15 Moore P.C. 271 at p. 292 it was observed that:
A compromise is an agreement to put an end to disputes and to terminate or avoid litigation, and in such cases, the consideration which each party received is the settlement of the dispute ; the real consideration is not the sacrifice of a right but the abandonment of a claim.
3. In Rani Mewa Kunwar v. Rani Hulas Kunwar (1873) 1 I.A. 157, their Lordships observed:
The compromise is based on the assumption that there was an antecedent title of some kind in the parties and the agreement acknowledges and defines what that title is.
4. In Khunni Lal v. Gobind Krishna (1911) 33 All. 356 at p. 367 their Lordships remarked that they had no hesitation in adopting the view of this High Court as expressed in Lalla Oudh Beharee Lall v. Mewa Koonwar (1863) 3 Agra H.C.R. 82. Their Lordships then proceeded to point out that in the case before their Lordships, Khairati Lal
acquired no right from the daughters of Daulat for the compromise, to use their Lordships' language in Rani Mewa Kunwar v. Rani Hulas Kunwar (1873) 1 I.A. 157, is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledges and defines what that title is.
5. In Hiran Bibi v. Sohan Bibi A.I.R. 1914 P.C. 44 corresponding to 24 I.C. 309 their Lordships again observed:
A compromise of this character is in no sense of the word an alienation by a limited owner of the family property but is a family settlement in which each party takes a share of the family property by virtue of the independent title which is, to that extent and by way of compromise, admitted by the other parties.
6. On the strength of these authorities the Full Bench held that the pronouncements of their Lordships of the Privy Council were sufficiently clear to put it beyond doubt that in the usual type of family arrangement there is no question of any property (the admitted title to which rests in one of the parties) being transferred to one of the other parties, and there is no transfer of ownership such as is necessary to bring the transaction within the definition of 'exchange' in Section 118, T.P. Act. Of course, there may be a family settlement in which there is some transfer of property as well, along with the settlement of the dispute, which to the extent of such transfer would stand on a different footing. In the present case the application did not give any indication that Mt. Mahadei Kunwar was conveying any property to Mahabir. It really embodied the agreement between the parties in which the title of the other was acknowledged and recognized and it was prayed that effect be given to such recognition of title. Section 53-A was added by the Transfer of Property Amendment Act 20 of 1929, and would certainly apply to the present transaction which took place in 1932. But Section 53(A) applies where any person contracts to transfer for consideration any immoveable property by writing signed by him, etc.
7. The main question is whether it can be said that the family settlement with which we have to deal in this case was a contract to transfer immoveable property. Section 5 defines 'transfer of property' for the purposes of the following sections of the same chapter which includes Section 53-A as an act by which a living person conveys property, in present or in future to one or more other living persons, or to himself, and one or more other living persons.
8. On the authority of the Full Bench referred to above the family settlement in this case could not be regarded as either a transfer of property or even a contract to transfer immoveable property. It was merely an acknowledgment of the right of the other party. Howsoever unfortunate the result may be it is very difficult to apply Section 53-A to such a case. Had there been any transfer of property or contract to transfer for consideration any immoveable property involved in the case, Section 53-A would have applied. But it does not apply to the case before us. Thus, the defect of the want of registration held to be fatal by the Full Bench cannot be cured by the provisions of Section 53-A. It is to be noted that along with giving to the amendment of the Transfer of Property Act a retrospective effect by the addition of Section 53-A, the Legislature has also amended Section 39, Registration Act, and has expressly provided inter alia that:
An unregistered document affecting immoveable property and required by the Registration Act or the Transfer of Property Act, 1882, to be registered may be received...as evidence of part performance of a contract for purposes of Section 53-A, T.P. Act of 1882, etc.
9. Thus, had the case fallen under Section 53-A, there would no longer have been any defect. It follows that in oases to which the doctrine of part performance applies the non-registration of the document would be no bar to the applicability of Section 53-A or its admissibility in evidence. We accordingly allow this appeal and setting aside the decree of the lower appellate Court restore that of the first Court with costs in all Courts.