1. This is a plaintiff's appeal arising out of a suit for declaration of title and for recovery of possession of a fourth share in certain village property. The plaintiff Sheo Prasad along with his deceased brother's widow Musammat Mohan Kunwar executed a deed of gift in favour of the defendants and their brother on the 19th of January, 1915. Later on the donors brought a suit for the cancellation of that document. The suit was actually decreed by the first Court but on appeal to the High Court the suit was dismissed on the 14th of December, 1920. As the valuation was more than Rs. 10,000 and the decree of the first Court had been reversed an application for leave to appeal to their Lordships of the Privy Council was filed. That application was allowed and leave was granted. But apparently before the full security had been deposited and the appeal could be declared to have been admitted under Order XLV, Rule 8 a compromise duly signed by the parties was filed in this Court. It was sent down to the Court below for verification and report and was duly verified and returned On the 2nd of March, 1922, the High Court passed the following order 'The parties have compromised the case, the appeal is allowed to be withdrawn'. The compromise which had been filed dealt with the property which was the subject matter of the suit, but it was not registered, As the application for leave was withdrawn, the compromise, of course, could not be embodied in any decree of the Court. The plaintiff made an attempt to get his name entered in the revenue papers and succeeded before the Assistant Collector on the 17th of November, 1923. That order was, however, reversed by the Appellate Court on the 26th of February, 1924. Thereafter the plaintiff instituted the present suit on the 13th of July, 1925.
2. In the plaint he alleged that the parties had entered into a compromise by which it was decided that the plaintiff should get a one-fourth share of the entire property mentioned in the plaint as permanent owner, that the plaintiff made an application to the Revenue Court for mutation of names which was not granted on the ground that the plaintiff had not been in possession of that property, and that the plaintiff repeatedly asked the defendants to deliver possession to him over the property mentioned above, but they refused to do so. The date of the cause of action alleged in the plaint was the 2nd of March, 1922, when the application for leave to appeal was allowed to be withdrawn. The reliefs claimed were (a) a declaration that the plaintiff is the owner of the house, (b) a declaration of the plaintiff's right to one-fourth of the property mentioned in the compromise, coupled with dispossession of the defendants and restoration of the plaintiff's possession over the zemindari property, (c and d) mesne profits and (e) and other relief which may be beneficial to the plaintiff. The plaintiff did not expressly ask for the specific performance of any contract between the parties.
3. The defendants in a short written statement denied that there was any valid compromise and urged that the parties had rejected the said compromise. There was a legal plea that, the compromise being on an insufficiently stamped paper and unregistered, no decree could be passed on it. There was further a denial of the plaintiff's right to get mesne profits, and there was a plea of three years' limitation.
4. The learned Subordinate Judge has dismissed the suit, holding that the compromise required registration, and for want of registration it was inadmissible in evidence and did not confer title on the plaintiff. He has remarked that the plaintiff is in possession of the houses but not in possession of the zemindari property'. As regards the compromise he had recorded a finding 'For more than two years after the execution of the document called the compromise the plaintiff has been sitting idle with folded hands. It appears that the alleged compromise was not acted upon nor was intended to be acted upon by the parties'. We are unable to accept the finding of the Court below that 'the alleged compromise was not acted upon nor was it intended to be acted upon by the parties'. Nor was there any justification for remarking that for more than two years after the execution of the compromise the plaintiff remained idle. The Court below has entirely overlooked the attempts made by the plaintiff in the Revenue Court to get possession and the mutation of names in his favour. It was only after he failed in those proceedings that he instituted the present suit. The remark that he has been sitting idle all this time is startling.
5. That the compromise was filed in this Court and was sent down to the Court below for verification and was duly verified by the parties is an undisputed fact. That on the basis of this compromise the plaintiff and his co-plaintiff withdrew the application for leave to appeal to the Privy Council is also quite clear from the order of the High Court itself. That even after that the plaintiff wanted to adhere to that compromise, and took steps to get mutation of names in his favour has already been mentioned by us. In face of these circumstances it is not intelligible how the Court below has held that the compromise was 'not acted upon nor was it intended to be acted upon by the parties.' If the Court had said that the defendants resiled from it and refused to act upon it the remark would have been more accurate.
6. There is, no doubt, the fact that this compromise was not registered as it ought to have been registered. The explanation for this omission might perhaps be that it was overlooked at that time that such registration was necessary, it having been wrongly supposed that a compromise filed in the High Court would be embodied in a decree or order. That, of course, could not be done, as no decree was to be passed by the High Court at that stage.
7. We agree with the Court below that this compromise required registration.
8. The very language of the document as printed on page 13 shows that the contract between the parties was reduced to the form of that document. It was filed in Court with a request that it should be verified and that a decree should be prepared in accordance with it. The document was duly signed by the parties as a solemn document and their signatures were subsequently verified. It, therefore, seems to us that in view of the pronouncement of the Full Bench of this Court in the case of Ram Gopal v. Tulshi Ram : AIR1928All641 the document required registration. We need not necessarily hold that it amounted to a family settlement; but even if it did, it also required registration on that authority. For want of registration this document is inadmissible as proof of the passing of title in the immoveable property. As a deed of title it is worthless. It may, however, be used for the collateral purpose of showing a mere contract to give the property in consideration of the appellant's agreeing to withdraw the application for leave to appeal, and as showing an admission of the defendants that they had entered into such a contract. The learned Advocate for the plaintiff has argued before us that inasmuch as the position of the plaintiff has been compromised and he has lost his opportunity to appeal to their Lordships of the Privy Council the defendants are estopped from pleading that no valid compromise was arrived at between the parties, and that no title passed. We are of opinion that we cannot hold that this compromise is valid and that on the basis of it the plaintiff can claim a decree for possession forthwith. Such a procedure would be tantamount to recognising the invalid compromise as validly conferring title and admitting it in evidence when for want of registration it is not admissible under Section 49 of the Registration Act. The plaintiff cannot be allowed to evade the express provision of a statutory enactment and get relief on the basis of equitable consideration only.
9. The plaintiff's remedy undoubtedly was to take steps to get that compromise registered within the time allowed by law, and if he failed to get registration amicably to claim compulsory registration under Section 72 of the Registration Act. That, remedy he omitted to seek. Then he found that the defendants were going back upon their compromise he could have brought a suit for the specific performance of the contract within the time prescribed by the Limitation Act.
10. Fortunately for the plaintiff, the present suit was instituted within three years of the order passed by the High Court and consequently within three years of the date when the defendants refused to deliver possession of the property. The suit if properly framed as one for the specific performance of the contract would have been well within time. Most of the important statements of fact which would entitle the plaintiff to a decree for specific performance are set forth in the plaint. The express relief for specific performance, however, is missing. If the present suit is either dismissed or allowed to be withdrawn with liberty to bring a fresh suit, the plaintiff would be hopelessly out of time and no remedy to claim specific performance would be left to him. In view of these circumstances we have, after giving the case our best consideration, came to the conclusion that this is a fit case in which we should allow the plaintiff to amend the plaint so as to include the relief for specific performance. Such an amendment would necessitate the giving of an opportunity to the defendants to take any additional pleas which they might like to raise. This may involve the framing of fresh issues for the determination of which the case will have to go back to the Court below.
11. We accordingly allow this appeal and setting aside the decree of the Court below send the case back under Order XLI, Rule 23 to that Court with directions to allow the plaintiff to amend his plaint so as to make it a claim for specific performance, but on condition of his paying the costs of both the Courts within a reasonable time to be fixed by the Court below. If the costs are not deposited within the time fixed the suit would be dismissed. If the costs are so deposited and the plaint amended, the defendants would have an opportunity to file a fresh written statement. The case will then be disposed of on any other additional issues that might arise on the pleadings. As it is possible that some new issues may arise we direct that the parties will be at liberty to adduce fresh evidence which they wish to tender on such issues.