1. This was a suit for the partition of the estate left by a Muhammadan named Ali Khan Khiladar who died in 1884. In 1896 defendant No. 3 sued for partition and obtained decree (Exs. I-IV). She did not execute the decree and one of the questions is whether she is competent to file a fresh partition suit. It is alleged that in spite of the previous decree there was an agreement between the co-sharers of the estate of Ali Khan (father of defendant No. 3) to continue to hold the properties as tenants-in-common without division. The District Munsif was satisfied that defendant No. 3 relied on 'some such agreement' at the time the issues were framed in 1916 and found the agreement proved, and that defendant No. 3 was entitled to a share. The District Judge confirmed this finding but a point of want of registration was taken before him and the District Judge found that parties could orally agree to remain as tenants-in-common. This is the first point taken before me in second appeal. The former decree was declaratory though final and I think the agreement must be regarded as a matter arising subsequent to the decree and as furnishing a new cause of action, thus distinguishing this case from a subsequent suit on the same mortgage. [Vedapurattiv. Vallabha Valia Raja ILR (1902) M 300. It is argued for the respondents that, if the agreement were only a transaction recognising a title already subsisting, registration is not required. In Ranganayaki Ammal v. Virupakshee Rao Naidu : (1923)45MLJ100 Courts Trotter, J. quotes West, J. in Sakharam Krishnaji v. Madan Krishnaji ILR (1881) B 232: 'What requires registration is some document which brings about a definite change of legal relation to the property by an expression of will embodied in the document referred to.' So with regard to the word 'declare,' the learned Judge conceives it to mean a declaration of will not a mere statement of fact., I take the question of the fact of the agreement to be proved and I also take it that what is found to have really happened was that the parties simply agreed to go on as, before they had been co-owners before the declaratory decree ; they agreed to ignore that and they continued to live as they had lived for years together, each having title to a definite but undemarcated share of the property. Is this a matter requiring a registered deed? in Venkata Reddi v. Kuppa Reddi (1918) 8 L W 400 the question was as to a Hindu co-parcenary and it was held that joint living and joint expenses, etc., would not convert originally separate property into property of the co-parcenary and that the transfer of the share to the co-parcenary should only be regarded as a gift to it, and therefore required a registered deed under the Transfer of Property Act. In Thyalambal v. Krishna Pattar (1915) 32 IC 955 Srinivasa Aiyangar, J., found difficulty in understanding the conversion of individual property into joint family property except by way of transfers which presumably would require a registered deed. This, however, was clearly obiter. It has to be remembered that we are not now dealing with a joint Hindu family, but with Mahomedan co-sharers living together. There is thus no question of their status having become divided by the previous decree ; they were never united or joint. A right to execute a decree does not apepar to be a right in or to immoveable property, but merely a right to apply for process of the Court in execution. It is, therefore, difficult to see how an agreement not to exercise that right can be said to fall within the meaning of Section 17, Registration Act. I am, therefore, of opinion that this agreement did not require registration and that the District Judge was right on this point.
2. The second point which was argued at length before me relates to Ex. XV. Defendants 1 and 2 contend that the acquisition under this document was ma'de for their own benefit and with their own funds and that plaintiff and other heirs of Ali Khan Khiladar have no rights in it. The District Munsif upheld defendant 1 and defendant 2's contention as did the District Judge. The earliest document referred to on this point is Exhibit A, dated 8th February, 1893. Defendants 1 and 2 executed this karar to their elder brother, Hassan Ali Khan, who died in 1898. The younger brothers were to manage the common property for 18 years, and thus the arrangement came to an end early in 1911. The two other material documents on this question are Exs. XIII and XV. They are of the same date 26th July, 1915. Ex. XIII is a second mortgage effected by defendants 1 and 2 and the question is 'Was it of their own shares alone or did they include the shares of the other heirs as well ?' 'If so, by what right ?' It must again be remembered that we have nothing to do with Hindu Law, with its joint family and powers of the manager to bind the other co-parceners, etc. Prima facie a Muhammadan dealing with property owned in common deals only with what he is entitled to deal with, viz., his own shareAbdul Majeeth v. Krishnamachari ILR (1916) M 243 Sukur Mahamed v. Asmot Mandal ILR (1923) C 978. Ex. XIII recites the debt due to the mortgagee under Ex. IX which was a family mortgage of 1899 'due by us.' D. 1 and D. 2 no doubt refer here to the family. They stipulate that the mortgagee shall pay off the shares of certain females in all amounting to Rs. 6,000 and refer to the family debt on other accounts for Rs. 5,000. 'The amount due under this deed by us to you for our family necessity is Rs. 11,000' and the mortgagors give possession of the 'said items' in the schedule which is para. 1 are said to 'belong in jenm to us and are in our possession.' They further agree that in default 'our jenm rights in the schedule items should be sold' 'out of us personally and out of our other properties.' All this certainly strikes me as personal to the mortgagors ; they happen to be borrowing from the same lender as advanced to the family under Ex. IX where the family were all parties and they refer to this family debt. Ex. XV is a release of their claim by the four females referred to in Ex. XIII, they have been paid off. It is executed to D. 1 and D. 2. If necessary this may be treated as a conveyance, Duraiswami Pillai v. Chinnia Goundan (1918) MWN 89, though it is called a release. It is said (1) that the consideration for Ex. XIII did not proceed from D. 1 and D. 2. D. 1 in his evidence says it was the equity of redemption owned by the family which was dealt with under Ex. XIII ; he does not say how he came to be authorised to deal with it. His evidence may mean that as there was a mortgage on the family property by the family, their individual shares in that equity of redemption were dealt with. It was of course an equity of redemption belonging to the family in which they (D. 1 and D. 2) owned definite shares. (2) The execution of Ex. XIII was benami for the family. I see no evidence of it. There is no provision in Muhammadan Law that the acquisitions of the several members are made for the benefit of the family jointly. Hakim Khan v. Gool Khan ILR (1882) C 826 and Krishnajiban v. Masiuddin (1921) 33 C LJ 369. A co-tenant is not a trustee for another co-tenant Kennedy v. De Traford (1897) AC 180 which has been followed by a Bench of this Court in O.S. Appeals Nos. 4 of 1897 and 7 of 1915. Nor is there any evidence of delegation. It was finally argued that accepting all these propositions of Muhammadan Law, Sections 88 and 90 of the Trusts Act apply. In the former the person to be held liable must be in a fiduciary position to protect the interests of another. It has been pointed out that there is no such relation between co-owners. In the latter a qualified owner gains an advantage in derogation of the rights of others interested in the property. If D. 1 and D. 2 merely mortgaged their own shares, there is no question of interference with the rights of others. Lastly, it was argued that, treating Ex. XIII as the act of strangers to the family, it had been adopted subsequently by the others as their act and ratified under the ordinary law of contract. The mortgagee says he did not insist on the rest of the family joining in Ex. XIII as he thought the shares of D. 1 and D. 2 would suffice as security. There is no evidence that the family ever expressed a wish to join in or to adopt the action of D. 1 and D. 2 as their own. There is no finding on it either and the point seems to be taken for the first time here. I think both the Lower Courts were right in the conclusion they came to on this point which is raised by the Memorandum of Objections one by defendant 3 and the other by plaintiff together with defendants 4, 5, 7 and 8.
3. The Second Appeal is dismissed with costs and the two Memorandum of Objections which raise the same point are also dismissed with costs of defendants 1 and 2.