Viswanatha Sastry, J.
1. In order to understand the contentions of the several parties in these two second appeals the earlier history of these-litigations has to be set out in brief outline. The suit of which these two second appeals arise was instituted as early as 12th February, 1937, by the plaintiff, the youngest of five brothers, against his elder brothers for a partition of the family properties some of which are situated in India and spine in Cochin State. The family was of a humble origin but later on, through the exertions of some of the brothers, acquired considerable landed properties. There was also a lucrative Coffee Hotel business carried on at Trichinopoly by some of the brothers. Misunderstandings arose between the brothers which resulted in a demand for partition by one of them On 8th September, 1936. All the brothers then met together and after some deliberation settled their disputes in a way. On 15th September, 1936, they entered into an agreement evidenced by Exhibit XX to divide the properties in the manner set out therein. All of them signed the document presumably in token of their consent to its terms. Under Exhibit XX the present first defendant, the eldest brother, got for his share certain lands situated in Cochin State which was subject to an encumbrance of Rs. 3,000 and certain lands and a house situated in Ottapalam. To the share of the second brother, the present second defendant, was allotted the Coffee Hotel business in Trichinopoly known as ' Bheema Central Lunch Home' with all its moveables and also certain lands and the family houses in Ottapalam. The next two brothers, defendants 3 and 4 were allotted another Coffee Hotel in Trichinopoli known as the ' Central Cafe ' with all its moveables but with the liability to redeem a pair of a diamond earrings which had been pledged for Rs. 2,500, apparently for the purposes of the business, and hand it back to the first defendant. The plaintiff, the last of the brothers, was allotted a building and the remaining lands in Cochin State together with a sum of Rs. 1,000 agreed to be paid to him for the value o'f certain jewels. The plaintiff was saddled with a liability to pay off a mortgage for Rs. 2,500 outstanding, on the lands allotted to him in Cochin State. No provision was made in Exhibit XX for the division of the moveables mentioned in Schedule V of the plaint or the outstandings specified in Schedule C Exhibit XX was left unregistered. It was however followed up by Exhibit II, dated 19th September, 1936, signed by all the five brothers by which in accordance with the terms embodied in Exhibit XX, the Coffee Hotel known as ' The Bheema Central Lunch Home' with all its moveables valued at Rs. 4,500 was transferred absolutely to the second defendant and the Coffee Hotel known as the ' Central Cafe ' with all its moveables valued at Rs. 10,000 was transferred to defendants 3 and 4 absolutely. With regard to the remaining properties which were agreed under Exhibit XX to be divided among the brothers, Exhibit II, recited that since the brothers were not in possession of the exact description, survey numbers and other details of the properties they would draw up a formal document later on. There was an unsuccessful attempt on the part of the first defendant to modify the stipulations in Exhibit XX and also some considerable delay in implementing the terms of Exhibit XX by delivery of the properties allotted to the plaintiff which led to his present suit for partition from which these appeals have arisen.
2. The suit was numbered as O.S. No. 8 of 1938, and decided by the Subordinate Judge of Ottapalam who held that Exhibit XX was not a final partition but only a tentative arrangement between the parties as regards partition; that it was inadmissible in evidence for want of registration; and allotments made under Exhibit XX were unequal in value. He therefore decreed a general partition holding, however, that effect must be given to Exhibits XX and II to this extent, namely, that the ' Bheema Central Lunch Home ' should be allotted to the share' of the second defendant and the ' Central Cafe ' to the share of the defendants 3 and 4. He also passed a preliminary decree with reference to the moveable properties and silver vessels of the family, the value of the silver vessels being fixed at Rs. 600 in the decree. He also directed that the entire family should pay the first defendant a sum of Rs. 2,500 for the value of his diamond ear-rings and a sum of Rs. 1,000 to the plaintiff for ornaments. Against this decision of the Subordinate Judge, there was an appeal and a cross appeal to the District Judge of South Malabar who held that Exhibit XX was a valid and operative partition; that there was no satisfactory evidence to show that the partition was grossly unfair; that even if there was some inequality in the partition, the same had been accepted by all the brothers; and that the decree given by the Subordinate Judge for partition of the immoveable properties ignoring Exhibit XX should be set aside. He fixed the value of the silver vessels to be divided among the brothers at Rs. 1,200 and confirmed the decree of the Subordinate Judge with respect to other moveables and outstandings. The judgment of the District Judge was appealed against to the High Court in Second Appeal No. 1000 of 1943 at the instance of defendants 3 and 4 who felt that the value of the property allotted to them was far too low when compared with the value of the property allotted to the first and second defendants, a matter on which the Subordinate Judge had expressed himself in their favour. The plaintiff and the first defendant each filed a memorandum of cross-objections in the High Court.
3. I now turn to another litigation between the same parties in the Courts of the Cochin State. The youngest of the five brothers as plaintiff instituted O.S. No. 120 of 1112 (M.E.) for partition of the family properties situated in the Cochin State in the District Court of Trichur. A decree for partition of the Cochin properties was passed by the District Judge who held that Exhibit XX being unregistered was inadmissible in evidence to affect immoveable properties. There was an appeal A.S. No. 115 of 111 6 (M.E.) to the Chief Court of Cochin which finally decided that Exhibit XX was a valid and operative partition and a decree for partition of the Cochin properties on the basis of Exhibit XX was passed. One of the items of the Cochin property that had been allotted to the* plaintiff under Exhibit XX was subject to a prior encumbrance of Rs. 2,500 and it had been sold away in execution of a decree obtained by the encumbrancer during the pendency of the partition suit. The plaintiff claimed that he was entitled to be compensated for the loss of this item by his brothers, especially the first defendant due to whose manoeuvres, it was alleged, that the encumbrancer had brought the property to sale and the plaintiff had been deprived of all means of redeeming the property. The Chief Court of Cochin, however, held that the property had been lost to the family without any fault or negligence on the part of any body and there was therefore no ground for making the other brothers pay any compensation to the plaintiff la respect of the loss of the property by the Court sale. Thus ended the litigation regarding the partition of the Cochin properties.
4. I now return to Second Appeal No. 1000 of 1943, and the memorandum of cross-objections filed therein. Pending the second appeal, four of the brothers, defendants 1 to 4 filed a memorandum of compromise into this Court on 28th August, 1944, and on the same day a decree was passed in terms of the memorandum as between the parties to it. The youngest brother, the plaintiff in the action, was not a party to the compromise. Since the decision of the present appeal turns upon the effect to be given to the memorandum of compromise, I set out its terms hereunder:
Memorandum of agreement between defendants 1, 2, 3 and 4.
(1) The decree of the lower appellate Court as regards the allotment of properties to these parties is to stand so far as they are concerned.
(2) The defendants 3 and 4 give up their claim for the silver vessels referred to in para. (2) -of the lower appellate Court decree-defendant 1 gives up his claim for the earring Rs. 2,500, decreed to him in para. V of first Court decree and confirmed by lower appellate Court.
(3) Each party to bear his own costs throughout.
(4) In other respects the decree of the lower appellate Court will stand....
As the plaintiff was not a party to the compromise or the decree which followed upon it, the second appeal was heard and decided on the merits as regards the plaintiff by Somayya, J., on 8th September, 1944. The controversy in the present second appeal has turned upon the effect of the compromise set out above in the light of the judgment of Somayya, J. The admissibility of the unregistered arrargment Exhibit XX for the purpose of affecting the immoveable properties dealt with thereunder was the subject of a sharp difference of opinion between the two lower Courts and was debated again before Somayya, J., who, however, did not give a decision on the question, for reasons which may be set out in his own words:
The admissibility in evidence of Ex. XX which was not registered has been very much canvassed, but in view of further investigation it is not necessary to decide this question. We find that most of the valuable British Indian properties covered by Ex. XX, namely, the Trichinopoly Coffee Hotels, have been the subject of Ex. II, a registered deed and that all the Cochin properties have been divided by the decrees of the Cochin Courts. The properties which will be affected by the argument that Ex. XX is inadmissible are these:
(1) A paddy field allotted to the first defendant, (unnecessary description omitted).
(2) A house allotted to the second defendant. .
(3) Certain dry fields allotted to defendants 3 and 4. The parties have agreed that, if possible, the properties just mentioned as having been allotted to the first defendant, second defendant and defendants 3 and 4 may be allotted to their share. Even taking that, Ex. XX is admissible in evidence;, it does not say that the inequalities in value were not to be adjusted later on. The view of the trial. Court appears to be right and the appellate Court has really given no reasons for coming to a different conclusion. I hold that the inequalities in the value of the properties allotted must be adjusted.
5. Dealing with the plaintiff's claim for compensation or adjustment in respect J of the Cochin properties Somayya, J., observed as follows:
His (plaintiff's) grievance, therefore, is that owing to the default of the first defendant he has-lost a major portion of the property that was allotted to him under Ex. XX. If this property had been situated in British India, the rights and liabilities of the parties could be adjusted, but we do not know whether this grievance of the plaintiff, which appears to be the real grievance, was-also the subject of decision by the Cochin Courts and we do not know how the Cochin Courts have dealt with the question.
As regards the division of the Cochin properties, the parties are bound by the decree of the Courts-of Cochin to which they were all parties. We have further to see whether, as regards the Cochin . properties, the Courts have adjusted the inequalities, if any, in the properties allotted to the various-sharers.
6. The decretal portion of the judgment was in these terms:
The decree of the lower appellate Court is modified to the extent indicated above and the-appeal remanded for disposal according to law in the light of the above observations. The compro- mise between the defendants inter se will stand.
7. After the remand, defendants 3 and 4 contended before the lower appellate Court that the inequalities in the value of immoveable properties allotted to the parties under Exhibit XX should be enquired into and adjusted. The learned-District Judge, at the further hearing, negatived this contention and held that it was only as regards the plaintiff, the difference between the value of the iromoveable properties actually allotted to him and his legitimate one-fifth share had to be adjusted. He held that the compromise filed in this Court precluded any consideration of the alleged inequality inter se among the defendants. Against this part of the judgment of the learned District Judge, defendants 3 and 4 have preferred Second Appeal No. 1699 of 1946. The learned District Judge further held that the plaintiff had to be compensated for the loss of a portion of the Cochin property allotted to him under Exhibit XX as a result of the Execution sale, following a mortgage decree as already stated. Against this part of the judgment of the lower appellate Court, the first defendant has preferred Second Appeal No. 2118 of 1946. The learned District Judge also held that the value of the silver vessels must be fixed at Rs. 600 and not at Rs. 1,200 as fixed by his predecessor. He gave no direction as regards the plaintiff's claim for mesne profits which had been allowed by the Sub-Court but disallowed by the District Judge on the previous occasion. In respect of these two matters the plaintiff has preferred a memorandum of cross-objections in Second Appeal No. 2118 of 1946.
[Then his Lordship dealt with S. A. No. 1699 f J94^ which has been omitted as not necessary for the purpose of the report.]
8. I now proceed to consider Second Appeal No. 2118 of 1946. The lower appellate Court held that the plaintiff was entitled to be compensated for the loss of a portion of the property allotted to him by Exhibit XX in the Cochin State by reason of the Court sale which followed a decree in a suit to enforce a mortgage on the property. Mr. K.P. Ramakrishna Iyer for the plaintiff respondent states that though the plaintiff was bound to pay Rs. 2,500 charged on the property allotted to him in Cochin, the property was lost as a result of a Court sale because the plaintiff had not been put in possession of funds by the first defendant for averting the sale. He states that the real value of the property lost by the Court sale was Rs. 5,000 judged by its annual income of 400 paras of paddy and the plaintiff was entitled to be compensated for the sum of Rs. 2,500 being the difference between the real value of the property and the amount realised at the Court sale or the amount of the encumbrance. He further contends that the judgment of Somayya, J., compels me so to hold. I am unable to agree with this contention. The original and appellate judgments of the Cochin Courts which have become filial and binding between the parties as regards the partition of the properties in the Cochin State which were not before Somayya, J., and which have since been exhibited, clearly decided, that the plaintiff failed to discharge an encumbrance subject to which alone he had taken the property, that its loss at the Court sale was not attributable to any negligence or fraud on the part of any body and that in effecting a partition of the Cochin properties according to the terms of Exhibit XX, the plaintiff was not entitled to any compensation in respect of the loss of a portion of the property allotted to him by reason of the Court sale. The Courts, in what was then British India,-had no jurisdiction to direct or decree a partition of properties situate in the State of Cochin-see Rajangam Aiyar v. Rajangam Aiyar (1922) 44 M.L.J. 745 : L.R. 50 IndAp 132 : I.L.R. 46 Mad. 373 (P.C.). The adjustment of the shares of the several parties with reference to the Cochin properties properly fell within the scope of the partition suit filed in the Cochin Court and has been finally decided by that Court. It is not open to this Court to go behind the judgment of the Cochin Court or enquire into any alleged inequality or any right to compensation in respect of the division of the Cochin properties. I do not consider that Somayya, J., decided that this Court was bound to decide the question as regards the inequality in the value of the properties situate in the Cochin State and partitioned by the Cochin Courts.
9. His Lordship said:
As regards the division of the Cochin properties, the parties are bound by the decree of the Courts of Cochin to which they were all parties. We have further to see whether as regards the Cochin properties, the Courts have adjusted the inequalities, if any, in the properties allotted to the various sharers. The proper course under these circumstances seems to me to direct the lower appellate Court to receive the records in the Cochin Court and then adjust the inequalities, if any.
I hold that the Cochin Courts have definitely and finally adjudicated upon the alleged inequality in value or the right to compensation arising out of the partition of the Cochin properties adversely to the plaintiff, that that adjudication is binding on the parties and further that it is not a matter falling within the jurisdiction of this Court. It follows from the above reasoning that S.A. No. 2118 of 1946 must be allowed with the costs of the first defendant payable by the plaintiff.
[The memorandum of objections in this second appeal was then dealt with and allowed partially.]
10. No leave in any of the cases.