Satyanarayana Rao, J.
1. The plaintiff is the appellant in the second appeal and his suit for recovery of possession of 1 acre 58 cents in S. No. 160/1 in the village of Melur described by boundaries in the plaint schedule was dismissed by the Courts below. Hence this appeal.
2. One Muthukrishna had two sons, Srinivasalu and Ramakrishna. Ramakrishna is the first defendant in the present suit. His son Pothurajalu is the.second defendant. Srinivasalu had two sons Venkatakrishna and Krishnamurthi. Krishnamurthi is the present plaintiff. Venkatakrishna died in 1935. In 1917, Srinivasalu instituted a suit for partition, O.S. No. 190 of 1917, on the file of the District Munsiff's Court of Srirangam, and impleaded in that suit Muthukrishna also as a party. In that suit 2 acres 39 cents in S. No. 160/1 of which the present suit property forms a part was not included, presumably because the property was purchased by Muthukrishna in his own name. The suit was decreed. Later, Pothuraju, the present second defendant, instituted another suit for partition, O.S. No. 202 of 1929, against Muthukrishna, Ramakrishna, the present first defendant and others. That suit comprised all the properties including 2 acres 39 cents (S. No. 160/1). There was a preliminary decree for partition in that suit decreeing partition according to the shares to which each was entitled and Muthukrishna died after the preliminary decree in that partition suit. He executed a will dated 16th January, 1929, whereunder he made a bequest among others of 2 acres 39 cents in S. No. 160/1 to the present plaintiff, Krishnamurthi. After the death of Muthukrishna, the partition suit, O.S. No. 202 of 1929, was continued after impleading Lakshmi, his widow, as a party. It must be stated that the ibequest in favour of the plaintiff under the will of Muthukrishna was to obtain possession of the property after the death of Lakshmi as a life interest was created in favour of Lakshmi under, the said will. As Muthukrishna died after the preliminary decree and as Lakshmi was added as his legal representative and as the plaintiff had only a right to possession after the death of Lakshmi, apparently the title based on the will in respect of the 2 acres 39 cents was not and could not be put forward by the present plaintiff in that suit, O.S. No. 202 of 1929. In due course there was a final decree in that partition suit in which the properties were divided and allotted to the various sharers in accordance with the directions, contained in the preliminary decree. In 1936, Ramakrishna, the present first defendant, instituted a suit, O.S. No. 17 of 1936, against the plaintiff in respect of the right to management of certain charities belonging to the family. That suit did not proceed to trial and there was a compromise decree in that suit on 21st September, 1936 (Ex. P-4). Under this compromise, Ramakrishna, the present first defendant, agreed to recognise the rights of the plaintiff, the present appellant under the will of Muthukrishna. The portion of the compromise relating to this-matter is as follows:
That the plaintiff herein (i.e. Ramakrishna) has no interest, claim or right whatsoever regarding the properties belonging to the defendant under Muthukrishna Naidu's will; that the plaintiff herein and his heirs should not question this will.
As Ramakrishna was in possession of a third share and as Pothuraju was also in. possession of another third, the plaintiff instituted the present suit on the basis of the will of Muthukrishna to recover possession of the 2/3rd share in S. No. 160/1; the other third was in the possession of the plaintiff as per the partition decree in O.S. No. 202 of 1929.
3. The suit was dismissed by both the Courts on the ground that as the compromise relating to the suit property was outside the scope of the suit O.S. No. 17 of 1936 the compromise required registration; and further that in any event the title of the plaintiff to recover the properties on the strength of the will of Muthukrishna was concluded by the decision in O.S. No. 202 of 1929. So far as the second defendant in the suit is concerned he was not a party to the compromise and the view of the Courts below that the plaintiff's claim so far as the plaintiff's claim as against him is concerned is governed by the decision in O.S. No. 202 of 1929 seems to me to be correct. It is for this reason that the learned advocate for the appellant did not press in this appeal his claim against the second defendant and I think that the position taken by the learned advocate is perfectly correct.
4. The claim however against the first defendant stands on a different footing. In O.S. No. 202 of 1929 the claim of the present plaintiff based on the will of Muthukrishna could not be put forward as he was not impleaded as the legal representative of Muthukrishna but his widow Lakshmi was impleaded and even if he was impleaded it was impossible for him to have raised the question of title to the property under the will as the only question in issue then was as between Ramakrishna and other members as to whether the present suit property was his self-acquired property or not. Except the decree in the suit we do not have any other record, of that suit, i.e., either the pleadings or the judgment, to indicate what exactly the contentions of the parties were in that litigation. We may assume-that that suit decided or at any rate proceeded on the. footing that this item also-was joint family property and not the self-acquired property of Muthukrishna. to which he was solely entitled. That implication it is that helps the second defendant in retaining his one-third share in the present suit. It is open to Ramakrishna or other members who are in possession of this item to agree to treat the will as valid notwithstanding the implied finding, if one there was, in O.S. No.. 202 of 1929 that the property was the joint family property and not the self-acquired: property of Muthukrishna. This admission so far as the first defendant is concerned is contained in the compromise decree in O.S. No. 17 of 1936. It is on the basis of this admission that the present suit was instituted by the plaintiff to recover possession of the property from the first defendant. The view, therefore, of the Courts below that the implied decision in O.S. No. 202 of 1929 stands in the way of the plaintiff recovering possession of the one-third share in S. No. 160 /1 in the possession of the first defendant seems to me to be clearly wrong.
5. The argument that the compromise decree requires registration as it creates or in any event declares the right of the plaintiff to the suit property, in my opinion, proceeds on a misconstruction of the clause in the compromise decree. All that the clause says is that Ramakrishna agrees to treat the will as valid; Ramakrishna definitely stated in it that he and his heirs would not question the will and that they had no interest in the properties. This is not in my opinion either a declaration of the title of the plaintiff or of his rights in the suit property; nor does this language create any title under this document to the suit properties in favour of the plaintiff. The title of the plaintiff is derived under Muthukrishna's will and not under this document. As this document therefore does not create or declare or extinguish any rights in the property it does not in my judgment require registration. As pointed out by the Judicial Committee in Bageshwari Charan Singh v. Jaganath Kuari (1931) 62 M.L.J. 296 : L.R. 59 IndAp 130 : I.L.R. 11 Pat. 272 (P.C.) the word 'declare' really implies that the document itself creates a title; a mere recital of a fact is not a declaration within the meaning of Section 17 of the Registration Act. It implies a declaration of will and not a mere statement. In the document before the Judicial Committee, the language was:
That in view of the petition filed by Thakur Jado Charan Singh, your petitioners beg to file the original deed of gift and prays that your Honour may be pleased to sanction the same or order a fresh grant on the same terms to be executed.
That was held to be not a declaration within the meaning of Section 17 requiring registration. The importance of the case before the Privy Council however is that it approves an earlier decision of West, J., in Sakharam Krishnaji v. Madan Krishnaji I.L.R. (1881) Bom. 232 in which the language of the document considered in that decision was similar to the language of the document in the present case. There it was stated:. we three persons and our heirs and representatives have no interest of any kind whatever. If we or they should prefer any claim then the same is to be null. This release paper we have duly passed in writing jointly and severally and in sound mind.
It was stated by West, J., with reference to this document that it did not contain a declaration and did not require registration. A passage from the judgment of West, J., was quoted by their Lordships of the Judicial Committee at page 300 and they approved the view of West, J., as to the meaning of the word ' declare ' in Section 17 of the Registration Act. The same view was also taken in the Lahore Central Co-operative Bank, Ltd. v. Qadir Bakhsh (1947) 2 M.L.J. 304 (P.C.). In view of these decisions I am of opinion that the compromise decree does not require registration as it does not by itself declare or create any rights in the suit property in favour of the plaintiff.
6. The result is that the plaintiff is entitled to succeed in respect of the one-third share in S. No. 160/1 of the extent of 2 acres 39 cents which is in the possession of the first defendant under the partition decree in O.S. No. 202 of 1929 and which in the final allotment was described as item 5(c)(2). The second appeal is allowed to this extent and the decrees of the Courts below will be modified by passing a decree in favour of the plaintiff for recovery of possession of that portion of S. No. 160/1, which was allotted to the first defendant as representing his one-third share under the partition decree in O.S. No. 202 of 1929 and was described as item No. 5(c)(2) in the schedule attached to the decree. The plaintiff will be entitled also to a decree for Rs. 15 representing profits for one year. from Chitrai 1939 to Chitrai 1940 (April 1939 to April 1940) and future profits will be ascertained under Order 20, Rule 12 of the Code of Civil Procedure by the trial Court. The second appeal against the second defendant fails and is dismissed. The plaintiff will be entitled to recover half costs in all the Courts from the first defendant. (No leave).