1. This Second Appeal arises out of a suit for specific performance of an agreement between co-owners to divide their property in a particular way.
2. The facts may be more specifically stated. One Appala-charlu was the last owner of the suit property. He died about 70 years ago leaving his widow Lakshmamma and brother's widow Seshamma. Lakshmamma died in 1866. At the time of her death the plaintiff, a grandfather Lakshmana-charlu, the 1st defendant's father Seshacharlu and the 2nd defendant's grand-uncle Sreenivasacharlu were the reversion-ers entitled to the property. But after taking possession they found that they had to arrange for the maintenance of Seshamma. So, they entered into an agreement with Seshamma under which they allowed her to remain in possession until her death and they or their heirs should take the property after her death. Seshamma died in 1895. (Fide Ex. BB-2, the date in para. 6 of the plaint in the printed papers is incorrect). At the time of her death, plaintiff's paternal uncle Seshacharlu, the 1st defendant and the 2nd defendant's father represented the three reversioners of 1866, and these were entitled to the property. But Seshamma disposed of the property in her possession by a will and by several sale deeds though she had no right to do so, and the three persons entitled to the property had to bring a suit. Such a suit was filed as O.S. No. 30 of 1907 of the District Court of Nellore. It was afterwards transferred to the Temporary Subordinate Court and became O.S. No. 60 of 1913. In that suit, the 1st plaintiff was the present 1st defendant, the 2nd plaintiff was the present 2nd defendant's adoptive father and the 3rd plaintiff was the present plaintiff's uncle. Before filing the said suit, the three plaintiffs therein entered into an agreement dated 5th August, 1907, Ex. EE, under which it was agreed that in consideration of the 3rd plaintiff (uncle of the present plaintiff) conducting the suit by instructing vakils and in other ways and, in consideration of the document being in his possession, 118 of the properties recovered should be given to him solely and the other 7/8ths should be taken in equal shares or in other words while the 1st plaintiff and 2nd plaintiff was to get 7/24, the 3rd plaintiff was to get 10/24. While the suit was pending before the Sub-Judge they entered into another agreement modifying the former agreement, Ex. FF unable (Letter, dated 25th October, 1909. Vikrala Bhashyakacharyulu and do. Krishnamacharyulu write to say as follows:-'Now, for recovery of the property of Vikrala Appalacharyulu, we three filed a suit in the District Court of Nellore. That suit having been decided against us, we were put to considerable trouble and loss, and preferred an appeal to the High Court. With the idea of engaging a big vakil in that matter, we engaged V. Krishnaswami Aiyar Garu. As he was soon after elevated to the Bench, we had to engage a big vakil again. We having been pressed by defendants far costs and not having been able to get money and pay the costs in time, we were obliged to stop further proceedings in the affair. So, on 5th August, 1907, we entered into an agreement to refer the matter to arbitration, chose M.R. Ry. Mangu Ramanuja Rao, Thalpur Appiah, Dittathi Rama-krishnayya and others as Panchayatdars, and agreed to abide by their decision. So, agreeably to their decision, you yourself shall bear the expenses henceforward, and get the suit prosecuted to a successful termination. For this an able and efficient vakil has to be engaged. The fee payable to him, and the charges for printing the record, and, if the suit be remanded to Nellore (Court) for enquiry in full then the costs in that Court and if again an appeal were to be preferred, the costs thereof, and the costs, if any, payable to the defendants henceforward, all these, you shall bear for yourself. If ever we become possessed of means, and give you money then you shall take that money. Whether you win or lose the suit, you have no business to ask for money. We shall, however, at our own expense, render you assistance in furnishing you with evidence or the helping you with word of mouth. If, facing all these difficulties and disadvantages, you win the suit, then, we shall, in consideration of this, give you as share due to a redeemer or saviour, one-eighth, as already agreed in writing, and; for your having spent your own money in respect of our shares also, another one-eighth, making in all one-fourth out of the entire properties that may be recovered by us, and bring the remaining properties to apportionment into the equal shares amongst us three. We have written and given this letter in token of our having agreed to the decision of the Panchayatdars in this way, and for your confidence. (Signed) Vikhirala Bhashyacharyulu.) dated 25th October, 190 In this agreement, it was stated that the first two plaintiffs were unable to find their share of the expenses and therefore Ex. EE, the earlier agreement was executed. It was then provided that all the further expenses of the suit should be borne by the 3rd plaintiff and in consideration of this instead of the old 1/8, 1/4 share was to be kept apart for the 3rd plaintiff and the other 3/4 was to be taken in three shares or in other words the first two plaintiffs were each to get a fourth share while the third plaintiff was to get a half-share. Some time after this agreement the 2nd plaintiff therein died and his son, that is the present 2nd defendant, was added as the 4th plaintiff, and the 3rd plaintiff died and his son, that is the present plaintiff, was added as the 5th plaintiff. It may be added that the parties originally engaged the late Mr. V. Krishnaswami Aiyar (afterwards a Judge of this Court) as their vakil and had to incur heavy expenses. The Subordinate Judge decreed the suit only in respect of item 1 of the present suit and in that item instead of decreeing the whole he decreed only 5/6, that is, one-third of the 1st plaintiff and one-third of the 4th plaintiff, but only 1/6 instead of 1/3 of the 5th plaintiff., As to another item, item 7 of that suit, he dismissed the suit as beyond time. This was in 1914. There was an appeal to the District Court of Nellore. It was filed in respect of the 1/6 share of the 5th plaintiff disallowed by the Sub-Judge and the other item, the claim for which was held to be barred. It appears that the appeal was filed with insufficient stamp and it was returned for payment of deficient stamp duty on 30th July, 1914. After several extensions of time allowed it was stated that the 1st and 2nd appellants did not wish to continue the appeal and the deficient stamp duty was paid only for the 3rd appellant who continued the appeal. This was on the 2nd of September, 1914. The appeal Was disposed of in March, 1916. The result of it was that the 3rd plaintiff's appeal was fully allowed. He got his 1/6 share disallowed out of the item decreed by the Subordinate Judge and his own 1/3 share of item 7. The other shares of item 7 were not decreed as the other appellants did not prosecute the appeal. Looking at the reasons of the District Judge (vide Ex. BB) one would think they too would have got a decree for their shares. It is obvious that in the interval between the filing of the appeal and the 2nd of September, 1914 the first two appellants broke away from the 3rd appellant either because they entered into a private arrangement with the opposite party or for some other reason. Soon after the disposal of that appeal, that is on 7th March, 1917, the present suit was filed for specific performance of the agreement in Ex. FF. A number of objections were taken by the defendants. They denied the genuineness of the agreement of 1866 and of Exs. EE and FF. They denied that the plaintiff and his uncle performed their part of the agreements. They also contested that plaintiff is not entitled to the benefit of the agreement as the heir of his uncle. All these points were found by both the Courts below in plaintiff's favour and against the defendants. But in spite of this, the defendants succeeded in both the Lower Courts on certain technical objections. The District Munsif found that Exs. EE and FF amount to a sale and not being registered are ineffective to pass any property to the plaintiff. He also held that the plaintiff's remedy is to refer the matter to arbitrators and not to sue. On appeal the Subordinate Judge held that Exs. EE and FF are inadmissible for want of registration and dismissed the appeal. The plaintiff files the second appeal.
3. Exs. EE and FF do not purport to be sale deeds. They purport to be agreements to divide the property in certain shares. Nor do they purport to convey any property. In my opinion, they are merely agreements to do all that is necessary on the part of the promissors to give effect to the division agreed upon. This remark is particularly true of Ex. FF which is executed by the two defendants in favour of the plaintiff unlike Ex. EE. It is true they do not expressly say that another document will be executed, but I do not think this is necessary to bring the documents within the exempting Clause 17(v) of the Registration Act. Seeing that they do not by themselves purport to convey property, it follows that if they are ineffective without another document there is an implied undertaking to execute a further document. In this respect I think this case is a far better case than the decision in Mangamma v. Ramamma I.L.R. (1912) M. 480. In that case the document while contemplating the execution of another document also purported to be a sale on its date and to place the vendee in possession. I must state there are several unre-ported decisions of this Court taking the same view. So early as Adakkalam v. Theethan I.L.R. (1889) 505 it was held that a mere agreement does not require registration and is admissible for the purpose of obtaining specific performance. In Nagappa v. Devu (1891) IT R 14 it was held that even where a document purports to be a sale deed it is inadmissible for want of stamp or registration, it is admissible as an agreement to sell in a suit for specific performance. See also Upendra Nath Banerjee v. Umesh Chandra Banerjee 15 C.W.N. 375. The same view is taken in Indar Singh v. Munshi I.L.R. (1919) Lah 124. The test in all such cases is not whether a document expressly contemplated execution of another document, but whether by itself it created any right to immoveable property, and if it did not, then it does not require registration. See Rajangam Aiyar v. Rajangam Aiyar (1922) 44 M.L.J. 745. Whatever view we take therefore of Exs. EE and FF they are not inadmissible for want of registration.
4. It seems that two possible views may be taken of these documents. As the three sharers were tenants-in-common of the property, every one is strictly entitled in the theory of law to every particle of the properties, and therefore when they agreed to divide in certain shares it cannot be said there is a conveyance by some sharers in favour of another even though but for the agreement the shares would have been different. Where every one is owner of every part of the property there is nothing to convey, and it is only a question of shares. The inequality of shares may be due to various reasons. In all such cases, a mere agreement to divide is enough to enable the party who benefits by it to sue for specific performance of an agreement and to recover possession. The judgment of this Court in S.A. 'No. 760 of 1913 is an example of such a suit. In that case, a number of sharers who resisted the suit by another, relying on adoption, entered into an agreement by which one of them in consideration of supporting the plea of adoption by the others was to get a share larger than what he would be otherwise entitled to. The suit in which they were all defendants having been dismissed and the defendants having been given the shares to which they were entitled without the agreement, a subsequent suit was afterwards filed to enforce the agreement and to get the extra share. Both the Lower Courts dismissed the suit. In appeal, the High Court (Sankaran Nair and Ayling, JJ.) allowed the Second Appeal holding that the agreement was binding as a settlement of a doubtful matter. It is true the question of registration was not discussed in Second Appeal but was taken in review and was disallowed. In the present case also, as the three plaintiffs were out of possession of the property and had to litigate to acquire them, it may be said the matter is doubtful and a settlement settling the shares in a particular way may be said to be a settlement of a doubtful matter, in which case it will not fall under the Transfer of Property Act and does not require to be registered even if it amounts to a complete transaction.
5. But a second view is possible; it may be said that Ex. FF is merely an agreement to do the needful for conveying an extra share and by itself cannot give a right to the plaintiff to obtain a certain share. If so, all that the plaintiff has to do is to pray for a direction directing the defendants to execute the document if the Court so thinks fit. It is true that the original plaint did not contain any such prayer. After the appeal was filed in the Lower Appellate Court the plaintiff applied for permission to amend the plaint by the addition of such a prayer. The Subordinate Judge dismissed the appeal, but did not deal with this prayer for amendment and dismissed the petition without giving any specific reasons and the vakil for the appellant complained of this before me. Seeing that all the defendants' objections in the case are technical and they have really nothing in the merits it seems to me that in the interests of justice this is a case in which the Lower Appellate Court ought to have the amendment on such terms as it thought fit. An amendment of the plaint was even allowed for the first time in second appeal. See Dronan Raju Ramayya and Ors. v. Peddayya (1911) 10 M.L.T. 116. In this case it ought to have been permitted in the Lower Appellate Court and 1 accordingly allowed the plaint to be amended by the addition of such a prayer. I even think that the direction for the execution of an ancillary document might well be included under prayer C of the original plaint ' such other relief as the Court thinks fit under the circumstances. ' However, as the plaintiff was not diligent enough I think he must pay the costs of the defendants in the first two Courts.
6. Mr. Bhashyam for the respondents raised three minor objections. First, he said that the plaintiff was guilty of some fraud, relying on para. 4 of the written statement and that a finding on it is to be called for. There is no issue on it and the only issue as to plaintiff's conduct is the third issue, namely, whether he performed his part of the agreement.
7. This has been found in favour of the plaintiff. Mr. Bhash-yam originally suggested that the plaintiff fraudulently did not pay the deficient Court-fee in the appeal in the former suit, but the facts I mentioned above from Ex. BB-I show that after the other appellants withdrew the 3rd appellant paid his own share of the Court-fee. I therefore do not think there is any point requiring fresh enquiry.
8. The second objection taken by Mr. Bhashyam is that the suit for possession is not maintainable along with the suit for specific performance. He relied on the Letters Patent decision in Rangayya Keddi v. Subramania Aiyar : (1917)32MLJ575 . One of the Judges dissented. But apart from it, 1 think that case is distinguishable from the facts before me. In that case the suit for specific performance was against one person and the relief for partition was claimed against other persons who are not parties to the first prayer and this fact furnished the ratio decidendi of the decision. The English cases relied on by Wallis, C.J., for instance, De Hoghlon v.Money (1866) L.R. 2 Ch. Ap. 164, also support the distinction. it is unnecessary to refer to all of them. The recent decision of the House of Lords in Mildred Howard v. William Miller (1915) A.C. 315 also illustrates the distinction. In the present case the defendants are persons against whom both the reliefs, namely, specific performance and possession-were asked. In such a case all reliefs consequent on the decree for specific performance ought also to be granted. ' (See Fry on Specific Performance, Section 1402.)
9. The third objection raised by Mr. Bhashyam is that the plaintiff's remedy is to refer the matter to arbitrators and not to bring the suit. He relies on Ex. EE, the last sentence at page 1 of the documents. This clause is not repeated in Ex. FF. He contends that the clause remained operative after the execution of Ex. FF. On reading the two documents together, 1 do not agree with this contention. The intention is to drop the clauses from Ex. FF. It seems to me that Ex. FF is complete in itself and did not intend any further reference to Ex. EE. Again I do not see how one party can refer a matter to arbitrators (who are not even named) without the other co-operating. Thirdly, the document EE refers to advice of mediators and not to decision of arbitrators and the advice of mediators can be taken and acted upon only if all the three parties go to them. For all these reasons, I disallow this contention.
10. The only question that remains is, what is the relief to which the plaintiff is entitled? There are two items in the suit, the first item was divided into 6 shares of which each of the three parties took two. According to the agreement, plaintiff ought to have another sixth, that is, he ought to have one out of the four shares in the hands of defendants. Instead of this he claimed 1 1/2 out of the four shares in the hands of the defendants. He is entitled only to a half-share each from the two shares of each of the defendants. There will he decree directing that the plaintiff will be entitled to get 1/4. of such share which each defendant has in item 1. He will be entitled to proportionate costs of this throughout, but he will pay proportionate costs on the disallowed half-share in Second Appeal. As to the second item, the parties never prosecuted the appeal together, and the plaintiff wants now a share in item 1 in substitution of what he would have got from the other item if all had stuck to their agreement. I do not think he is entitled to this, and this claim will be dismissed with proportionate costs in Second Appeal. I have already said that the appellant will pay all costs of the respondents in both the Courts below. The plaintiff will be also entitled to mesne profits from the date of suit till delivery of possession on the item decreed. The District Munsif will ascertain in the past profits and pass a final decree. The future profits will be determined in execution.