1. The learned Trial Judge in this case, which is a claim by a grandson against his grandmother, was asked to take into consideration a document which purports to be a deed of compromise dated 28th December 1918. In that document, there is a statement that House No. 27 in Thatha Muthiappan Street belonging to the said Ranganayakamma, that is the grandmother, and another house with which nobody in this case is concerned, which are in possession and enjoyment of the said Ranganayakamma from the date of the purchase, shall be enjoyed by the said Ranganayakamma with power to make gift and sell away. The learned Vakils have argued this case with great preciseness and^ Mr. Krishnasami Iyer for the appellant does not ask us to say that there is any magic about this document because it is in the nature of a nominal settlement which would excuse it from registration. It has been held by the learned Trial Judge on the argument of the respondent that it does require registration and to test that, I must look at the section of the Registration Act which is material, and' that is Section 17. By Section 17(1)(b) among documents which require registration are nontestamentaly instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of Rs. 100 and upwards, to or in immoveable property. Now it is said that this part of the document is a declaration of right in immoveable property and that, therefore' by virtue of Section 49, the document would create no rights in the property in question. It is said, on the other side, that this is not a document which purports to create or modify in any way anybody's title to immoveable property. It is simply a statement of fact, as I said in the course of the argument, that Johnson's house is Johnson's house. To my mind this matter cannot be put better than in the words of West, J., in the case of Sakharam Krishnaji v. Madan Krishnaji 5 B. 232 : 3 Ind. Dec. 154, where the learned Judge says thus : 'Here, however, the document is not itself one which declares a right in immoveable property, in the sense probably intended by Section 17. There 'declare' is placed along with 'create', 'assign', limit', or 'extinguish', a 'right', 'title' or 'interest' and these words imply a definite change of legal relation to the property by expression of Will embodied in the document referred to. I think this is equally the case with the word 'declare'. It implies a declaration of Will, not a mere statement of fact, and thus a deed of partition, which causes a change of legal relation to the property divided amongst all the parties to it, is a declaration in the intended sense, but a letter containing an admission, direct or inferential, that a partition once took place, does not declare a right within the meaning of the section. It does in one sense 'declare' a right, that is the existence of the right is directly or indirectly stated by the writing, but it is not the expression or declaration of Will by which the right is constituted.' I wish to associate myself with all that the learned Judge says on the point. It does not, appear to me that any of the later decisions, whether of the Privy Council or of the other High Courts in India, have, in any way, modified it, and indeed in one case in which in its initial stage I was concerned, the case of Varada Pillai v. Jeevarathnammal 53 Ind. Cas. 901 : 43 M. 244 : (1919) M.W.N. 724 : 10 L.W. 679 : 24 C.W.N. 346 : 38 M.L.J. 313 : 18 A.L.J. 274 : 2 U.P.L.R. : 22 Bom. L.R. 444 : 46 I.A. 285 , it appears to me that the judgment of the Board entirely -recognises and proceeds on the principle laid down in the Bombay case by West, J. Now it is said by Mr. Krishnasami Iyer that the document is conclusive of the rights of the parties if not as to moveable property, certainly as to immoveable property and he relies mainly on the decision of Khunni Lal v. Gobind Krishna Narain 10 Ind. Cas. 477 : 33 A. 356 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427 : 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 : 38 I.A. 87 , a Privy Council case. The passage he relied on is a sentence which runs as follows:--'In the present case, Khairati Lal acquired no right from the daughters of Daulat for 'the compromise', to use their lordships' language in Rani Mewa Kuwar v. Rani Hulas Kuwar 1 I.A. 157 : 13 B.L.R. 312 : 3 Sar. P.C.J. 314 , 'is based on the assumption that there was an antecedent title of some kind in the parties and the agreement acknowledges and defines what that title is.' 'Turning to Rani Mewa Kuwar v. Rani Hulas Kuwar 1 I.A. 157 : 13 B.L.R. 312 : 3 Sar. P.C.J. 314 , I find their lordships say at page 166, after the sentence quoted in Khunni Lal v. Govind Krishna Narain 10 Ind. Cas. 477 : 33 A. 356 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427 : 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 : 38 I.A. 87 : 'The claim does not rest on contract only but upon a title to the land acknowledged and defined by that contract which is part only of the evidence of the appellant to prove her title and not all her case.' That seems to me to allow that the document is admissible in evidence either as a contract to acknowledge an existing title or perhaps as evidence in the nature of an admission. At any rate, in my opinion, it is only part of the case of the appellant and it is not a conclusive document on which we can declare rights with regard to immoveable property.
2. With regard to moveable property in the suit, no doubt the registration objection would not apply, but I gather from the learned Judge's judgment that, besides the plea of want of registration, it was alleged that the document was executed by the next friend in consequence of a misrepresentation made to her and of her negligence. That being so, I think we must send the case back for re-hearing although the learned Judge has dealt with most of the other evidence. We think that, for this Court satisfactorily to deal with the matter, we ought to have the opinion of the learned Judge on the force of the evidence as a whole and it may be that, considered in the light of documents which we have now held admissible, his former opinion as to the rest of the evidence would perhaps require modification and we think that this is a process which ought to be gone through by the Court of the first instance.
3. We, therefore, remand the case for rehearing. The appellant will have his costs of this appeal and the costs incurred in the Court below will be in the discretion of the Trial Judge.
4. The re-hearing will be confined to Items Nos. 3, 5, 6 of Schedule I and Schedule II. As regards the other items in the plaint Schedule, the decree of the Original Side will be confirmed.
5. The parties will pay and receive proportionate costs.