1. This appeal had come up before this Court on an earlier occasion, when, as per my learned predecessor's order dated 9-6-1953, the lower appellate Court was directed to take action under Order 23, Rule 3 and to submit its findings to this Court. In pursuance of that order, the Senior Subordinate Judge of Mahasu has made an inquiry into the alleged compromise. His findings are:-- Firstly, that the parties arrived at a, compromise and that its terms are embodied in Ex. P. A. Secondly, that the compromise was lawful, and, thirdly, that the compromise did not need registration or to be stamped. In view of his findings, the Senior Subordinate Judge was of the opinion that the suit had been 'completely adjusted.' Thereupon, he goes on to remark:--
'Since the compromise deed includes properties that are not included in the suit, the parties will have to fall back on the compromise deed and act or get enforced their rights and liabilities arising therefrom. So far as the present suit is concerned, the same in my opinion stands adjusted.'
2. Objections to the report of the lower appellate Court have been filed by the respondent, but not by the appellant. The appellant, however, was allowed, during the course of arguments, to show cause against the report of the Senior Subordinate Judge.
3. I have heard learned counsel for the parties at great length. As far as the factum of compromise is concerned, I am of the opinion that the Court below has rightly held that the compromise deed, Ex. P. A, was voluntarily executed by the parties and that the plea of undue influence, set up by Gyan Chand, has not been substantiated. The terms of the compromise, as set forth in Ex. P. A, were read over to me several times during the course of arguments. I again agree with the Senior Subordinate Judge that there is nothing in this compromise, which can be regarded as anything but lawful within the meaning of Order 23, Rule 3, Civil P. C.
4. This, however, does not finally dispose of the matter. It was, vehemently, urged by the learned counsel for the respondent that the document, Ex. P. A, was compulsorily registrable, since it operates to create, declare, assign, limit or; extinguish rights in immovable property of the value of more than Rs. 100/-. This not having been done, it is contended that the document is inadmissible in evidence under Section 49, Registration Act. A similar objection, as to the admissibility of the document, was made on the ground that it was not properly stamped (the document bearing only -/8/- stamp).
5. Learned counsel for the appellant urged that the document was not compulsorily registrable, as it was a petition to the Court to record a compromise. Reliance was placed, in this connection, on the provisions, of Section 17(2)(vi), Registration Act. The Senior Subordinate Judge was of the opinion that the document, Ex. P. A, could be treated as an application under Order 23, Rule 3. He has also referred to--'Hari Chand v. Magi Mal', AIR 1917 Lah 282 (2) (A) and 61 Ind Cas 118, corresponding to 'Chellaram v. Kimatram', AIR 1920 Sind 101 (B). In my opinion, however, the document, Ex. P. A, cannot be treated to be an application under Order 23, Rule 3. In the first place, the document is not addressed to any Court. It is true that in the body of the document there is a recital that parties would get all pending civil and criminal cases consigned to the record-room. That would not, however, in my opinion, convert the document into a petition meant to be presented to a Court. In AIR 1917 Lah 282 (2) (A), the facts were that the compromise deed was headed 'tasfianama ba adalat, District Judge, Ludhiana'. It then described the parties in detail and after referring to dispositions of the properties between the parties, concluded with the following passage:--
'Lihaza yeh tasfianama likh diya keh bamujab iske digri bahaq 'Hari Chand' mudai barkhilaf 'Maghi Mal' wa 'Chiman Lal' muda alehien jaidad mundarja bala ki jiski tashrih Hari Chand mudai ko deni ki upar karigai hai bila kharcha adalat dijawe.'
In the peculiar circumstances of that case, their Lordships of the Lahore High Court held that the intention of the parties was that the document should be presented to the Court in order that a decree should be passed in accordance therewith and being a petition addressed to the Court, it did not require registration. In the present case, however, the document, Ex. P.A. as already shown, does not show that it was meant to be presented to a Court of law to enable it to pass a decree in its terms. On the other hand, it appears to be an agreement outside Court, whereby certain rights were created or extinguished. The conduct of the appellant, as remarked by the learned Senior Subordinate Judge, who heard the appeal (Pt. Om Parkash), further shows that the document, Ex. P. A, was not meant to be used as petition to Court. It is significant that although the document, Ex. P. A, was executed on 19-12-1948, the plaintiff did not bring the fact of compromise to the notice of the Court either on 23-12-1948 or 17-2-1949. Ex parte proceedings were taken against the defendant on 17-2-1949, whichwere set aside on 27-7-1949. Even after that, the document, Ex. P. A, was not filed in the Court, nor was the Court moved to record the compromise under Order 23, Rule 3. The document was filed in Court, for the first time, on 24-12-1949, i.e., more than a year after its execution. Consequently, I am of the opinion that it cannot be treated as a petition to the Court under Order 23, Rule 3.
6. Coming to the other authority, cited by the Senior Subordinate Judge, on remand, AIR 1920 Sind 101 (B), the facts were that during the pendency of the suit relating to settlement of partnership business, a plaintiff wrote a letter to certain defendants directing them to proceed to Shikarpur and, after consulting his lawyers to get the case in Sukkur Court and the appeal in the Karachi Court withdrawn. Under those circumstances, it was held by the former Judicial Commissioner's Court of Sind that inspite of lack of registration, the Court, if it accepts the compromise, could act upon it. In my opinion, however, the facts of the present case are clearly distinguishable.
7. Learned counsel for the respondent cited the following authorities:-- (a) 'Chhajju v. Gokul', AIR 1923 All 338 (C). There, following an earlier ruling reported in--'Narain Das v. Dhania', AIR 1916 All 366 (D), Sulaiman J., held that:
'An unregistered compromise has no binding effect as, a document which purports or operates to create or extinguish any right or interest in immovable property worth Rs. 100/-, even though it records a family settlement is compulsorily registrable.'
(b) 'Sabitri Thakurain v. P. A. Savi', AIR 1933 Pat 306 (E), where a Division Bench of that High Court, while holding that a petition of compromise filed in a Court does not need registration, pointed out that there was a distinction between a petition being used in the Court to which it is presented and a petition, which by itself, creates or extinguishes a right.
(c) 'Mt. Jileba v. Mt. Parmesra', AIR 1950 All 700 (F), where a Division Bench of that High Court indicated as follows:
'If a family arrangement is arrived at orally and information of its terms is given in writing to a Court, that writing would not be deemed to be a deed of family arrangement and would not require to be registered. But where the application presented to the mutation Court contains all the terms of the compromise and purports to be the document of compromise itself and not merely conveying information to the Court of the terms of a previously completed oral compromise, the document ought to be registered and if not registered, cannot be admitted in evidence, nor can oral evidence of its contents be given in evidence, in view of Section 91, Evidence Act.'
(d) 'Lehna Singh v. Rulia', AIR 1953 Punj 48 (G), where a Division Bench of that High Court held as follows:
'Where the terms of a compromise arrived at between the parties causing a change of legal relation to the property divided amongst all the parties to it are embodied in a document, the document is not, merely a recital of past transactions but itself declares rights in immovable property, which is covered by Section 17. And, therefore, the document necessarily requires registration.'
3. On the analogy of the latter set of rulings. I would hold that the document, Ex. P. A,is neither a petition of compromise presentedto a Court nor a recital of past transactions, onthe other hand, itself declares rights in immovable property worth more than Rs. 100/- and, consequently, it requires registration under Section 17, Registration Act. On the same analogy, it would also require to be properly stamped under the provisions of the Stamp Act. This not having been done, it is inadmissible in evidence and no decree could be passed on its basis.
9. I also heard learned counsel for the parties on the merits of the appeal. I am in full agreement which the lower appellate Court in holding that the plaintiff had failed to prove that the land in dispute was his self-acquired property. In this connection, reference may be made-to the order of the Raja Sahib of Bushahar, Ex. D.M., which shows that the land was granted to both the brothers in equal shares. The sale deed, Ex. P. B, executed by Shib Datt in favour of the plaintiff is not conclusive because at that time the plaintiff was the 'karta' of the joint family.
Further, a portion of that property was gifted by Kahan Chand to Kanwal Ram, & Chand Ram, close collaterals, and the remaining portion was gifted by Kahan Chand to his father. There, is considerable force in the argument of the learned counsel for the respondent that had the land been the self-acquired property of the plaintiff, it was hardly likely that he would have so soon afterwards, gifted a portion of that property to his father. After the death of the plaintiff's father, the land was mutated in favour of both the brothers jointly, a highly significant fact.
10. Under these circumstances, the appeal must fail on its merits as well.
11. The result is the appeal is rejected withcosts.