VIKRALA RAMACHANDRACHARYULU Vs. VIKRALA SRIMATH RANGACHARYULU

JUDGEMENT

(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 1 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 1 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 1 plaintiff was the present 1 defendant, the 2nd plaintiff was the present 2nd defendant's adoptive father and the 3 plaintiff was the present plaintiff's uncle. Before filing the said suit, the three plaintiffs therein entered into an agreement dated 5 August, 1907, Ex. EE, under which it was agreed that in consideration of the 3 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 3 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 25 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 5 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 25 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 3 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 4 plaintiff, and the 3 plaintiff died and his son, that is the present plaintiff, was added as the 5 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 1 plaintiff and one-third of the 4 plaintiff, but only 1/6 instead of 1/3 of the 5 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 5 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 1 and 2nd appellants did not wish to continue the appeal and the deficient stamp duty was paid only for the 3 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 3 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 appellantsbroke away from the 3 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 7 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/s. Ramamma (1912) I.L.R. 37 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/s. Theethan (1889) I.L.R. 121 505 it was held that a mere agreement does not require registration and is admissible for the purpose of obtaining specific performance. In Nagappa V/s. Devu (1891) It R 14 M 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/s. Umesh Chandra Banerjee (1910) 15 C.W.N. 375. The same view is taken in Indar Singh V/s. Munshi (1919) I.L.R. 1 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/s. Rajangam Aiyar (1922) I.L.R. 46 M. 373 at. 381 : 44 M.L.J. 745 (P.C.). Whatever view we take therefore of Exs. EE and FF they are not inadmissible for want of registration.