Kameshwar Singh and Others vs Chaudhury Rajbansi Singh @ Raja Singh

Meredith, J.—This is an appeal by defendants to a partition suit in which a preliminary decree has been passed.

A preliminary point has been raised by the appellants. On nth February 1941, a petition was filed by both parties to the effect that they had agreed that their dispute should be referred to three named arbitrators, who were to submit their award by 3lst March 1941, and it was stipulated that in the event of disagreement the opinion of the majority would prevail. The appeal was then adjourned by the Court to enable the parties to compromise.

No award was filed until 30th July 1941, when a so-called award was put in by two of the arbitrators without the signature of the third, who has filed an affidavit saying that the arbitrators never met and discussed the matter, and he had had no notice from the other arbitrators.

We are asked to treat the so-called award of the arbitrators as an adjustment of the suit within the terms of Order 23, Rule 3, Civil P.C., and order the compromise to be recorded.

In my judgment this cannot be done. In the first place, the so-called award is no award. It has not been signed by one of the arbitrators, and it does not even contain a statement that all three arbitrators had ever consulted together and sat as arbitrators. The third arbitrator asserts that there was no arbitration to which he was any party. In the circumstances this is no award at all. Secondly, the so-called award was filed long after the time fixed. There was no provision for any extension of the time in the agreement. There was, therefore, no arbitration within the time agreed upon by the parties.

In the third place, there are minors concerned in the appeal, and no permission of the Court to compromise on behalf of the minors was ever taken by their guardians.

Having regard to these circumstances it would, in my view, be quite improper to treat the suit as having been adjusted under Order 23, Rule 3, upon the basis of the so-called award. Even if the petition of 14th February be regarded as a valid agreement to refer the case to arbitrators subject to certain conditions, those conditions were never fulfilled, and have now become impossible of performance. The agreement, if any, has, there-fore, become nugatory. The appellants rely upon Ramadhar Rai v. Subedar Pathak AIR 1932 Pat. 205 but that case is really against the appellants'' contention, since it indicates that they can get a decree only within the terms of Order 23, Rule 3, or not at all. There has, however, plainly been no concluded adjustment of the suit between the parties. At most there was an agreement to refer to arbitration, which has since be-come nugatory.

I now turn to the merits of the appeal. The plaintiff sued for partition, claiming that his share was one-third, and that that was his share was conceded. The main defence set up was that there was an agreement in the year 1935 between the plaintiff and defendants 2, 5 and 6 by reason of which any suit for partition by the plaintiff was not maintainable.

This agreement (Ex. A) is dated 16th September 1935, and in unregistered. As questions of some difficulty have arisen regarding its effect, it is advisable to set it out in full:

We, the executants are members of a joint family governed by the Mitakshara School of Hindu law and are joint in mess and business. In 1332 Fs., there was a criminal case, in which we, the executants Nos. 2, 3 and 5 were accused. I, the executant No. 2, was sentenced to undergo imprisonment for three months. I, the executant No. 3, for seven years and I, the executant No. 5, for one year and a half. Loans on interest were taken from several persons to meet the expenses of the case. When I, the executant No. 3, was in the jail, I, the executant No. 2, made collection and kept the income in my custody. After returning from the jail, the executant No. 3 said to me, the executant No. 2 that six years were passed and the loans, that were taken to meet the expenses of the criminal case, were not still paid out of the income and asked me, the executant No. 2, to render account of income and expenditure. On account of this there was an ill-feeling among us, the executants and there is a dispute among us, the executants regarding this. At the intervention of our well-wishers, an adjustment of account was made and a large sum of money was found due by me, the executant No. 2 and there is also a large sum of dues that have not been repaid. Hence, with the advice of our well-wishers it has been settled among us, the executants that we should continue to remain as members of a joint family, and should not separate from one another and should not partition the properties, so that we may manage to repay the loans conveniently, and it has been settled among us that if any one of us, the executants fail to have a son, the remaining members of the joint family, in that circumstance, on his death, shall enter into possession of the entire joint properties and repay the loans with the same. Accordingly, we, the executants accepted this. Hence we, the executants, of our own free will and accord, without pressure and coercion by one another, do hereby declare and execute this deed to the effect that we, the executants shall not separate from one another and shall not partition any property. We, the executants, shall not have the right and power to partition the properties or to separate from one another. Hence we, the executants, executed this ekrarnama so that it may be of use when required.

The contention of the defendants was that the plaintiff, having entered into this agreement to remain joint, could not sue for partition. The learned Subordinate Judge deals with this contention briefly by saying that the deed showed that by virtue of the agreement the parties would remain Joint for an indefinite length of time. As such it was invalid, because it introduced a restriction repugnant to the interest of the coparcener and inconsistent with Hindu law, and it was therefore not binding on the parties thereto.

It has been argued, in the first place, for the appellants that the agreement was merely to remain joint until the family debts had been paid off, but, in my judgment, it is impossible to interpret the agreement in this way. The payment of the debts is stated as the motive for the agreement, but is no where stated as fixing its term.

Next, however, it is contended that in any view it was not invalid. This contention is, in my opinion, correct. The agreement does not purport to create any perpetuity. It merely binds the parties thereto personally not to claim partition; in other words, it is in substance an agreement for the lifetime of the parties. It is also for consideration. It is evident that there was a dispute, a large sum was found due from the executant No. 2, (the present plaintiff), and the other members of the family had called upon the plaintiff to render accounts. In consideration of this agreement, which in fact was a family arrangement, the other members of the family refrained from demanding accounts from the plaintiff. Apart from that, there was consideration in any view, since there were mutual promises. The plaintiff agreed not to claim partition in consideration of the fact that the defendants mutually agreed not to claim partition from him. If this compromise was not illegal on the plaintiff''s side, neither was it on the defendants'' side, and so the consideration was good.

The balance of judicial authority is unquestionably in favour of the view that such an agreement is not invalid as repugnant to Hindu law. There is one old Bombay case Ramlinga Khanapure v. Viru Pakshi Khanapure (sic) 7 Bom. 538, in which it was held that an agreement between coparceners never to divide their property is invalid by the Hindu law as tending to create a perpetuity. But that decision was based upon the view of the learned Judges with regard to the particular agreement in question that it did tend to create a perpetuity. It cannot apply to a case where upon its terms the agreement creates no perpetuity, as in the present case.

Moreover the High Courts of Calcutta, Madras and Allahabad are all agreed that an agreement of this kind is not invalid, though it will bind only the parties thereto, and not their successors or assigns. For example, in Krishnendra Nath Sarkar v. Debendra Nath Sarkar 12 C.W.N. 793, where the whole question is very fully discussed, it was held that an agreement between the members of a Hindu family not to come to partition may be binding on the immediate parties thereto, and in the case of such a family arrangement, if sufficient motive for the arrangement is proved, the Court will not consider the quantum of consideration too nicely. This was a case in 1906. In 1919, in Rup Singh v. Bhabhuti Singh AIR 1920 All. 341 the Allahabad High Court held that the members of a joint undivided Hindu family can bind themselves for their own lifetime not to claim partition of the joint family property. Finally, in a comparatively recent case (1933) the Madras High Court in Arumugha Chetty v. Ranganathan Chetty AIR 1933 Mad. 847 held that coparceners in a joint Hindu family can agree for consideration that for a certain time or until a certain event or for their lives they will not exercise their right to divide. This also is a well considered decision and it is to be noticed that the learned Judges therein expressly refer to the Bombay view, and dissent from it.

There seems to be no decision of the Patna High Court upon the point, but I am satisfied that an agreement such as that with which we are dealing in the present case is in no way illegal, and is binding upon the parties thereto. This is the view accepted in Trevelyan''s Hindu Law (Edn. 3, pp. 354-355) and in Mayne''a Hindu Law (Edn. 10, page 554).

Upon this view, it must follow that the respondent''s suit was not maintainable, and should have been dismissed. It is, however, argued for the respondent that the agreement cannot be relied on, aince it has not been registered. In support of the proposition that such a deed of family arrangement needs registration three cases have been cited. They are Thakur Umrao Singh v. Thakur Lachman Singh 35 All. 344 , Radha Ballabha Vs. Bohra Makhan Lal and Mt. Mahadei Kunwar Vs. Padarath Chaube and Another . In Radha Ballabha Vs. Bohra Makhan Lal , for example, it was held that if such family arrangement was in fact "reduced to the form of a document" registration (when the value is Rs. 100 or upwards) is rendered necessary by Section 17, Registration Act, and the absence of registration makes the document inadmissible in evidence, u/s 49, Registration Act, in proof of the arrangement; and u/s 91, Evidence Act, no other proof thereof can be given.

One cannot quarrel with the principle laid down in these rulings, but, in my view, they have no application to an agreement not to claim a right of partition. All the cases relate to agreements declaring interests in specified shares of immovable property, where it is quite possible to assess at a money value the right declared or limited. Such is not the case where only a right to claim partition is involved.

The argument is that the agreement needs registration u/s 17(1)(b), Registration Act, as limiting, if not extinguishing, one of the plaintiff''s rights in the joint family property, namely, his right of partition. This joint family immovable property has been valued in the appeal at Rs. 53,000.

In order to determine whether this argument can be accepted it is necessary to examine carefully the wording of Section 17(1)(b). It is as follows:

The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act 16 of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, on this Act came or comes into force, namely, other non-testamentary 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 one hundred rupees and upwards, to or in immovable property.

It is plain upon this wording that it is the right, title or interest affected which has to be of the value of Rs. 100 and upwards, and not the immovable property itself.

The present agreement does not affect in any way any interest in the immovable property other than the right to claim partition thereof, that is, merely a right of changing the mode of enjoyment of the property. It is a right to which, in my view, no definite money value can be assigned, and it is, therefore, impossible to hold that it is a right of the value of Rs. 100 and upwards. If the plaintiff in the present case asserts that he values his right to change his mode of enjoyment of the property at only Rs. 50, then no one can say that he is wrong, even though the property itself may be valued at many thousands.

That I am right in this view is, in my judgment, apparent from numerous decisions under the Court-fees Act. It is well settled that suits for partition, where the plaintiff is already in possession, fall under Article 17(vi), Court-fees Act, and indeed the plaintiff in the present case has paid a court-fee of Rs. 15 only, under that provision. This provision of the Court-fees Act comprises

every other suit where it is not possible to estimate at a money value the subject-matter in dispute, and which is not otherwise provided for by this Act.

Two conditions are necessary before a suit can be held to fall under this provision, (1) that it is not provided for elsewhere in the Act, and (2) that it is not possible to estimate at a money value the subject-matter in dispute, Kanji Mal v. Panna Lal AIR 1914 Lah. 507.

The fact, therefore, that a suit for partition, where the plaintiff is in possession and the only question is his right to change the mode of enjoyment, is held to fall under Article 17(vi) indicates clearly that in the view of the Courts the right in suit cannot be assessed at any money value. Indeed Article 17(vi) cannot apply to a case where the subject-matter of the claim has any money value, Sabir Husain and Another Vs. Farzand Hasan and Others, .

To quote Garth C.J. in an old Calcutta case, Kirty Churn Milter v. Aunath Nath Deb 8 Cal. 757.

If the plaintiff''s suit had been to recover possession of, or establish his title to, the share which he claims in the property, he must have paid an advalorem stamp-fee upon the value of that share. But, as I understand, he is already in possession of his share, and all that he wants is to obtain a partition, which is merely, as explained by the learned Judges in the case of Rajendra Lall Gossami v. Shama Churn Lahoory 5 Cal. 188 to ''change the form of his enjoyment'' of the property, or in other words, to obtain a divided instead of an undivided share. It seems to me impossible to say what will be the value to the plaintiff of this change in the nature of his property.

Again in Gill v. Varadaraghavayya AIR 1920 Mad. 585 Wallis C.J. and Sadasiva Ayyar J. observed:

There is a long course of decisions in Calcutta that a suit...for a partition by a plaintiff alleging himself to be already in joint possession is incapable of valuation within the meaning of Schedule 2, Article 17(vi).

I refer to the fact that such suits have always been held to fall under this particular provision of the Court-fees Act only by way of illustration of my view. I realise that the Court-fees Act can form no final basis for deciding valuation for purposes of other Acts, such as the Registration Act; but that does not affect the question. The basis, of my view, is the general proposition that it is impossible to put a money value upon a mere right to change a mode of enjoyment. Its value to any particular person can only be the additional enjoyment which he could get from the change. It might be worth much to some, little or nothing to others. It has no money value in any general sense.

It has been suggested, however, that the agreement comes within Section 17(1)(b), Registration Act, because it "declares" the right of all the parties thereto in the joint family property itself, and even the declaration of the right, if that right is more than Rs. 100 in value, involves the necessity for registration.

The answer to this argument has been provided by the Privy Council in AIR 1932 55 (Privy Council) , wherein their Lordships say with regard to the true construction of Section 17, Registration Act:

Their Lordships have no doubt that this track of decision is right. Though the word ''declare'' might be given a wider meaning, they are satisfied that the view originally taken by West J. is right. The distinction is between a mere recital of a fact and something which in itself creates a title. The distinction has been acted on in cases connected with mortgages by deposit of documents of title.

In other words, the word "declares" as used in Section 17(1)(b) must mean something more than a mere recital. The word is used only in reference to declarations, which form the basis of the title of the parties. If there is anything in the agreement (Ex. A) declaring the rights of the parties in the joint property it is merely by way of recital, and not as affecting title.

In my judgment a mere agreement by a coparcener not to claim his right of partition needs no registration irrespective of the value of the joint family property. In this view I must hold that the agreement set up by the appellants in the present case formed a bar to the suit, which was consequently not maintainable.

I would, therefore, allow the appeal, and dismiss the suit with costs throughout.

Chatterji, J.

I regret I am unable to agree with my learned brother''s finding that the ekrarnama, Ex. A, did not require registration. As the question turns on the interpretation of this document, it is better to reproduce it in full:

We, the executants, are members of a joint family governed by the Mitakshara School of Hindu Law and are joint in mess and business. In 1332 Fs., there was a criminal case, in which we, the executants Nos. 2, 3 and 5 were accused. I, the executant No. 2, was sentenced to undergo imprisonment for three months, I, the executant No. 3, for seven years and I, the executant No. 5, for one year and a half. Loans on interest were taken from several persons to meet the expenses of the case. When I, the executant No. 3 was in jail, I, the executant No. 2 made collection and kept the income in my custody. After returning from the jail, the executant No. 3 said to me, the executant No. 2 that six years were passed, and the loans, that were taken to meet the expenses of the criminal case, were not still paid out of the income and asked me, the executant No. 2 to render account of income and expenditure. On account of this there was an ill-feeling among us, the executants and there is a dispute among us, the executants regarding this. At the intervention of our well-wishers, an adjustment of account was made and a large sum of money was found due by me, the executant No. 2 and there is also a large sum of dues that have not been repaid. Hence, with the advice of our well-wishers it has been settled among us, the executants, that we should continue to remain as members of a joint family and should not separate from one another and should not partition the properties, so that we may manage to repay the loans conveniently and it has been settled among us that if any one of us, the executants, failed to have a son, the remaining members of the joint family, in that circumstance, on his death, shall enter into possession of the entire joint properties and repay the loans with the same. Accordingly, we, the executants, accepted this. Hence, we, the executants, of our own free will and accord, without pressure and coercion by one another, do hereby declare and execute this deed to the effect that we, the executants, shall not separate from one another and shall not partition any property. We the, executants, shall not have the right and power to partition the properties or to separate from one another. Hence, we, the executants, executed this ekrarnama so that it may be of use when required.

Evidently this document embodies a family arrangement by which the parties bound themselves to remain undivided both in status and in property. The executant No. 2 is the present plaintiff. It is clear, so far as he is concerned, that he agreed to give up his right to obtain partition in consideration of the other parties to the deed giving up their claim against him for the "large sum of money" that was found due from him upon an adjustment of account. It is conceded on both sides that the ekrarnama, if it required registration, would come u/s 17(1)(b), Registration Act (16 of 1908), which provides that the following documents shall be registered:

Other non-testamentary 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 one hundred rupees and upwards, to or in immovable property.

It is not disputed that the right to partition which is an essential element of joint ownership, is a right in immovable property. By the deed Ex. A the parties gave up their right to obtain partition. But for this deed they could exercise their right of partition at any moment they liked. This right was taken away by the deed. The deed thus purports to extinguish that right. The deed also purports to limit rights in immovable property, because owners of joint property possess a bundle of rights in the property including the right to obtain partition, and if the right to obtain partition is taken away, their rights in the property are thereby limited. Another view is equally possible, namely, that the deed purports to declare a right in immovable property, because it expressly declares that "we, the executants shall not separate from one another and shall not partition any property." This declaration is not a mere recital of fact. Indeed the parties were in fact joint at the time, but the deed declares that they will have the right to remain joint. This is a right which the parties could not claim without the deed. To remain joint so long as the parties wished is one thing, while the right to remain joint even against the wish of others is quite another. In the one case continuance of jointness depends on the will and pleasure of the parties, while in the other case it is a right which they are bound to respect. The deed purports to declare that the parties will have this right. It may further be said that this right is conferred by the deed, and therefore it purports to create that right. Thus the deed purports to "create," "declare," "limit," or "extinguish" right in immovable property, as contemplated by Section 17(1)(b), Registration Act.

The next question is whether the right so affected by the deed is of the value of one hundred rupees or upwards. Upon the plain wording of Section 17(1)(b), Registration Act, it is obvious that the "right, title or interest" affected by the deed, and not the immovable property itself, must be of the value of one hundred rupees and upwards. The immovable properties of the parties are mentioned in Schedule B of the plaint. This appeal which relates to Schedule B is valued at Rs. 53,000. It, however, appears that items 26 and 81 of Schedule B are dues of the joint family amounting to Rs. 16,196.3-0 and Rs. 900 respectively. Excluding the total amount of these dues, the total value of the immovable properties comprised in the remaining items of Schedule B would be a little over Rs. 35,900. The plaintiff''s share is admittedly one-third. It is suggested that it is not possible to assess any money value on the right to obtain partition, because partition merely alters the mode of enjoyment of the property. The deed Ex. A purports to affect merely the right to obtain partition, and therefore it cannot be said to affect any right of the value of one hundred rupees or upwards in immovable property. This argument is based on the analogy of Schedule 2, Article 17, Clause (vi), Court-fees Act, which prescribes a fixed fee of Rs. 15 for

every other suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by this Act.

It is well settled, according to the decisions of almost all the High Courts, that a plaint in a partition suit is chargeable with a fixed amount of court-fee under this article. The reason for these decisions is that partition merely changes the form of enjoyment. The Court-fees Act is a fiscal enactment. All fiscal enactments must be strictly construed. In enactments like Court-fees Act and Stamp Act artificial methods are adopted for fixing the court-fee or stamp duty payable. In my view provisions of the Court-fees Act cannot be made use of, by way of analogy, in construing the provisions of other statutes relating to rights in property, and much less in construing documents executed by parties. In my judgment, the ekrarnama Ex. A must be construed on its own terms. As I have already indicated, the document makes it clear that the consideration which the plaintiff received in return for his giving up the right to obtain partition was an abandonment by the other parties of their claim in respect of the "large Bum of money" that was found due to them from him after adjustment of account. The "large sum of money" referred to in the document did certainly exceed rupees one hundred. This is also borne out by the evidence on the record. Defendant 2 (D.W. 1) says in his examination-in-chief: "The plaintiff was removed from the office of karta as he wasted Rs. 22,000 and did not submit an account of the money." In cross-examination he says: "At the date of the deed of agreement we demanded the sum of Rs. 21,000 from the plaintiff." D.W. 2 who is an attesting witness to the deed Ex. A says in his cross-examination:

There was some rendition of account by the plaintiff.... Out of the incomes shown the expenditures did not agree. Some expenditures were shown. The difference of Rs. 22,000--23,000 was found.

Even making some allowance for exaggerations likely to be made by these witnesses, there can be no doubt that the amount found due from the plaintiff came to many hundreds, if not thousands. In the face of the recital in the deed Ex. A, coupled with the aforesaid statements of D.W. 1 and D.W. 2, can it be suggested for a moment that the right which the plaintiff gave up by the deed did not exceed Rs. 100 in value? The parties to the deed themselves thought that this right was far in excess of Rs. 100 in value. We may look at the deed Ex. A from another point of view. It is not disputed that the deed purports to "limit" right in immovable property within the meaning of Section 17(1)(b), Registration Act. Now, what is the right which it purports to limit? Is it the right to partition? Certainly not. What the deed purports to do is that it takes away the right to partition and thereby it limits the rights of the parties in joint property. In other words, it purports to limit, not the right to partition, but the entire rights in joint property. The value of the entire rights must be the value of the property itself which" admittedly far exceeds rupees one hundred. In this view the deed Ex. A purports to limit the rights of the parties, of the value of more than one hundred rupees, in immovable property. I am, therefore, of opinion that the ekrarnama Ex. A required registration. Not being registered, it cannot affect the immovable properties comprised therein, nor can it be used as evidence, according to Section 49, Registration Act. It is, therefore, no bar to the plaintiff''s claim for partition.

In this view, it is unnecessary to consider whether the agreement is illegal or invalid. I may, however, observe that the agreement consists of two parts, (1) that the parties shall remain joint in status and (2) that they shall not partition their properties. The present suit is really concerned with the second part, and the matter is covered by the decisions in 12 C.W.N. 793, AIR 1920 All. 341 and AIR 1933 Mad. 847 which are relied upon by the learned advocate for the appellants. Accord, ing to these decisions, an agreement not to divide properties is valid and binding on the parties to it. I am not prepared to dissent from these decisions, though a contrary view was expressed by the Bombay High Court in (sic) 7 Bom. 538. But these decisions are of no assistance, so far as the first part of the agreement is concerned, because in none of those cases there was any agreement of this sort.

In the present appeal the question of the validity of such an agreement arises because of the fact that the plaintiff-respondent died during the pendency of this appeal, leaving a widow, who was substituted in his place. On her behalf it is contended that the agreement is not valid and binding on her, that the institution of this partition suit by her husband caused a severance of his joint status with the result that on his death his share devolved on her by inheritance, and that therefore she is entitled to continue the partition suit. But having regard to the scope of the suit, these questions cannot be allowed to be raised in these proceedings. The widow has been impleaded in this appeal as the legal representative of her deceased husband, and as such she can raise only such objections as could have been taken by her husband himself. In this view, it is unnecessary to consider the objections raised by her. It will, of course, be open to her to assert her rights, if any, by separate appropriate proceedings. As regards the appellants'' prayer for passing a decree under Order 23, Rule 3, Civil P.C., in terms of the award, I agree with my learned brother that it must be refused. In the view I take the appeal fails, and I would dismiss it with coats.

Fazl Ali, J.

This appeal which was originally heard by Chatterji and Meredith JJ. has been referred to me u/s 98, Civil P.C., as the learned Judges were divided in opinion on the following point: Whether the ekrarnama (EX. A) required registration? As this is the only point to be decided by me I shall confine myself to such facts as have an immediate bearing upon it. The ekrarnama (Ex. A) which is an unregistered document was executed by the members of a joint family and recites that they had agreed among themselves for certain considerations, which need not be set out here, that they shall not separate from each other and shall not partition the joint family property. Notwithstanding the agreement, however, the plaintiff-respondent, who was one of the executants of the deed, instituted the present suit for the partition of the joint family property. One of the grounds on which the suit was resisted by the defendants was that no decree for partition could be made as the parties had already agreed by the ekrarnama (EX. A) not to partition the property. The learned Judges who heard the appeal were agreed that the ekrarnama was binding on the parties thereto during their life time, but upon the question whether or not it required registration u/s 17, Registration Act, and, whether or not it was admissible in evidence they have expressed conflicting opinions. Meredith J. has expressed the view that the document did not require registration u/s 17, Registration Act, whereas Chatterji J. has held that it did require registration. The ekrarnama runs as follows:

We, the executants are members of a joint family governed by the Mitakshara School of Hindu law and are joint in mess and business. In 1332 Fasli there was a criminal case, in which, we the executants Nos. 2, 3 and 5 were accused. I, the executant No. 2, was sentenced to undergo imprisonment for three months. I, the executant No. 3 for seven years and I, the executant No. 5 for one year and a half. Loans on interest were taken from several persons to meet the expenses of the case. When I, the executant No. 3 was in jail, I the executant No. 2 made collection and kept the income in my custody. After returning from the jail, the executant No. 3 said to me, the executant No. 2 that six years were passed and the loans, that were taken to meet the expenses of the criminal ease, were not still paid out of the income and asked me, the executant No. 2 to render account of income and expenditure. On account of this there was an ill-feeling among us, the executants, and there is a dispute among us the executants, regarding this. At the intervention of our well-wishers, an adjustment of account was made and a large sum of money was found due by me, the executant No. 2 and there is also a large sum of dues that have not been repaid. Hence, with the advice of our well-wishers it has been settled among us, the executants, that we should continue to remain as members of a joint family, and should not separate from one another and should not partition the properties, so that was may manage to repay the loans conveniently, and it has been settled among us that if any one of us, the executants fail to have a son, the remaining members of the joint family, in that circumstance, on his death, shall enter into possession of the entire joint properties and repay the loans with the same. Accordingly, we, the executants, accepted this. Hence we, the executants of our own free will and accord, without pressure and coercion by one another, do hereby declare and execute this deed to the effect that we, the executants, shall not separate from one another and shall not partition any property. We, the executants, shall not have the right and power to partition the properties or to separate from one another. Hence, we the executants, executed this ekrarnama so that it may be of use when required.

It is common ground that for the purpose of deciding whether this document requires registration all that has to be seen is whether it belongs to the class of documents referred to in Section 17(1)(b), Registration Act, these being non-testamentary instruments (other than gift of immovable property) 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 one hundred rupees and upwards, to or in immovable property. Chatterji J. has expressed the opinion that the ekrarnama purports to create, declare, limit as well as extinguish a valuable right in immovable property as contemplated by Section 17(1)(b), Registration Act, and he has arrived at his conclusion by the following process of reasoning:

It is not disputed that the right to partition, which is an essential element of joint ownership, is a right in immovable property. By the deed Ex. A the parties gave up their right to obtain partition. But for this deed they could exercise their right of partition at any moment they liked. This right was taken away by the deed. The deed thus purports to extinguish that right. The deed also purports to limit rights in immovable property, because owners of joint property possess a bundle of rights in the property including the right to obtain partition, and if the right to obtain partition is taken away, their rights in the property are thereby limited. Another view is equally possible, namely, that the deed purports to declare a right in immovable property, because it expressly declares that ''we, the executants shall not separate from one another and shall not partition any property.'' This declaration is not a mere recital of fact. Indeed the parties were in fact joint at the time, but the deed declares that they will have the right to remain joint. This is a right which the parties could not claim without the deed. To remain joint so long as the parties wished ia one thing, while the right to remain joint even against the wish of others is quite another. In the one case continuance of jointness depends on the will and pleasure of the parties, while in the other case it is a right which they are bound to respect. The deed purports to declare that the parties will have this right. It may further be said that this right is confirmed by the deed, and therefore it purports to create that right. Thus the deed purports to ''create,'' ''declare,'' ''limit'' or ''extinguish'' right in immovable property as contemplated by Section 17(1)(b), Registration Act.

The reasoning appears at first sight to be almost irresistible and it seems that Meredith J. also did not seriously question the view that the agreement at least limited, if not extinguished, one of the plaintiff''s rights in the joint family property, namely, his eight to claim partition. He held, however that the case did not come within Section 17(1)(b), Registration Act, because the right to claim partition was a right to which no definite money value could be assigned and so it was impossible to hold that it was a right of the value of Rs. 100 and upwards. Chatterji J. on the other hand, held that a money value could be assigned and that in the present case the right in question was decidedly of the value of more than Rs. 100. Speaking for myself, I doubt whether it will be correct to say that the ekrarnama either creates, declares, limits or extinguishes a right to or in immovable property. As long ago as in 1881 West J. pointed out in Sakharam Krishnaji v. Madan Krishnaji 5 Bom. 232 that these words imply "a definite change of legal relation to the property by an expression of will embodied in the document." This view must be taken to have been upheld by the Privy Council, because in AIR 1932 55 (Privy Council) Lord Dunedin after reviewing a number of cases made the following observation:

Their Lordships have no doubt that this track of decisions is right. Though the word "declare" might be given a wider meaning they are satisfied that the view originally taken by West J. is right.

In my judgment therefore in determining whether an instrument requires registration, the crucial test is to ask whether such an instrument purports or operates to bring about a change of legal relation in respect of some property. In my judgment if the legal relation in respect of the property in question remains the same after the document as it remained before, then no right, title or interest in a property can be said to be created, declared, limited or extinguished by it within the meaning of Section 17(1). It seems to me that the difficulty in this case has arisen owing to the use of such language as seems at the first sight to suggest that some right in the property has been given up by the parties. Mr. Jha, who appeared on behalf of the respondent, contended that in fact a very valuable right has been given up. He has pointed out that the right of partition is an important right, because after partition a member of a Hindu family can alienate property which he could not alienate while the property remained joint. He has also urged that on partition some members of the family such as a mother or a wife can be allotted separate shares and therefore the agreement not to partition the property is tantamount to depriving these members of such share as might have been allotted to them in the event of partition. In my opinion, however, the question must be decided upon broad principles without going into any legal niceties. I think that the essence of the agreement which I have to construe is that the parties shall continue to enjoy the property in the same way as they did before. If this view is correct, then it must follow that the parties have neither limited nor extinguished their right or interest in the property but they have merely entered into an arrangement that the status quo should be maintained. Under the document the parties continue to be the owners of the property as before and they continue to be in as full an enjoyment of it after the execution of the deed as they were before its execution. Can then a document which in substance incorporates an agreement to the effect that the property is to be enjoyed in future precisely as it is being enjoyed now be regarded as a document extinguishing or limiting the executants'' rights in the immovable property, merely because the intention to maintain the status quo is negatively expressed by stating that the parties shall not separate from each other or partition the property? If the document was meant to provide only for the maintenance of the status quo, then it follows that no fresh rights were created nor were old rights extinguished thereby and also that none of the parties really intended to enlarge the rights of others by limiting such right or rights as they themselves previously enjoyed. There is in effect no transfer of any right by one party in favour of another, nor is there any enlargement of any party''s rights at the expense of others.

In my opinion unless we take the view expressed by West J. as the correct exposition of the object of Section I7(1)(b), the scope of this provision will be so widened as to include every small act which an owner of property is at liborty to perform by virtue of his right of ownership. Instances of such acts might be multiplied, but I shall restrict my remark to one or two hypothetical cases only. Let us suppose that the members of a family agree among themselves that they will grow only sugarcane and no other crops on their land in a particular year. In one sense the agreement does operate to limit their right of ownership because as full owners they are at liberty to grow any crops. But I doubt if the framers of the Registration Act really intended that an agreement like this should be brought within the scope of Section 17. Similarly I doubt whether an agreement between two neighbours to fence their adjoining property can be regarded as an agreement purporting to limit their right though on a technical view of the Section such an agreement also may be said to be covered by the language used, because it restricts the right which an owner undoubtedly has to leave his land without any fence. Then again if two co-owners have the whim to declare that henceforward they will both go round their property only on horse back and not on foot, are they either extinguishing or limiting their right in the property in any real sense of the term? In my opinion, a distinction should be drawn between a right in or to property and such rights as are merely incidental to the ownership of property and are really in the nature of powers or options which every owner is free to exercise in dealing with his property in a particular way. The latter may be described as rights in relation to the property, but strictly speaking they are not rights in or to property which expression must be construed to be ejusdem generis with the expression title or interest along with which it has been used. Generally when a right in or to property is assigned, created, declared, limited or extinguished then there must be a definite change of legal relation to the property. If, on the other hand, merely incidental rights are limited or extinguished there may not be any change of legal relation to property.

In the present case, the right or interest which the executants of the ekrarnama possessed in the property in question was the right or interest which every coparcener has under the Hindu law in joint family property. The ekrarnama (EX. A) merely provides that such a right will continue and does not limit or extinguish the right in any way. I am fully aware that the point which I have to decide is a different one and the fact that there is almost total absence of authority on the subject makes it all the more difficult. The nearest case to the present one which I have so far been able to discover is the case in Abdul Samad Khan Khiladar v. Bibijan alias Hanifa Hathu AIR 1925 Mad. 1149. In that case one of the heirs of a deceased Mahomedan sued for the partition of his estate and obtained a decree. She did not execute the decree and in spite of the decree the co-sharers entered into an agreement to continue to hold the property as tenants in common without division. The question then arose as to whether the agreement required registration. Odgers J. in dealing with this question observed as follows:

I take the question of the fact of the agreement to be proved and I also take it that what is found to have really happened was that the parties simply agreed to go on as before. They had been co-owners before the declaratory decree; they agreed to ignore that, and they continued to live as they had lived for years together, each having title to a definite but undemarcated share of the property. Is this a matter requiring a registered deed?... There is thus no question of their status having become divided by the previous decree; they were never united or joint. A right to execute a decree does not appear to be a right in or to immovable property, but merely aright to apply for process of the Court in execution. It is, therefore, difficult to see how an agreement not to exercise that right can be said to fall within the meaning of Section 17, Registration Act.

In my opinion, this case is helpful on account of the emphasis which has been rightly laid on the fact that the essence of the transaction was that the parties had agreed to go on as before--they had been co-owners before--and they continued to live as they had lived for years together. In the absence of any other authority this case fortifies my view that there being no change in status in the present case the ekrarnama (Ex. A) did not require registration.

I may here mention another case which wont up before the Privy Council in 1937-- AIR 1940 222 (Privy Council) . In that case A had purchased the proprietary right in a village P subject to incumbrances. Subsequently X advanced money for partially clearing off the incumbrances with an option to acquire a half share in the village in lieu of re-payment of his loan. This option ho exercised later and though no conveyance was executed and the matter continued to rest on contract, yet thenceforward he enjoyed the half share of the profits of the village, Sometime afterwards differences arose between the parties and they were referred to certain arbitrators who gave an award fixing the sum to be paid to the heirs of X and also provided that the ownership of the second party in one half of property shall not cease till after the above sum together with interest be fully paid up. On these facts a question arose whether the award required registration u/s 17(1)(b), Registration Act. Now it seems to me that it might have been argued in that case that the rights of A who was the full owner of the property were limited by this award to this extent that the second party, namely, the heirs of X were allowed to continue in possession of the property until a sum specified by the arbitrators was paid and in fact the question that was actually argued was that the award purported to confer upon the second party a right, title or interest to or in one half of the village which commenced with the award and came to an end when the sum specified by the arbitrators had been paid. Their Lordships of the Privy Council, however, held that the arbitrators intended merely to provide that the status quo, that is, the contractual interest which arose from the exercise of the option, should remain unaltered until the sum specified by them had been paid. They definitely held that the document merely provided for the continuance of the status quo and not for the creation of a new condition of affairs. Thus, as I have already said, we must not, in the present document, look only to the negative form of the Clause which provides that the parties shall not separate or demand partition, but consider the true effect of it, which in my opinion, wa3 only to secure the result that the property shall continue to be enjoyed as before and there shall be no change in the status quo of the family. The parties in this case as members of a joint family had not only the right to partition the property but they had also the right or option to refrain from doing so. A document which merely states that they had exercised the latter option, cannot, in my opinion, be a document affected by Section 17(1)(b). If the document had merely provided that the parties shall not separate from one another and there had been no reference whatsoever to any property therein, the legal effect would have been the same, but I doubt if it could then be argued that the document, in spite of the fact that there was no reference to any property at all, still required registration. That being so, the mere fact that the legal consequences of such an agreement (agreement not to separate) were set forth in the document, should not, in my opinion, make it compulsorily registrable.

I will now briefly deal with the question as to whether the so-called right in property which this ekrarnama is said to have affected was worth Rs. 100 or upwards. On this point I am on the whole inclined to agree with Meredith J. The learned Judge dealing with the matter observes as follows:

The present agreement does not affect in any way any interest in the immovable property other than the right to claim partition thereof, that is, merely a right of changing the mode of enjoyment of the property. It is a right to which, in my view, no definite money value can be assigned, and it is, therefore, impossible to hold that it is a right of the value of Rs. 100 and upwards. If the plaintiff in the present case asserts that he values his right to change his mode of enjoyment of the property at only Rs. SO then no one can say that he is wrong, even though the property itself may be valued at many thousands.

This view seems to me to be fully supported by a long course of decisions which have laid down that suits for partition where the plaintiffs are already in possession fall under Article 17, Clause (vi), Court-fees Act, which prescribes a fee for suits where it is not possible to estimate a money value for the subject-matter of dispute and which is not otherwise provided by the Act. One of the leading cases on the subject is that in 8 Cal. 757 in which Garth C.J. very pertinently observes as follows:

If the plaintiff''s suit had been to recover possession of, or establish his title to, the share which he claims in the property, he must have paid an ad valorem stamp-fee upon the value of that share. But, as I understand, be i3 already in possession of his share, and all that ho wants is to obtain a partition which is merely, as explained by the learned Judges in 5 Cal. 188 to ''change the form of his enjoyment'' of the property, or in other words, to obtain a divided, instead of an undivided share. It seems to me impossible to say what will be the value to the plaintiff of this change in the nature of his property.

This view expressed by Garth C.J. is, in my opinion, the only view which can be taken on the subject. So long as the pro-party is joint, a coparcener is in enjoyment of the entire property. If he is not the karta of the family he has the benefit of enjoying this property without having to manage it himself and he can also get the benefit of the earnings of all the other members of the family in the event of those earnings being thrown into the joint hotchpot. An indolent member of the family may therefore attach much more value to such an enjoyment than to the exclusive enjoyment of a share, sometime a small share in the entire joint property, demanding individual labour and attention for its management. On the other hand, another member may attach more value to a separate share in the property for a variety of reasons some of which may be purely sentimental or based on grounds of expediency. He may do so because he cannot bear the tyranny of the karta or because, as we often read in the plaints of partition suits, the women of the family cannot pull together or because he attaches a special money value to the rights of absolute ownership which permits him to alienate the property allotted to him. What is the money value to be attached to the right of partition must, therefore, vary with individual cases and the only reasonable view which can be held is that the value of the right will not in every case be identical with the value of the property which a cosharer may get on partition because apart from other things the question which may have to be answered is "What about the value of the property which a cosharer loses on partition?" The decisions to which reference has been made are undoubtedly decisions under the Court-fees Act, but they are all baaed on the view that it is not generally possible to put a money value upon a mere right to select the mode of enjoyment of the property, I am, therefore, inclined to think that there is a good deal of force in the view expressed by Meredith J. on the subject.

It was pointed out to me that though the court-fee to be paid in a suit for partition is Rs. 15 only under Article 17, Clause (vi), yet after the partition has been effected the parties have to provide stamp on the value of the property allotted to them. The point, however, which has to be borne in mind is that this has to be done under a specific provision of the Stamp Act (Schedule I, Article 45, Clause (c)). Mr. Jha who appeared on behalf of the respondent advanced a somewhat novel argument before me. His contention was that the reference to me is incompetent, because the learned Judges who originally heard the case did not state in their respective judgments that the record of the case should be placed before the learned Chief Justice so that the point on which they had differed should be laid before a third Judge, but what the record of the case shows is that while one of the learned Judges said that the appeal should be dismissed, the other said that the appeal should be allowed. In order to understand the meaning of this argument reference to Section 98, Clauses (1) and (2) seems to be necessary. This Section provides:

(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from such decree shall be confirmed:

Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

Mr. Jha contends that the present case comes under Clause (2) and there being no majority which concurs in a judgment varying or reversing the decree appealed from, the decree under appeal is to be confirmed. As to the proviso he contends that it is inapplicable because the point of law on which the Judges have differed has not been stated by them in their judgments. Now, in the present case, the learned Judges have stated the point of law upon which they differ in the order-sheet and that seems to me to be all that is required under the law. As the Judges are divided in opinion there is no one judgment in the case, but they have merely delivered two opinions. That being so, the order-sheet was the proper place where the point of law should have been stated and besides what has been done in this case seems to be in conformity with the long standing practice of this Court. There is thus no merit in this contention and it need not be seriously considered.

In my opinion the question of law which has been referred to me should be answered in the negative and I would answer it accordingly. Let the record of the case with my opinion be placed before the learned Judges who originally heard the appeal.