Admissibility of oral evidence for terms of compromise, estoppel in property rights, requirement of registered document for property transfer

Arnold White, C.J.

1. As regards the question of fact in dispute, namely, what were the terms of the compromise entered into between the Vakils of the parties in Civil Suit No. 155 of 1908, I think it is clear on the evidence that one of the terms of that compromise was that the present defendants were to deliver to the present plaintiff the house, the possession of which is asked for in the present suit. The two Vakils, who appeared for the parties in Suit No. 155 of 1908, gave evidence in this suit and their evidence is in substantial agreement that one of the terms of the compromise in the suit of 1908 was that delivery of the house in question should be given by the present defendants to the present plaintiff.

2. The point was taken on behalf of the appellant that inasmuch as the compromise in the suit of 1908 was reduced into writing, under the provisions of Section 92 of the Evidence Act oral evidence for the purpose of adding terms to the compromise which are not to be found in the written document is inadmissible. The first answer to that contention appears to me to be that the compromise in the suit of 1908 was not reduced into writing. The appellant relies upon an endorsement made by Mr. Justice Sankaran Nair on the plaint in the suit of 1908. That endorsement is in these terms: It is represented that the matter has been settled by the defendants Nos. 2 and 3 agreeing to withdraw the suit. Adjourned to to-morrow for payment of the money". It seems perfectly clear that that does not purport to be, and is riot a record of the terms of the compromise. It is merely a note of, the learned Judge as the ground on which he was prepared to make an order of adjournment. In this endorsement, there is no reference either to an undertaking by the plaintiff to pay Rs. 500 or to an undertaking by the defendants to deliver up possession of the house. Then we have a formal order made by the Registrar under the powers conferred on him under the rules allowing the plaintiff in the suit of 1908 to withdraw that suit. There, again, we have no reference either to the Rs. 500 or to the agreement to deliver up possession of the house. Even if there was any writing which recorded this compromise, inasmuch as the settlement was arrived at put of Court, it is not one of the matters which, under Section 92 of the Evidence Act, was to be reduced into writing. Mr. Justice Wallis says with regard to this: "It appears to me that what happened really was, in the turn that events took, that the suit was withdrawn upon a settlement made out of Court." Then, he goes on to observe: "it is always open to the plaintiff to withdraw his suit, if he does not ask for permission to bring a fresh suit. The Court cannot prevent him from doing so, but he is liable to have an order made to pay costs of the other side, but subject to that, his withdrawing the suit is a matter in his own control, and so far as I know it is perfectly open to parties to settle a case out of Court and to withdraw the suit in consequence of the settlement."

3. The real crux of the case arises in connection with the point taken by the appellant, that, inasmuch as the settlement affected immoveable property, the plaintiff who relies on the settlement cannot succeed because there is no registered document in writing. The learned Judge, referring to this, says: "it is contended that this amounts to a transfer of immoveable property, which is invalid for want of registration under the terms of the Transfer of Property Act." It is not suggested that the compromise itself required registration in order to give it validity. But the contention is that, assuming the compromise to be valid, no title vests in the plaintiff by reason of the absence of a registered document as required by Section 54 of the Transfer of Property Act. The learned Judge did not think it necessary to consider this question, because he came to the conclusion on the facts of this case that the defendants were estopped