Wort, J.:— These are two appeals, one by the first two defendants and the other by the plaintiff, against the decision of the Subordinate Judge in an action for partition of certain shares inherited by the parties from their father Maulavi Muhammad Rafiuddin. The Subordinate Judge dismissed the suit against defendant 3 holding that a compromise decree upon which this suit was based was not binding on him, he being a minor at the time when, the agreement was entered into. The Subordinate Judge gave a decree against the two remaining defendants. Defendants 1 and 2 appeal against this decision, and it is contended on their behalf by Mr. Sushil Madhab Mullick that having; dismissed the suit against one of the defendants the suit could not proceed and should have been dismissed as a whole. The plaintiff appeals against the decision contending that the Judge was wrong in dismissing defendant 3 from the suit Defendant 3, respondent, by his advocate, contends that the decision dismissing him from the suit was right and also supports the other defendants' contention that the suit should have been dismissed.

2. Maulavi Muhammad Rafiuddin died on 18th September 1919 leaving him surviving three sons and two daughters by his first wife, three sons and one daughter by his second wife, and his widow. The property inherited by the family consisted of a share in 148 villages in the Patna, Gaya and Monghyr districts. The widow, his second wife, Mt. Bibi Asiran, inherited 2 annas and his six sons and three daughters the balance of the 14 annas, two-fifteenths going to each of his sons and one-fifteenth to each of his daughters. After Maulavi Refiuddin's death, that is, in October 1919, the widow, Mt. Asiran, made a gift of her 2 annas interest in her late husband's property to all the children including her step-children.

3. It appears that disputes arose between the parties and the lady, having repented of her gift, brought an action, suit No. 17 of 1920, to set aside the deed of gift. This suit was compromised in December 1920, on the terms that the gift as regards one and a half annas should stand and the plaintiff, Mt. Bibi Asiran, should retain one half-anna. The defendants of this suit were minors at the time. In June of 1930 this half-anna share of Mt. Bibi Asiran was transferred to her sons, defendants 1 to 3 of this suit. In 1931 Mt. Bibi Soghra, the daughter, instituted a suit, No. 27 of 1931, against her mother and three brothers to have the compromise of December 1920 set aside on the ground that the agreement of compromise had been brought about by collusion between her guardian and mother. This suit was also compromised on 25th April 1935. The terms were as follows: the half-anna share which was retained as a result of the compromise of the 1920 suit should be divided into seven parts, one part to go to the plaintiff, Mt. Bibi Soghra, and six parts to defendants 2 to 4 in that suit who are defendants 1 to 3 in the present suit; for “facility of enjoyment”, it was agreed that the plaintiff's share of the property including her share in the ½ anna, her share in the 1½ annas and her share of the remaining 14 annas of her father's interest should be taken from 25 villages in the Monghyr district, excluding certain named villages of the other districts. The plaintiff was to have a right to select from which of the 25 villages her share was to come. The method of working this out was that the jama should be ascertained from the survey khatian, partition khatian, and the schedule prepared under the road cess return, also from the three years' village papers of Maulavi Abdulla Saheb, and the village papers of the parties, and the partition should take place according to the jama thus ascertained. This was to be done in the presence of two named vakils. On failure of the parties to carry out this agreement it was further provided that they should be entitled to obtain a partition by the Court. Another term of the agreement was that the plaintiff gave up her right to an account from her eldest brother, defendant 1 in this suit. The Judge in the Court below has held that the agreement, apart from the terms relating to the ½ anna share, did not form the consideration for the settlement of the dispute in the suit, and this part of the compromise thus being beyond the scope of the suit was not binding on the minor defendant. A decree having been passed on the compromise the question is whether the minor defendant was bound.

4. The first point for consideration is whether, as the Judge in the Court below has held, the terms of the compromise relating to the method of enjoyment or partition related to the subject matter of the suit. Mr. Manohar Lal, who appears on behalf of the plaintiff-appellant, contends that the agreement as to the shares apart from the 2 annas share, was a matter which had “reference to the suit” within the meaning of O. 32, R. 7 and “the subject matter of the suit” within the meaning of O. 23, R. 3. This matter has been discussed in a large number of cases in the Indian High Courts in which the question arose whether the compromise should be registered under the Registration Act, and the substance of those decisions is, that whether a particular matter is the subject matter or relates to the suit, is primarily a question of fact depending upon the circumstances of each case; that although a matter not strictly the subject matter of a suit, may relate to or have reference to the suit if it forms part of the consideration.

5. The leading case on this matter is the decision of the learned Judges of the Madras High Court in 22 Mad 508;1 see also the decision of Rankin, J., a decision of a single Bench in 48 Cal 1059.2 It is impossible to lay down any definite rule, as it is clear the question whether the matter is the subject matter of the suit must depend primarily upon the circumstances of each case. It should be noted that the action of 1931 was in the first place a claim for accounts against the eldest brother, who it appears had been collecting the rents of the villages; and one of the terms of the compromise was that claim was relinquished. The account related not only to the ½ anna share but also to the 1½ annas and the share of the 14 annas which the plaintiff had inherited from her father. It therefore cannot be said that part of the compromise which related to the method of the enjoyment of the shares of the parties was outside the scope of the suit. In one form or another the suit related to the whole 16 annas. Although there was no question of a partition in any form in the suit of 1931, there was no reason why as a consideration of her giving up her claim to the account, that the parties should not enter into an arrangement by which the lady was restricted to certain villages for the collection of her share. It would be in my judgment straining the terms of the compromise itself, to hold that this arrangement which was described as an arrangement for the “facility of management,” was not the consideration and therefore had reference to the suit within the meaning of O. 32, R. 7, and strictly therefore the subject matter of the suit within the meaning of O. 23, R. 3. It is unnecessary therefore to consider whether Section 147 of the CPC, which is said to have been a paraphrase of O. 16, R. 21 of the Rules of the Supreme Court in England, affects the matter. But whatever view may be taken of that section there can be no doubt that on its true construction it does not abrogate the general law that a minor cannot enter into a binding contract, nor can a guardian enter into a contract on his behalf. It is not forgotten that a guardian, with the leave of the Court, may bind a minor by compromise of a suit so far as the compromise deals with matters in issue in the case.

6. Had it been necessary to hold that the so called agreement to partition was beyond the scope of the suit I am of the opinion that there are indications in the decision of their Lordships of the Privy Council in 46 IA 240,3 that so far as the matter was outside the scope of the suit it was a question of contract and no more. Holding the view that I do with regard to that part of the compromise which deals with the method of enjoyment, it is unnecessary to consider whether under the amendment of Section 17(2)(vi) of the Registration Act, it was necessary to register the decree as a condition precedent to its being enforced. Shortly stated the new sub-section requires registration in the case of a decree which comprises or relates to immoveable property other than that which is the subject matter of the suit. S. 49 prohibits an unregistered document being received in evidence if it “affects” immoveable property. But the most that can be said of the relevant part of the compromise is that it effects, in a limited way, an exchange of shares. But it is pointed out that it does not affect the property within the meaning of the Registration Act, as it neither creates nor extinguishes title. Even if it were otherwise, it would not be an exchange, as it is at the most an exchange between co-owners, and therefore not a transfer of immoveable property within the meaning of the Transfer of Property Act: see the case in 25 Cal 210.4

7. The only substantial point which is left in this case is the question whether the suit is maintainable. After the failure of the parties to carry out the agreement an application was made to the Court for execution of the decree. The executing Court decided that as the parties were attempting to partition the property, execution could not proceed as there was no provision in the Code of Civil Procedure for effecting partition in execution proceedings. That Court further held that as the claim for partition was extraneous to the subject matter of the suit, it could not be enforced in the execution proceedings, but that it was necessary to bring a separate suit. No appeal was preferred from this order which was made on 19th December 1933. It is contended by Mr. Manohar Lal in the plaintiff's appeal that the question of the remedy open to the plaintiff, whether in execution or by a separate suit, is res judicata. In the circumstances I think it unnecessary to decide that point. The compromise related to two matters as we have seen: first, an agreement as to the half anna share of the mother under the former compromise and secondly an agreement as to the method of enjoyment of the respective shares of the parties as to the half anna share and one and half annas share and the share they inherited from their father. So far as the first part was concerned the rights of the parties were defined by the agreement to divide up the share and nothing remained to be done. Had the parties disregarded the agreement in this regard, an action might lie according to the facts and had one of the co-sharers, a member of the family or any other of the co-sharers, been minded to bring an action for partition by metes and bounds, the Court might have acted on the agreement, so far as regards the parties to it were concerned, as a convenient basis of allotment.

8. As regards the second item: on failure of the parties to carry out that part of the agreement the question arises as to what was the remedy open to them. It was pointed out during the course of the argument that the claim in this suit was framed in such a manner as to claim a partition by metes and bounds. The plaintiff asked for a separate takhta. Mr. Manohar Lal contends however that is not what was asked for, and neither the parties nor the Court considered that to be the nature of the claim. I think that argument is well founded, as it is clear that had the parties or the Court understood that to be the nature of the claim, the action would have failed on the ground that not only were the other co-sharers of Maulavi Muhammad Rafiuddin not joined, but the other members of the family were not on the record of the case, and it would be impossible to proceed to partition by metes and bounds without joining all persons interested in the 148 villages. It is argued that what was asked for in the compromise was a ‘mauzawar partition,’ and there is a petition before us to amend the plaint in conformity with that claim. To claim a partition is to claim a partition by metes and bounds for the formation of separate takhtas for the parties' interests. This the plaintiff, it is said, does not claim in this suit as we have seen. Such rights as the plaintiff has in this case, are sound in contract, and a failure on the part of the defendants to perform their part of the contract entitles the plaintiff either to specific performance or damages. The facts relating to the performance of the agreement are that the arbitrators were prepared to act as was the plaintiff, but defendants 1 and 2 did not produce their papers.

9. Now this agreement, whatever be its form, is in substance nothing more than a submission to arbitration. The allotment is to be made in the presence of two named vakils.

10. They are not so called but in fact they are arbitrators. By Section 21 of the Specific Relief Act, such a contract cannot be specifically enforced. They are exceptions to this rule in S. 21 and they are with regard to the provisions of the Arbitration Act of 1899 and the provisions of the Code of Civil Procedure, Sch. 2. The exceptions apply to those cases in which a submission to arbitration is a bar to a suit with regard to any subject which the parties have agreed to refer. There is no question in this case whether the submission is a bar to the suit as it is (as I have decided) an action to enforce the submission to arbitration. That agreement cannot be specifically enforced. As the claim in this case is for specific performance as the only remedy open to the plaintiff, although not so described, the action in my opinion is misconceived and must fail. The plaintiff was entitled, in the absence of defendants 1 to 3, to proceed with the matter and an allotment arrived at in the absence of the defendants in the circumstances would certainly have been binding on them. The appeal of defendants 1 and 2 succeeds and the plaintiff's appeal fails. The appellants 1 and 2 and respondent 3 are entitled to their costs in this Court and in the Court below. It follows that the suit is dismissed with costs throughout.

Agarwala, J.:— I agree.

W.D/A.L

11. Order accordingly.