Judgement Appeal (No. 113 of 1921) from a judgment and decree of the High Court (February 24, 1920) varying a decree of the District Judge of Tinnevelly (October 29, 1918). The suit was brought by Subramanya Ayyar, deceased, and represented by his son the respondent, against the appellant, son of Krishna Ayyar, under a partition agreement entered into by Subramanya Ayyar and Krishna Ayyar on January 7, 1915. The circumstances appear from the judgment of the Judicial Committee. The plaintiff by his plaint alleged that under a division of the joint family properties in Travancore State which had been carried out by a later deed of February 4, 1915, Krishna Ayyar had obtained as jeshtabhagam a greater share than his brother. He expressly stated that in respect of the properties in Travancore he was prepared to get relief in the Courts of that State; he however prayed for a decree declaring that certain of the properties in the Tinnevelly District were solely his, as having fallen to his share under the agreement of January 7, 1915, and for an equal division of other properties there situated; he further prayed that the execution of a partition deed as to the properties in the Tinnevelly District should be ordered. The defendant by his written statement, among other defences, pleaded that certain of the properties were not joint properties, and that the deeds of January 7 and February 4, 1915, were inadmissible in evidence in the absence of registration in British India under the Indian Registration Act, 1908. The District Judge, to whose Court the suit was transferred, held that the documents were admissible upon a claim for specific performance; he further held that, there being a nucleus of family property, the property which the defendant alleged was his separate property must be regarded as joint in the absence of evidence. The learned judge made a decree as prayed, and directed the appointment of a commissioner to divide the properties where necessary. The learned judge made a decree as prayed, and directed the appointment of a commissioner to divide the properties where necessary. An appeal to the High Court was heard by Sir John Wallis C.J. and Krishnan J. and was allowed, a decree being made remanding the case to the District Judge " to ascertain what properties in British Territory should be allowed to the plaintiff to give him his half share in the whole family properties." The learned judges were of opinion that in the absence of registration the agreement could not be enforced; in their view its terms precluded it from coming within proviso v of s. 17, sub-s. 2, of the Indian Registration Act, 1908. They considered that the suit could be treated as one for a general partition, but that in dividing the properties in British India the plaintiff should have a share which would be equal to that of the defendant when the unequal division in Travancore was taken into account. 1922. July 10. Upjohn K.C. and Dube for the appellant. The suit was for specific performance of the agreement, and could not be treated as a suit for a general partition Ma Shwe Mya v. Maung Mo Hnaung.(( 1921) L. R. 48 I. A. 214.) The decision of the High Court that the agreement was not admissible in evidence in the absence of registration is not appealed from by the respondent. Further, all the parties required by s. 221 of the Code of Civil Procedure are not before the Court so as to enable the decree to be made. If, however, the plaintiff on his pleading can ask for a general partition, he cannot reopen the division in Travancore. He expressly disclaimed doing so, and is bound by the deed of partition as to the properties there situated. It cannot be assumed that the division of the properties in Travancore was contrary to the law there applicable. De Gruyther K.C. and Narasimham for the respondent. The form of the suit is not material; it was in effect a claim for a partition of the joint family properties in British India. July 31. The judgment of their Lordships was delivered by MR. De Gruyther K.C. and Narasimham for the respondent. The form of the suit is not material; it was in effect a claim for a partition of the joint family properties in British India. July 31. The judgment of their Lordships was delivered by MR. AMEER ALI This appeal arises out of a suit brought by the plaintiff, Subramanya Ayyar, since deceased, in the Court of the Subordinate Judge at Tinnevelly, in the Madras Presidency, on December 21, 1915, under the following circumstances. Subramanya Ayyar, with his brother Krishna Ayyar, who died before the institution of the suit, formed a joint and undivided Hindu family subject to the Mitakshara law. They possessed considerable immovable properties both within the Travancore State and in British territories. The landed properties belonging to them in British India are situated in the Tinnevelly district. In 1915 they decided to separate and make an amicable division of the properties belonging to them, both immovable and movable. By a yadast, or memorandum of agreement, dated January 7, 1915, which is marked as exhibit Ay in these proceedings, they agreed to divide their properties both in Travancore and in British territories according to certain specified shares. Later, on February 1 of the same year, effect was given to this agreement in respect of the properties in Travancore, under which Krishna Ayyar, as the elder brother, obtained, under the designation of jesthabhagam, a larger share than would have come to him otherwise. This document was registered in Travancore, and effect appears to have been given to it in respect of the properties situated in that State. No division, however, was made of the properties in Tinnevelly or separate possession delivered to the parties of their respective shares. Krishna Ayyar having died in the meantime, his son, the present defendant, evaded the fulfilment of the agreement embodied in exhibit Ay; and accordingly Subramanya brought the present suit for its enforcement. In the plaint the relief asked for is a decree for partition by metes and bounds, and a direction to the defendant to execute a conveyance of the properties that should fall to the share of the plaintiff in terms of the agreement. In the plaint the relief asked for is a decree for partition by metes and bounds, and a direction to the defendant to execute a conveyance of the properties that should fall to the share of the plaintiff in terms of the agreement. The defendant in his written statement raised three objections to the suit first, that the agreement (Ay) had been obtained by Subramanya from his father under undue influence ; secondly, that a large portion of the properties in which the plaintiff claimed a share was his fathers self-acquisitions and did not form part of the ancestral estate ; and thirdly, that the agreement, not having been registered in British India, could not be admitted in evidence, and no suit for specific performance could be based on it, The District Judge held that the defendant had failed to prove his allegation of undue influence to invalidate the agreement on which the plaintiff relies. He also held that the defendant having admitted that there was a nucleus of ancestral property, it lay upon him to establish that the properties, which he claimed exclusively, were acquired by his father, and this onus he had wholly failed to discharge. With regard to the non-registration of the agreement the District Judge said as follows " I do not think that the fact that the yadast (exhibit Ay) and the document of partition (exhibit Az) referred to in paragraph 8 of the plaint were not registered in British India precludes their admission in evidence.” And, relying upon a decision of the High Court of Madras, he held that "if a present right is created, the instrument, though unregistered, is admissible in evidence in a suit for specific performance, and I hold that they are admissible in evidence in this suit." He accordingly made a decree in favour of the plaintiff, declaring in the first place that the properties claimed by the plaintiff had fallen to his share, and directing that the defendant should put the plaintiff in possession of the property detailed in Schedules 1, 4 and 6 of the plaint and half of certain other properties, after dividing by metes and bounds. He made certain other directions on the same basis. He made certain other directions on the same basis. On appeal to the High Court the learned judges held, in agreement with the first Court, that the defendant had utterly failed to prove that the memorandum had been obtained by undue influence, but they also held that the agreement exhibit Ay, not having been registered in British India, was not admissible in evidence. Having regard, however, to the facts of the case and the admitted jointness of the parties until 1915, they directed a general partition in equal shares of the properties both in British India and the Travancore State. The effect of the High Courts decision on the latter point is that it upsets the completed settlement embodied in exhibit Az, which was duly executed and registered in the Travancore State, and which appears to have been carried into effect, the defendant or his father having got possession of the properties which fell to his share. With regard to the properties in Tinnevelly, the High Court considered, in agreement with the District Judge, that the defendant having admitted an ancestral nucleus, it lay upon him to prove that the properties which he claimed were self-acquired. The defendant, on appeal, contends that the High Court were not justified in turning a suit for specific performance of an agreement which, not having been registered, could not be given in evidence, into a suit for general partition, and that accordingly the present claim should be dismissed. He also contends that the High Court were wrong in decreeing a partition of the properties in the Travancore district. In their Lordships judgment the High Court, in upsetting the division of the Travancore properties appear to have proceeded upon a misapprehension. The yadast, as its name implies, was a memorandum regarding the cesser of jointness, which amounted to a declaration that from that time forth the parties became entitled to the possession and enjoyment of their properties in separate shares; and it provided for the execution of a further deed effectuating the partition. It says "A partition deed in terms hereof shall be executed and registered in the office of the Sub-Registrar of this place, as also at Tinnevelly, as early as possible ; that until then this shall itself be in force" It then goes on to give a larger share to Krishna Ayyar, as the elder brother. It says "A partition deed in terms hereof shall be executed and registered in the office of the Sub-Registrar of this place, as also at Tinnevelly, as early as possible ; that until then this shall itself be in force" It then goes on to give a larger share to Krishna Ayyar, as the elder brother. In accordance with the provisions of the agreement, a formal deed of partition (Az) was executed and registered in Travancore relating to the Travancore properties. It was entered into between two persons suri juris fully competent to enter into the transaction. It is difficult to perceive how that transaction can be upset in a suit which relates to properties in Tinnevelly, and asks for a partition of those properties alone. Subramanya, no doubt, in his plaint had said that he would bring a suit in the Travancore Court to set aside the division effected by exhibit Az, and it is possible that that statement led the defendant to throw every possible obstacle in the way of the plaintiff to get the relief he asked for. But it furnishes no ground, in their Lordships opinion, to upset a completed transaction. The present suit must consequently be confined to the joint family properties situated in Tinnevelly. It has been contended that this is a suit for the specific performance of an unregistered contract; and that the High Court dealt with it as one for general partition. As regards the non-registration of the agreement, it is to be observed that s. 17 of the Indian Registration Act, 1908, makes the registration of certain classes of documents compulsory. It has been contended that this is a suit for the specific performance of an unregistered contract; and that the High Court dealt with it as one for general partition. As regards the non-registration of the agreement, it is to be observed that s. 17 of the Indian Registration Act, 1908, makes the registration of certain classes of documents compulsory. Among others (6) " non-testamentary instruments which purport 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." From this, proviso v to sub-s. 2 excepts the following "any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest." Exhibit Ay is not a document by itself creating, assigning, limiting, or extinguishing any right or interest in immovable property; it merely creates a right to obtain another document which will, when executed, create a right in the person claiming the relief, and on that ground their Lordships think exhibit Ay did not require registration, and accordingly is admissible in evidence, so far as it goes. The learned judges of the High Court were, however, perfectly right in the view that the onus was on the defendant to establish that the properties he claimed as the self-acquired properties of his father, Krishna Ayyar, bore that character. The defendant examined a number of witnesses on commission, apparently in support of his statement, but the depositions of these witnesses do not appear to have been put in evidence, and the list attached to the District Judges judgment, after mentioning the exhibits filed on the plaintiffs behalf and giving the names of his witnesses, contains the following entries " Defendants exhibits, nil; defendants witnesses, nil." Their Lordships are, therefore, of opinion that the decree of the High Court should be varied by confining the decree for partition to the properties held by the parties in the Tinnevelly district; that save and except this variation the appeal should be dismissed. The case will go back to the High Court for remission to the District Judge in order that he may appoint a commissioner to make the division of the properties by metes and bounds in equal shares and to allot to the plaintiff his half-share of the whole of the joint family properties situated in Tinnevelly; that in case, owing to any circumstance, equal division cannot be made of any particular property to one party or the other, the difference should be arranged for by the commissioner, subject to the decision of the District Judge. As the suit was one substantially for partition, their Lordships think that the parties should bear throughout the proceedings their costs, save and except that the defendant should pay to the plaintiff his half-share of the Court fees. Their Lordships will, therefore, humbly advise His Majesty accordingly.