MODI, J.—This is a regular Civil first appeal by the defendants Udaichand and others in a suit for partition. 2. The following agreed pedigree will serve to explain the relationship between the parties:— Mohanlal Bherondan Kaluram Nemchand Karni Dan Plaintiff Udaichand (Deft.1) Sumermal (Deft. 6) Manakmal Jiwanmal Parasmal Amarsingh @ Ranjitmal (Deft.5 Minor) Jhankarmal (Deft.2) Dharamchand (Deft.3) Minor Munnalal (Deft.4) Minor The dispute between the parties relates to certain properties which are mentioned in para two of the plaint and which are situate in the town of Sujangarh. The plaintiffs case wash that a partition had taken place between the two sons of Mohanlal viz. Bherundan and Kaluram in Svt. 1971 as a result of which one Haveli and one Nohra fell to the share of Bherundan and another Haveli and Nohra fell to Kalurams share. Thus, the house marked "d" and Nohra "[k" came into Bherundans share, whereas the house marked "x" and the Nohara "?k" came into the share of Kaluram. (See site plan Ex. 1). Then there was an. open court-yard in front of these houses and Nohras, which is called Bakhal and is marked as "N" in the site plan Ex. 1. According to the plaintiffs, this Bakhal was kept as joint between the two branches of Mohanlals sons. The dispute in the present appeal relates to the partition of this open land. The plaintiffs case, put briefly, is that they were entitled to a one third share in this open land another one-sixth belonged to Sumermal defendant No. 6, and the defendants Nos. 1 to 5 were entitled to the remaining half share therein. The plaintiffs claimed a partition of their share in this land by metes and bounds. They also claimed a partition of the house "d" between themselves and defendant N0.6 Sumermal but with this aspect of the case we are not concerned in the present appeal. 3. Defendant Sumermal contested the suit and his plea so far as the dispute in the present appeal is concerned was that the Bakhal had been kept joint between the parties, and that by its very nature it was not capable of partition, and that it was only by being kept jointly that the entire land covered by the Bakhal could be best used by the parties. The defendants appellants Udaichand and his sons raised a similar plea in their written statement. 4. The defendants appellants Udaichand and his sons raised a similar plea in their written statement. 4. The trial court has decreed the plaintiffs suit. It held that the plaintiffs were entitled to one-third share in the Bakhal, Sumermal was entitled to one-sixth share therein and the defendants Udaichand and others were entitled to remaining half. Having so held, the court appointed a Commissioner to the effect the partition of the Bakhal by metes and bounds and thought fit to give certain directions to the Commissioner for the purpose of effecting the partition. The learned Judge was fully conscious that the way to the defendants house as well as the Nohra as also to the plaintiffs Nohra marked x" on the site plan Ex.1 lay through this Bakhal and no other way was possible and so he gave a direction that a way should be kept along side the eastern wall of the Bakhal and its north-western end should meet a perpendicular line to be drawn in line with the southern wall of the plaintiffs Nohra "x" the total width of the way being 7 feet 6 inches. The Court further gave a direction that a similar perpendicular line be drawn from the southern corner of the defendants house "[k" and leaving the way as aforesaid, the land in front of the respective houses of the parties should be allotted to the owners concerned. The learned Judge gave a further direction that if by. the aforesaid distribution any of the parties should obtain greater or lesser land, than he or they are entitled to, then the Commissioner should submit the necessary proposals for giving cash compensation from the one to the other so that inequality be removed. Aggrieved by this judgment and decree, the defendants have come up in appeal to this Court, and their main contention is that the land covered by the Bakhal was by agreement between the parties as well as by its inherent nature, incapable of partition and, therefore, the court below should have ordered it to be kept as joint in the interest of the parties themselves. 5. In support of his argument, learned counsel for the defendants principally relies on two documents. The first is Ex.A—1. This is an agreement of Smt. 1985. 5. In support of his argument, learned counsel for the defendants principally relies on two documents. The first is Ex.A—1. This is an agreement of Smt. 1985. It was executed by the plaintiff Karnidans father Bherondan and defendant No.6 Sumermals father Nemchand in favour of defendant Udaichand and his father Kaluram. It was clearly mentioned in this document that a partition had already taken place between the branches of Bherondan and Kaluram on Asad Vadi 10 Smt. 1971 and that a document had been executed in that connection. It was also mentioned that certain apartments belonging to their collaterals Harakchand and Ramlal had also been purchased by them for Rs. 2000/- on Migsar Sudi 9 Smt. 1971 and that there was a separate patta with respect to those apartments. It was further mentioned that there were old pattas in the names of Harakchand, Ramlal, Bherondan and Kaluram but they were not traceable and that new pattas had however been obtained and all these properties had been partitioned and the manner in which they were so partitioned was being reduced to writing. Then there is a reference to the four properties which have already been referred to above, namely, the two Havelis and the two Nohras. As regards the Haveli which went to the share of the defendants, the stipulation was that the defendants would not be able to build in front thereof so as to project beyond the plaintiffs chowki. A further stipulation was that the Pol on the southern side which provided the only entrance to the houses and the Nohras of the parties would remain joint and then comes the reference to the Bakhal. And in this connection it was mentioned that this Bakhal extended from the Pol right up to the house of Loonkaran Baid, on the northern side, in front of the parties respectively, and that this land would remain open and continue to been joyed jointly. It was further provided that if it should at all be necessary to build anything in the Bakhal, then such construction could be raised only with the common consent of the parties and not otherwise. It was further provided that if it should at all be necessary to build anything in the Bakhal, then such construction could be raised only with the common consent of the parties and not otherwise. I may as well quote the exact wording of this document to avoid all possibility of error or mis-understanding:— ^^ck[ky u-a 1 iksy ls yxk; u yw.kdj.kth oSn dk tehu rkbZ nksU;w gosfy;ka d rFkk nksU;w uksgjk d lkeus jglh tdk [kqyk nksU;w Hkk;k d HkksX;k jglh] b.k ck[ky esa [kqyk jglh vxj dksbZ t:jr iM+rh ck[ky Bko gkslh rks nksU;w Hkk;k d jtkeUnh ls gkslh vdsyk dksbZ djk; lds ugha thA** It is obvious from a perusal of this document that the intention of the parties thereto was that the land covered by the Bakhal would remain open and continue to remain in joint enjoyment of the parties and no construction would be allowed to be raised on it save with the consent of all the parties concerned. 6. Learned counsel for the plaintiffs raised two objections to this document. The first was that this was compulsorily registrable and as it was not registered, it could not be admitted in evidence. In support of his submission, learned counsel relied on the Registration Act of 1916 of the former Bikaner State, from which part of Rajasthan this case arises, and the contention is that according to Sec. 7 of that Act, all the documents relating to immovable property were required to be registered by this law except those mentioned in the thirteen clauses mentioned therein and that the present document did not fall within any of these exceptions. It may be stated at once that the document Ex. A-1 does not fall within any of these exceptional cases. Learned counsel for the defendants appellants, however, seeks to meet this argument on the well-established principle that even if a document which was compulsorily registrable on the date on which it was executed it would be admissible in evidence though Unregistered if it is admissible without registration in accordance with the law in force at the time the document is sought to be put in evidence. This submission in my opinion has force, The position thus boils down to this that, under Sec. 17 of the Registration Act which was in force in 1955 when the present suit was instituted, a document which by itself does-not effect any partition but which maintain a partition already effected or which simply acknowledges or makes an admission as to a prior partition is not an instrument of partition which is compulsorily registrable. Reference may be made it support of this view to Jaitram Vs. Narottam (1). I have indicated above the true nature and purpose of the document Ex.A-1. It does not appear to me to be a deed of partition by itself. In fact, it makes a reference to the fact that a partition had already been effected between the parties in Smt. 1971, and, let it be remembered that the document which we are called upon to consider came to be executed in Smt. 1985. In fact, it is the plaintiffs own case as disclosed in the plaint that partition between the parties had been arrived at in Svt. 1971. That being so I find it extremely difficult to hold that the document of Svt. 1985 was per se a document of partition. In this view of the matter, I am disposed to held the view that it was not compulsorily registrable. 7. It was next contended that, even if I was inclined to hold the above view, this amounts to a restraint on partition and that this was not favoured in law, and my attention was drawn in this connection to Ramlinga Khanapura vs. Virupakshi Khanapura(2). It was held in this case that an agreement between co-partners never to divide certain property is invalid by the Hindu Law as tending to create a perpetuity. In this case the agreement between two brothers was to the effect that two houses which were their joint property were ever to remain joint and undivided, and it was in these circumstances held that such an agreement was invalid as the Hindu Law gives to a member of a united family an indefeasible right to demand partition from his co-members. The present case in my opinion is somewhat different inasmuch as it is not a case where a total restraint was placed on partition between the members of a joint Hindu family, and in fact a partition had been made between them, and all that was stipulated between them was, at the time the partition was made (and this was reduced to writing later in Smt. 1985) that there was certain joint land in front of the houses and the parties, and that obviously as common interest of the parties demanded that this land should be kept open and upbuilt upon it was provided that it should continue to remain in that state and was to be enjoyed in common. I may add that the general rule undoubtedly is that all common properties are liable to partition; but this rule is not absolute and it is open to certain responsible and well known exceptions. As instances of such exceptions, I may point out that it is well recognized that places of common use or enjoyment such as a family idol or a well or land over which there is a right of passage need not necessarily be partitioned for the simple reason that such partition would almost amount to a destruction of the property and would not serve any beneficial purpose to any one of the co-owners. In this connection, my attention has been invited to Shantaram Vs. Waman (3). This case seems to me to be a fairly close parallel to the case before me, and the point for determination therein was whether a partition of a narrow strip of land which was reserved at the time of an earlier partition as common passage could be allowed. Shah Ag. C.J. who delivered the main judgment in the case was of the opinion that, both under the Mitakshara and the Vyavahara Mayukha, the land which was reserved as common passage at the time of previous partition between the parties was not divisible subsequently. I respectfully agree with the principle of this decision and hold that the same is clearly applicable to the present case. 7. I respectfully agree with the principle of this decision and hold that the same is clearly applicable to the present case. 7. A casual glance at the plan Ex.1 would clearly show that the main purpose for which the so-called Bakhal was agreed to be kept open and in joint enjoyment of the parties was that the passage to all the four properties of the parties to this suit lay from over this land. It is further noteworthy that the plaintiffs house which they held in common with defendant No. 6 Sumermal and which has now been ordered to be partitioned by this very decree but with which aspect of the case we are not concerned and the plaintiff s Nohara are both situate at two extreme ends of this Bakhal and interspersed between these two properties are the defendants house and Nohra; these latter have been shown as a single property in the plan Ex. 1 though they are marked as "[k" and "?k" It is not easy for me to understand how the court can deprive any of the parties of their right of such passage to and from their properties from over this land, and this is exactly what the learned trial Judge seems to me to have done. It is true that he has given a direction by his preliminary decree that land alongside of the eastern boundary wall of the Bakhal of the width of 7-1/2 feet should be left as way hereafter. But this provision is open to very serious objections. For one thing, a way of 7-1/2 feet under modern conditions of living is unduly narrow if not worse than useless; and, for another, I am categorically of the opinion that it is no: for the courts to carve out an almost new way for the parties to the dispute simply to satisfy the whim of one or the other of them and to deprive them of their right of passage of which they have been in enjoyment for years together without any rhyme or reason. I may also pause hereto point out that the decree passed by the trial court the terms whereof I have already set out is conditioned by so many riders that it should be extremely difficult to work it out. I may also pause hereto point out that the decree passed by the trial court the terms whereof I have already set out is conditioned by so many riders that it should be extremely difficult to work it out. All that, in my opinion, clearly goes to show that the nature of this property which the plaintiffs seek to have partitioned is so difficult that it is not easily capable of being partitioned. I may also point out here in this connection that admittedly there are latrines of the parties situate at the northern extremity of the Bakhal and a way would also be required to be found for going to and out of them. It is for these reasons that, although at one stage I was inclined to explore the possibility of allowing a partition of the land in dispute after leaving a reasonably wide passage, say, of 14 feet width, I eventually came to the conclusion that, having regard to the situation of the houses of the parties, it is well high impossible to do so without creating further problem, and it will be hardly in the interest of the parties to provide further opportunities of conflict between them. 8. This brings me to the second important document, namely, Ex.3. This is an award dated the 18th November, 1940, upon which a decree was eventually passed on the 28rh March, 1944. There were certain disputes between Karnidan plaintiff and Nemchand, father of defendant No. 6 Sumermal, and both parties had referred these disputes to arbitration which resulted in the awards Ex. 3. It is unnecessary to go into other matters with which the award dealt, and I consider it enough to make a reference to the portion there of which deals with the Bakhal. Freely translated in English, the award provided that there was an open Bakhal in front of the Haveli and that Karnidan had a double share therein as against the share which belonged to Nemchand. (This was ofcourse as between the parties to that dispute and obviously did not have any reference to the right of the defendant Nos. x to 5), and it was further said that this land was joint and that it would remain open and no one would have any right to build any sort of construction whatsoever such as a room, Chhapper or Chowki therein. x to 5), and it was further said that this land was joint and that it would remain open and no one would have any right to build any sort of construction whatsoever such as a room, Chhapper or Chowki therein. It was further provided, however, that both parties would be able to build their latrines on this land. As already stated, this award was made a decree of the court vide judgment Ex. 4 and decree Ex. 5, both of which provided after reciting certain terms of the award that the decree was to be in accordance with the terms of the award. It may be pointed out that these documents were put in by the plaintiffs themselves as there was a dispute in this litigation between them and Sumermal as to their respective shares in the Bakhal and the house "d", the contention of the plaintiffs being that they were entitled to a 2/3rd share while the contention of Sumermal defendant No. 6 was that he had a half share therein. It was eventually held that the plaintiffs had a 2/3rd share and the defendant Sumermal had only 1/3 share in the house which was their joint property. The point to note, however, is not what the respective shares of these two disputants were but that in this litigation between Sumermal and the plaintiffs, the Bakhal was also the subject-matter of dispute and had been referred to arbitration, and the award of the arbitrator was that the Bakhal was joint and that no one of the parties would have any right to build thereon, and that it would remain open, and the only relaxation as to this part of the award that was provided was that the both parties would be free to build their latrines in it and nothing else. It may be that this award did not in so many words say that the land covered by the Bakhal which was ofcourse joint would continue to be joint thereafter, but that is the obvious import of this part of the award, and I cannot possibly persuade myself to think that the arbitrator intended to hold that the land could be divided. The very fact that both parties were put under a strict embargo to the effect that they were not to be allowed to build on the land except for the latrines unmistakably shows that the intention clearly was that the land should be kept and enjoyed as joint. 9. Again, 1 am fully conscious of the fact that the award is directly binding on the parties to the arbitration only or their successors in interest namely the plaintiffs and defendant No. 6 Sumermal but that hardly matters inasmuch as Sumermal has his one-sixth share, being half of what the plaintiffs are entitled to have not only in that much portion of the Bakhal which lies alongside the eastern wall of the house "d" upto the northen wall of this house but it is admitted that he has a one-sixth share in the whole of the Bakhal and it is further admitted that he has his latrine along the northern extremity of the Bakhal, and this defendant stoutly resists the partition of the Bakhal by metes and bounds. 10. In this state of circumstances, the question that falls for decision is whether the plaintiffs are entitled to ask for a partition of this Bakhal as a matter of law. My answer to this question is in the negative; and summing up the whole position I would say, first, that the plaintiffs are not entitled to do so because of the agreement Ex. A-1 and also because of the award Ex. 3, both of which, as I read them, are consistent with the position that the intention of the parties thereto was that this land should continue to be held in common enjoyment and it was, therefore, provided that it should also remain open. The second reason which persuades me to come to the same conclusion even more than the first is that, having regard to the situation of the respective houses of the parties which will be clearly manifest from what I have already stated above with reference to plan Ex. 1, a partition of this Bakhal would be fraught with very grave difficulties, if at all it is possible without destroying the property itself. 1, a partition of this Bakhal would be fraught with very grave difficulties, if at all it is possible without destroying the property itself. As: I took at the matter, a common passage will have to be provided just in front of the houses of the parties and this way having regard to modern conditions of living should not be less than 14 feet width. Then some way will also have to be provided for passage to and from! the latrines of the parties situate at the northern end of the Bakhal. It also seems to me, having regard to the shares which the parties have in the land, that it would be extremely difficult to divide the rest of the land after leaving out the passage without converting this area into a sort of a slum which I for myself would not be prepared to allow. 11. For the Reasons mentioned above, 1 am constrained to hold that the judgment and decree of the learned Civil Judge cannot be maintained in law or justice and I, therefore, set them aside and dismiss the plaintiffs suit in so far as the partition of the Bakhal is concerned. Having regard however to the fact that the parties are close relations, I would leave them to bear their own costs throughout.