JUDGMENT The judgment of the Court was as follows : Roy, J.: These two appeals arise out of the same judgment and decree passed by a learned Subordinate Judge of Howrah by which two suits heard analogously were disposed of Sukumar Banerjee, who is appellant in both the appeals, was the plaintiff in Partition Suit No. 30 of 1955 and defendant in T. S. No. 53 of 1955 which was a suit for specific performance of an agreement instituted by the' respondent Nos. 1 and 2. Partition Suit No. 30 of 1955 was dismissed and the suit for specific performance has been decreed by the learned Subordinate Judge. The two appeals in this Court have been preferred by the same person Sukumar Banerjee and the two appeals have been heard analogously in this Court. Parties in both the appeals were represented before us by same set of lawyers on either side. Mr. Bankim Chandra Banerjee with Mr. Gaganendra Krishna Deb appeared for the appellant and Mr. Panchanan Pal with Mr. Sasthi Charan Roy appeared for the respondent Nos.1 and 2. The respondent No.3, who was a pro forma defendant in the Court below, did not appear in this Court. 2. Facts relevant for disposal of the two appeals are that Sukumal the plaintiff in Suit No. 30 and defendant in Suit No. 53, is elder step-brother of lndu and Gora who are the defendants in Suit No. 30 and plaintiffs in Suit No. 53. They are sons of Abani who died in July 1939. Abani's father, Harihar had seven sons. Harihar died in 1930 after making testamentary disposition of his properties by a Will dated January 21, 1925 and several codicils dated November 20, 1926, September 3, 1930 and November 25, 1930. One of his sons Banwarilal as sole surviving executor appointed by the said Will obtained probate thereof in Probate Suit No 41 of 1945 of the Court of the District Judge, Howrah. Under the terms of that Will specified properties were bequeathed to Abani for his life, then to Abani's sons for life and then in absolute interest to the son's sons of Abani. Similar dispositions were made by that Will of other specified properties to his other sons, grand-sons and great grand-sons. Under the terms of that Will specified properties were bequeathed to Abani for his life, then to Abani's sons for life and then in absolute interest to the son's sons of Abani. Similar dispositions were made by that Will of other specified properties to his other sons, grand-sons and great grand-sons. Geneological table appended below will show the relationship of parties in this litigation :- Harihar Sivakumar Abani Satish Bharat Banwarilal Nanilal Govinda Sukumar Indu Gora @ Ghutu Ajit @ Nadu 3. Sukumar is the eldest son of Abani by his first wife and Indu and Gora are Abani's sons by his second wife. Each of them have 1/3rd share in life interest in properties bequeathed to Abani by the Will of Harihar. There is no dispute that the properties mentioned in Items 1 to 5 ill schedule ka of the plaint are properties bequeathed by Harihar by his will as mentioned above. But Items 6, 7 and 8 which were added by amendment were disputed by Indu and Gora as self acquired properties of Gora, not acquired by ejmali funds as claimed by Sukumar. 4. On July 16, 1952, an agreement (Ext. A) appears to have been executed by Sukumar and his two step-brothers dividing the properties in three lots, each of those brothers taking one of these lots mentioned in schedule ka, kha and ga of that document. Sukumar, who was the first party, was allotted properties in ka. lndu Bhusan, who was the second party, was allotted proper ties in kha, and Gorachand, who was the third party, was allotted properties in ga. In that agreement (Ext. A) it was stipulated, inter alia, that- (1) Current market price of the joint properties was Rs. 63,000 and each share was entitled to properties worth Rs. 21,000. Parties were satisfied about correctness of that value by personal enquiry. (2) Each party took the lot given to him in exchange of undivided 1/3rd share in the joint properties and relinquished his 1/3rd share in the other two lots. (3) A partition deed will be duly executed and registered within three months or as early as possible and when any two of the parties agree to get prepared to do so, they will be competent to avail the help of the Court to have the deed of partition executed and registered. (3) A partition deed will be duly executed and registered within three months or as early as possible and when any two of the parties agree to get prepared to do so, they will be competent to avail the help of the Court to have the deed of partition executed and registered. (4) The parties will remain bound to accept the lot given to him even if any variation in price comes to light in future and no claim of compensation will be admissible. (5) The terms of the agreement in all respects shall be binding on the heirs and legal representatives of each of the parties. 5. Disputes arose soon after that agreement was executed. Title Suit No. 30 of 1955 was instituted by Sukumar claiming partition of joint properties by metes and bounds according to the shares of the brothers and also for accounts. That suit was filed on July 16, 1955. In the plaint, originally filed, five items of properties were mentioned in Schedule ka of that plaint and prayed for decree for accounts against the defendant Nos. 1 and 2 for the three years preceding the suit. Uncle Banwarilal was joined as pro forma defendant in the plant, but no relief was prayed against him. The plaintiff Sukumar's case was: The plaintiff has all along stayed away from his native village in connection with his service and the defendants have been looking, after everything and making realisation of rents etc. in respect of the suit properties and have not paid anything to the plaintiff' in respect of the same. Under that circumstances the plaintiff made repeated requests to the defendant Nos. 1 and 2 and the said executor the defendant No. 3 to make over to the plaintiff to his satisfaction his own share in accordance with the adequate income of the suit properties. Under that circumstances the plaintiff made repeated requests to the defendant Nos. 1 and 2 and the said executor the defendant No. 3 to make over to the plaintiff to his satisfaction his own share in accordance with the adequate income of the suit properties. At first, they did not pay any heed to that for a long time, subsequently they jointly, fraudulently and in collusion with each other and on misleading the plaintiff in various ways and on suppressing all the facts and on taking advantage of his total ignorance of the properties in suit and the income thereof by reason of his staying away from home got a void and fraudulent deed of agreement executed on giving out that an amicable partition would be effected of the agreement executed, and uptil now there has not been any deed of portion. This plaintiff submits that the aforesaid deed of agreement is a void, inoperative, fraudulent and collusive document, and the same has been got executed on taking advantage of income etc. and the value of the properties as the result of his staying away from his native village. The property which has been proposed to be allotted to the plaintiff under the terms of the said deed of agreement is a property under the ownership and possession of thika tenants with bemeadi (not for fixed term) and meadi (for a term) leases and fetches a very small income and is of a very small value, and the income thereof is very small on the other hand, the property in respect of which the defendant Nos. 1 and 2 have made provision for taking is of a far higher value and is a property yielding a far higher income. In these circumstances, the plaintiff has long repudiated the aforesaid agreement and the rent which he has so long realised has been realised by him on behalf of all the co-sharers. 6. The defendant Nos. 1 and 2 filed a joint written statement on October 11, 1955. They contested the suit for partition on the ground that it was not maintainable for the reasons that (1) The plaintiff had agreed to take the properties given to his share after accounts had been settled upto the date of agreement. (2) All the parties took possession of their own specified properties according to the agreement reduced to writing. They contested the suit for partition on the ground that it was not maintainable for the reasons that (1) The plaintiff had agreed to take the properties given to his share after accounts had been settled upto the date of agreement. (2) All the parties took possession of their own specified properties according to the agreement reduced to writing. (3) Parties agreed to effect an amicable partition and took possession of the properties in the share of each specified in the deed of agreement executed by the parties. But 'Final Partition' deed was not executed at that time. (4) The deed of agreement is a genuine and bona fide document and it is not at all void, collusive or fraudulent. The defendant's' case was: .....................After the probate of the Will and the codicils executed by late Harihar Bandopadhyay the grand-father of the plaintiff and of these defendants had been obtained, the plaintiff was aware of the properties to which the plaintiff and these defendants became entitled on the basis of the said will and codicils and was also fully aware of the income and usufruct of the same to the plaintiff. Inspite of his staying out side his native place in connection with his service, he used to come to Howrah at times and would receive to his satisfaction the share of profit of the income and usufruct of the 'properties due to him or he would give directions to send to him at the place of his service or at his residence at Midnapore and these defendants used to send the same to him accordingly. At the time of the execution of the deed of agreement by the plaintiff and these -defendants mentioned in para. 4 of the plaint, the plaintiff came to be fully apprised of and satisfied as to the market value of the suit properties, on personal enquiry and on causing enquiries made by 'relatives and friends and as regards the properties obtained in terms of the agreement he stipulated, agreed and promised to accept the same on account of his share. 4 of the plaint, the plaintiff came to be fully apprised of and satisfied as to the market value of the suit properties, on personal enquiry and on causing enquiries made by 'relatives and friends and as regards the properties obtained in terms of the agreement he stipulated, agreed and promised to accept the same on account of his share. Although those properties were let out to tenants the plaintiff was satisfied that all of them were liable to ejectment and as the said properties were very much valuable he made a proposal to take the same in his share and these defendant agreed to the same and gave possession of the same to the plaintiff according to the terms of the said deed of agreement. The income of this properties is not very small on the date of the said date of agreement; the value of the properties which these defendants stipulated to take in the share of each of them under the terms of the said -deed of agreement was not higher than the value of the properties which the plaintiff stipulated to take under the terms of the said deed of agreement. In this regard the plaintiff and these defendants were satisfied that the properties allotted to each of them on the basis of the said deed of agreement were of equal value. Accordingly, they admitted and promised to accept the properties allotted in their shares and, as they took possession of their own specified properties, the plaintiff and these defendant reduced the said deed of agreement to writing and they further stipulated and promised that in future, even any disparity in the value of their own 'specified properties comes to light, the plaintiff and these defendants will be found to accept those properties which they stipulated and promised to accept in their shares in terms of the said deed of agreement and of which they took possession. There would be no deviation from that and none of the parties would be competent to make any claim for compensation in respect thereof or claim for any other kind of compensation. Even if done, the same would be rejected and disallowed. In these circumstances, the said deed of agreement still stands and, as it has not been annulled or cancelled. Even if done, the same would be rejected and disallowed. In these circumstances, the said deed of agreement still stands and, as it has not been annulled or cancelled. the plaintiff is not en titled to get any decree contrary thereto in this suit and the plaintiff is estopped in law from making any kind of claim contrary thereto. 7. On similar allegations the defendants, Indu and Gora filed T. S. No. 53 of 1955 on October 14, 1955. Sukumar is the only defendant in that suit and he contested that suit by filing a written statement wherein his allegations are practically the same as in the plaint in T. S. No. 30 of 1955. 8. On April 6, 1956, plaintiff made an application for amendment of the plaint in which he prayed for including three items of properties as joint properties, namely : (1) Holding No. 20, Kali Banerjee Lane, (2) press known as Naya Press at Holding No.26/1, Kali Banerjee Lane and (3) Morris Sedan Body Car No. WBH 812 in Schedule ka of the plaint. He alleged that: ...This plaintiff has further come to learn that on 1st January last the grand-father of this plaintiff executed a deed of trust and under the said deed of trust the defendant No.3 is the trustee. The defendant Nos. 1 and 2 have all alone received on behalf of all the parties the entire income of the said trust estate, the said money is also the joint money of the plaintiff and defendant Nos. 1 and 2. The defendant Nos. 1 and 2 have acquired in the name of the defendant No.2 the property described in Item No.1 of the schedule to this petition with the aforesaid joint money stated in paragraphs 2, 3 and 4 and have been running a press described in Item No.2 of the schedule and have acquired a motor car described in Item No. 1. The aforesaid properties described in Items No.1, 2 and 3 of the schedule having been acquired with joint money constitute the joint properties of the plaintiff and the defendant Nos. 1 and 2 and the same also are subject to partition in the present suit. 9. That prayer for amendment of the plaint was allowed by the trial Court by order No.17 dated May 25, 1956. The defendant Nos.1 and 2 filed an additional written statement on August 3, 1956. 1 and 2 and the same also are subject to partition in the present suit. 9. That prayer for amendment of the plaint was allowed by the trial Court by order No.17 dated May 25, 1956. The defendant Nos.1 and 2 filed an additional written statement on August 3, 1956. On these pleadings issues were framed on November 23, 1955, and these were amended on February 12, 1956 in T. S. No. 30 of 1955. Issues in T. S. No. 53 of 1955 were framed on March 15, 1956. 10. On August 30, 1956 in Suit No. 53 of 1955 the plaintiff filed a petition praying for analogous hearing of that suit with the other Suit No. 30 of 1955. No objection was raised to that prayer and the Court by Order No. 19 dated September 12, 1956, allowed the prayer. 11. On January 12, 1957, Sukumar's son Ajit applied for being added as co-plaintiff in Suit No. 30 of 1955, but by Order No. 30 dated January 14, 1957, that prayer was rejected by the learned Subordinate Judge holding that the portion suit was between holders of life interest and that partition would mean separate possession and enjoyment depending on the nature and duration of the life interest. 12. Trial commenced on January 22, 1957. After P.W.1 Sukumar was examined and cross-examined and D.W.1 Gora was examined and cross-examined in part on that date, and several documents were proved by D.W. 1; on the next adjourned date of hearing i. e. January 28, 1957, an application was made by the plaintiff Sukumar for amending the plaint by inserting in the prayer portion 'prayer for accounts since the death of father i.e. since 1939'. On hearing the parties by Order No. 37 dated January 29, 1957 that prayer was refused. 13. Both the defendants Nos. 1 and 2 and also the pro forma defendant No. 3 deposed as D. Ws. 1, 2 and 3. Nani Gopal was examined as D. W. 4. Several letters were proved by the defendants as Ex. D series and also some money order coupons and receipts were proved as Ex. B series and Ex. G. 14. On consideration of the oral and documentary evidence the learned Subordinate Judge held: (1) The agreement Ex. A is not vitiated by fraud. (2) The brothers began possessing the properties separately according to allotments made by the agreement. D series and also some money order coupons and receipts were proved as Ex. B series and Ex. G. 14. On consideration of the oral and documentary evidence the learned Subordinate Judge held: (1) The agreement Ex. A is not vitiated by fraud. (2) The brothers began possessing the properties separately according to allotments made by the agreement. (3) The items of properties added as items 5, 7 and 8 in the plaint of T. S. No. 30 of 1955 are not ejmali properties but personal properties of the other two brothers Indu and Gorachand. (4) The accounts had been adjusted before the agreement and there cannot be any question of accounting after the agreement. So the plaintiff in T. S. No. 30 of 1955 is not entitled to any accounts from the defendants in that suit (5) There was already a partition between the parties and they being in possession, accordingly, there can be no question of fresh partition. There has been in fact a partition between the brothers on the agreement and there can be no order for fresh partition in T.S. No. 30 of 1955. (6) The suit for specific performance being within three years of the date fixed for performance of the contract, it is not barred by limitation and T. S. No. 53 of 1955 should succeed. 15. Basing his decision on those findings the learned Subordinate Judge has dismissed T. S. No. 30 of 1955 and has decreed T. S. No. 53 of 1955. 16. Against these two decrees Sukumar has preferred the appeals in this Court. F. A. No. 214 of 1957 against the dismissal of T. S. No. 30 of 1955 and F. A. No. 215 of 1957 against the decree passed in. T. S. No. 53 of 1955. Those two appeals arising from the same judgment of the learned Subordinate Judge have been heard analogously in this Court. 17. Mr. F. A. No. 214 of 1957 against the dismissal of T. S. No. 30 of 1955 and F. A. No. 215 of 1957 against the decree passed in. T. S. No. 53 of 1955. Those two appeals arising from the same judgment of the learned Subordinate Judge have been heard analogously in this Court. 17. Mr. Bankim Chandra Banerjee, the learned Advocate appearing for the appellants in both the appeals, attacked ail the findings of the learned Subordinate Judge, particularly the finding on the questions of important fact regarding the circumstances in which the agreement was brought into existence, the right claimed for accounts and also whether the three items of properties, namely, the motor car, the printing press and the premises No. 20 Kali Banerjee Lane, were acquired by ejmali funds and, therefore, should be considered to be ejmali properties. But Mr. Banerjee mainly relied on a point of law which we shall discuss after we have dealt with the other finding, by examining oral and documentary evidence produced by parties. 18. First we take up circumstances alleged by the plaintiffs in T. S. No. 30 of 1957 for contending that the agreement Ex. A initiated by fraud and collusion. His case is that from his early boyhood he was living elsewhere and he had no knowledge about any details of the properties left by his father Abani. These were looked after and managed by his two step-brothers who are principal defendants in T. S. No. 30 of 1955 guided by their paternal uncle Banwarilal who was trustee under the will of Harihar since Abani's death in 1939. Just before his retirement from service, due to difficulties that arose in the matter of convenience and enjoyment of joint properties, he was insisting to have the joint properties partitioned, but that having been refused he complained to uncle Banwarital orally and also by letters for effecting a partition of joint properties between himself and his two step-brothers. Banwarilal is candidates and had great affection for those two step-brothers of the plaintiff who were living at Howrah, but the plaintiff who was living in Midnapore by building a house there was comparatively estranged from Banwarilal. In these circumstances, it is alleged that in July 1952 the deed of agreement was prepared without consulting him. Banwarilal is candidates and had great affection for those two step-brothers of the plaintiff who were living at Howrah, but the plaintiff who was living in Midnapore by building a house there was comparatively estranged from Banwarilal. In these circumstances, it is alleged that in July 1952 the deed of agreement was prepared without consulting him. It suppressed not only the details of items of properties included in it but also left out some items' of joint property acquired by joint funds in the hands of his step-brothers. Valuation of properties were purposefully made unreal and division was not made according to shares on proper valuation. He had no discussion, made no enquiries about worth and the value of properties allotted to him but after the deed was prepared in his absence, he came to Howrah for a day on July 16, 1952, and signed the agreement trusting on the assurance of Banwarilal that it had been justly made and went back to Midnapore the same day. He discovered. 'Soon thereafter that there had been collusion and fraud by suppression of material facts to deprive him of his just share of joint properties and protested against it. 19. We have considered the evidence in the case with the assistance of the learned Advocates for both the parties and we agree with the finding of the learned Subordinate Judge that the plaintiff in T.S. No. 30 of 1955 has failed to prove any fraud Dr. collusion as would vitiate the agreement. While the circumstance that the plaintiff had been living elsewhere and, therefore, had not the knowledge of all the details of joint properties, their income or trust valuation looks probable and also his insistence to have the joint properties divided amongst the three brothers is clearly shown by letters, ear1iest of which is Ex. D dated January 31, 1951, written by Sukumar himself to one of his step-brothers Indu and also Ex. D dated October 15, 1951, is clearly established. The letter Ex. D5 written by Gorachand to Sukumar on June 21, 1952, clearly shows that by assistance of uncle Banawarilal arrangements had been made to 'complete the talks' with that uncle and others and Sukumar was instructed to take leave for 6/7 days and come to Howrah within a week. The deed of agreement, Ex. The letter Ex. D5 written by Gorachand to Sukumar on June 21, 1952, clearly shows that by assistance of uncle Banawarilal arrangements had been made to 'complete the talks' with that uncle and others and Sukumar was instructed to take leave for 6/7 days and come to Howrah within a week. The deed of agreement, Ex. A, which bears a stamp of Rupee One shows that the stamp paper was purchased at Howrah in the name of Sukumar on July 12, 1952. Sukumar has not denied in his depositions the correctness of the said endorsement showing purchase of that paper by himself. That indicates that Sukumar was in Howrah on July 12, 1952, which was Saturday, and it is probable that he had arrived in Howrah even a day before, i.e. on July 11. During the period from that date upto July 16 there was, therefore, opportunity to discuss some details about division of joint properties, though all enquiries about the proper value of each item or the extent of total joint property attributed to Sukumar by the defendants may not be wholly true. We Consider it quite probable that in many respects Sukumar acted on reliance on impartiality of Banwarilal and the assurances about just division he might have been given. There is internal evidence in the terms of the deed Ex. A that in preparing the document there was anxiety on 'the part of the defendants to pin down Sukumar, a life estate-holder like themselves, irrevocably in perpetuity even to the extent of his sons and heirs who are the absolute owners of the vested remainder of the joint properties. To that extent the deed is bearing a character of a scheme, to get it executed by Sukumar incorporating in it terms which Sukumar did neither comprehend nor intend. That however, does not constitute fraud so as to invalidate it. It only has bearing on the question of its effect, or in other words, how far its terms can be enforced as a concluded contract against Sukumar. 20. Regarding the value of each item of property and valuation of each lot and also total value of joint property, evidence on both sides is; inconclusive. Therefore, there is no sufficient evidence for holding that values mentioned in the deed are so unconscionably low as to be itself evidence of fraud. 21. 20. Regarding the value of each item of property and valuation of each lot and also total value of joint property, evidence on both sides is; inconclusive. Therefore, there is no sufficient evidence for holding that values mentioned in the deed are so unconscionably low as to be itself evidence of fraud. 21. Regarding Sukumar's claim for a decree for accounts against Indu and Gorachand and also Banwarilal for the three years immediately preceding the suit, evidence shows that some money were realised by those defendants on behalf Sukumar from the trust fund and also from the properties that were allotted to Sukumar by the deed Ex. A. But? evidence also shows that those amounts were paid to Sukumar sometimes directly and sometimes through his son Ajit alias Naku; on some occasions receipts were taken for those payments, on some others, neither any receipts was taken nor entered in any account. As the relationship between the parties were very close, in the total circumstances appearing from evidence we are inclined to accept the defendants' version that accounts were roughly rounded up either every month or whenever Sukumar or his son would come to Howrah and there was never any outstanding ejmali fund in the hands of the defendants nor any money due to Sukumar or from them, we also believe the defendants' version that accounts were settled between the brothers before the deed Ex. A was executed on July 16, 1952. That is the reason why that documents does not mention accounts at all. Sukumar is not entitled to any decree for accounts either in respect of the period before that or the period thereafter upto the date on which T.S. No. 30 of 1955 was filed. 22. Evidence regarding the three items of properties, that is, the motor car, the printing press and the premises No. 19 Kali Banerjee Lane, is that those were purchased by Indu and Gorachand. Sukumar's. claim is that those were purchased by the joint funds and, therefore, should be included in the joint properties. As we have found that joint funds had not remained in the hands of those two defendants, that provides complete answer to Sukumar's. claim that those three items are joint properties. Evidence has been given by the defe.1dants regarding the source of money by which those were purchased as personal properties of the defendants. As we have found that joint funds had not remained in the hands of those two defendants, that provides complete answer to Sukumar's. claim that those three items are joint properties. Evidence has been given by the defe.1dants regarding the source of money by which those were purchased as personal properties of the defendants. We hold that evidence to be reliable and agree with the findings of the learned Subordinate Judge that those are not joint properties. 23. On behalf of the appellant Sukumar the learned advocate Mr. Bankim Chandra Banerjee has at the outset raised a point of law (which was not raised at all in the trial Court) and contended that the judgment and decree in both the suits are vitiated by an error of fundamental nature. Mr. Banerjee contends that the document, Ex. A by its own force was intended to and did purport to create separate title by extinguishing joint right by partition in properties valued more than one hundred rupees and, therefore, it came within section 17(1)(b) of the Registration Act and required to be registered. Not being registered, the agreement Ex. A, therefore is hit by section 49 of that Act and could neither be received as evidence nor affect the jointness of the property. By that error the learned Subordinate Judge has not only admitted that document in record as evidence of transaction of partition of property but also held on the basis of that document that there was in fact a partition accordingly, and he also has decreed the suit for specific performance by relying on that inadmissible evidence. For that reason Mr. Banerjee assailed the decision, and both the decrees passed by the learned Subordinate Judge as erroneous and liable to be set aside. 24. To meet this attack launched in support of the appeals by Mr. Banerjee on behalf of the respondents, their learned Advocate Mr.Panchanan Pal emphasised that this point was not taken in the trial Court. But Mr. Pal conceded that as it is a point of law it was open to the appellant to raise it in the appeal for the first time. He proceeded to answer the point by arguing that the agreement, Ex. A, did not really come within section 17(1)(b) of Registration Act and, even it did, it is saved by the proviso in section 49 of Registration Act added by amendment in 1929. He proceeded to answer the point by arguing that the agreement, Ex. A, did not really come within section 17(1)(b) of Registration Act and, even it did, it is saved by the proviso in section 49 of Registration Act added by amendment in 1929. 25. That argument was sought to be substantiated by relying on the deed, Ex. A, which itself recites that it is only an agreement by which parties sought to bind themselves to divide the joint properties in a particular way and also stipulated for execution and registration of a deed of 'Final Partition'. By those characteristics Mr. Pal first endeavoured to show that it was not an instrument by which any new title or right was either created or conferred, but only a mode of division was agreed upon, real partition deed being postponed for future. This part of his argument, however, founded on the recitals of that document and also on the findings of the learned Subordinate Judge as to what was achieved by it, which findings Mr. Pal was supporting to defend the dismissal of the partition suit. On careful examination of the contents of the document, Ex. A, and evidence adduced by the defendants 'we agree that the instrument had, in fact. effected a partition of joint properties as was intended and parties acted by entering into separate possession according to the terms of that document. It is true, a future deed of "Final Partition' was mentioned in Ex. A which also employed language which shows anxiety of the draftsman to avoid the difficulties that may flow from sections 17 and 49 of the Registration Act. In our view, the real character of the deed, Ex. A, was to effect a partition of joint properties by its own force. It was called an agreement and the language was employed in the body only as a device to escape stamp duty and avoid registration as means to void paying proper stamps on the value of property. It effected partition and that partition was acted upon. What is a partition between joint owners except that it is a mixture of mutual sun-ender and conveyance of title both occurring simultaneously to bring the result of extinguishment of joint or common ownership and creation of exclusive and separate ownership? It effected partition and that partition was acted upon. What is a partition between joint owners except that it is a mixture of mutual sun-ender and conveyance of title both occurring simultaneously to bring the result of extinguishment of joint or common ownership and creation of exclusive and separate ownership? It both extinguishes and creates title and also declares new and separate right title and interest in the distinct allotments of properties. That declaration is in our view, a declaration of will and not a mere statement of act and comes within section 17(1)(b) according to the view expressed by West J. in (1) Sakhalam Krishnaji v. Madan Krisimoji, (1581) ILR 5 Bom. 232. For our view of rea1 and legal connection of partition as we have mentioned about, we find support in the judgment of a Division Bench of this Court in (2) Khirodu Sundari Dasya v. Chuni Lal Chaudhuri, (1945) 49 CWN 779. Same view has also been taken in Patna High Court in a case in (3) Sk. Md. Zajir v. Sk. Amiruddin, AIR 1963 Pat. 108 (112). That being the true character of the instrument, that is Ex. A, there en be no doubt that it was an instrument which by its own force and effect was purporting to create, declare and also extinguish right title and interest in immoveable property of the value within section 17 (1) (b). So, it required to be registered. 26. Mr. Pal sought to escape that result by arguing that unless an instrument by its own terms purport to be a document of title, merely because it is an agreement to bring into existence. such a document, section 17(1)(b) shall not apply. That argument is not sound. For the purposes of that section what is relevant and decisive is not what the instrument recites, but what is the intention behind it and what result it seeks to achieve. That question has in many cases been considered, and decided, in some of which the question arose in respect of arbitration awards. One such is a case, (4) Nani Bala Saha v. Ram Gopal Saha (1944) 48 CWN 721. In that case, question arose whether an award made on arbitration affecting immoveable property of the value above Rs. 100 required to be registered and whether for want of registration it would be hit by section 49 of the Registration Act. One such is a case, (4) Nani Bala Saha v. Ram Gopal Saha (1944) 48 CWN 721. In that case, question arose whether an award made on arbitration affecting immoveable property of the value above Rs. 100 required to be registered and whether for want of registration it would be hit by section 49 of the Registration Act. The Division Bench (R. C. Mitter and Sharpe JJ.) held that because the parties intended that the award itself would have effect on their title, the award was compulsorily registrable under section 17(1)(b) of the Registration Act and then held :- As the award is inadmissible in evidence by reason of the provisions of Section 49 of the Registration Act on the principle that "of things that do not appear and things that do not exist the reckoning in a Court of law is the same" (Seaton v. Burnand, LR (1900) AC 135 at p. 139, and Radha Kishun v. Khurshed Hossein, LR 47 IA 11 at p. 16 (1919), it must be taken, so far as these proceedings are concerned, that the award does not exist. 27. Same view was taken by the Madras High Court in a case in (5) K. Mahammad Ghouse Sahib v. Jamila Bi, AIR 1950 Mad 433 , fact of which case is before us. In that case, parties effected a partition by executing an unregistered partition deed. It was held :- Where such terms could only be proved by producing a document affecting rights in immovable property, the provisions of Sections 17 and 19, Registration Act, should be complied with. Unless the partition is proved in the manner known to law, the Court cannot pass a compromise decree. It cannot be proved by producing a document which is inadmissible in evidence... Applying the aforesaid test can it be said that the agreement embodied in the partition deed is a collateral purpose within the meaning of the proviso to section 49, Registration Act? We think not. The transaction on which the learned Advocate General seeks to rely viz. the agreement to divide, is not independent or divisible from the transaction to effect which the document was executed. The parts seek to rely upon the partition deed to prove that the parties agreed to divide the properties between themselves. There is no independent transaction collateral to the main purpose of the document viz. dividing the property. the agreement to divide, is not independent or divisible from the transaction to effect which the document was executed. The parts seek to rely upon the partition deed to prove that the parties agreed to divide the properties between themselves. There is no independent transaction collateral to the main purpose of the document viz. dividing the property. A party can rely upon an agreement implied in a sale deed in a suit for specific performance or as evidence of part performance of a contract not because the agreement is a transaction collateral to the partition deed but because of the express provisions of the proviso. We therefore hold that the appellant could not rely upon the partition deed for proving the agreement to compromise alleged to be implied in the partitin deed. But a Full Bench of Patna High Court took a contrary view in the case of (6) Seonarayan Lal v. Prabhu Chand, AIR 1958 Pat. 252 (F.B.). That case went up in appeal to the Supreme Court and the decision of the Supreme Court in (7) Champalal v. Mst. Samrathbai, AIR 1960 SC 629 overruled the Patna view and accepted the view of Calcutta and Madras High Courts above mentioned as correct law. 28. In a very recent decision in (8) Sati h Kumar v. Surinder Kumar, AIR 1970 SC 833 again law has been stated by the Supreme Court, J. in a concurring judgment has observed: It is one thing to say that a right is not created it is an entirely different thing to say at the right created cannot be enforced without further steps. For the purpose of Section 17 (1) (b) of the Registration Act, all the we have to see is whether the award in question purports or declare, assign, limit or extinguish whether in present or 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 does, it is compulsorily registrable. In the aforementioned Full Bench decisions sufficient attention has not been given to Section 17 of the Registration Act. The focus was entirely on the provisions of the Arbitration Act and there again on the enforcement of the award and not in the making of the award. A document may validly create right, but those rights may not be enforceable for various reasons. The focus was entirely on the provisions of the Arbitration Act and there again on the enforcement of the award and not in the making of the award. A document may validly create right, but those rights may not be enforceable for various reasons. Section 17 does not concern itself with the enforcement of rights. That Section is attracted as soon as its requirements are satisfied. There is no gain saying the fact that the award with which we are concerned in this case, at any rate, purported to create rights in immovable property of the value of rupees more than one hundred. Hence, it is compulsorily registrable. 29. Mr. Pal sought to rely on the case of (9) Kashinathsa Yamosa Kabadi v. Narsingan Bhaskarsa Kabadi. AIR 1961 SC 1077 (1084, para 23) laying particularly emphasis in the passage at para 23. In is enough to point out that the question in that case arose under the Stamp Act and not under the Registration Act. 30. An old decision in a case, facts of which were remarkably similar in those in the present case, is reported in (10) Upendra Nath Banerjee & Anr. v. Umesh Chandra Banerjee, (1910) 15 CWN 375, Mr. Pal in his accustomed fairness placed and discussed before us that decision of a Division Bench composed of Mukherjee and Carnduff JJ., we quote below a passage from that judgment, which passage though may have been obiter dictum in that case (as was contended by Mr. Banerjee before us) provides us with very good guidance for proper and just decision in this appeal. The relevant passage reads: It may be conceded......that although an unregistered deed of sale is not admissible in evidence as a conveyance, it is admissible in a suit for specific performance of the contract of sale...... It is manifest that the deed is not admissible to establish the fact that the property was so partitioned. The relevant passage reads: It may be conceded......that although an unregistered deed of sale is not admissible in evidence as a conveyance, it is admissible in a suit for specific performance of the contract of sale...... It is manifest that the deed is not admissible to establish the fact that the property was so partitioned. We must hold, therefore, that section 49 of the Registration Act excludes the document with the result that section 91 of the Evidence Act excludes other evidence also in support of the transaction, because the written instrument is not collateral but is of the very essence of the transaction......In fact, it is obvious that, if the contrary view were maintained, the principle on which a document is deemed part of the essence of the transaction and consequently the sole as well as the primary proof of it would be completely negatived. That principle is, as Domat puts it (Civil Law, 3, 6, 2), that when men agree to preserve by writing the remembrance of past events of which they wish to create a memorial either with a view to lay down a rule for their own guidance, or in order to have in the instrument a lasting proof of the truth of what is written the truth of the written acts must be established by the act themselves, that is by the inspection of the originals. We are not unmindful that clause (h) of section 17 of the Registration Act, excepts from registration documents which doubt themselves create or declare any right, title or interest in immovable property, but merely create a right to obtain another document which when executed will create or declare such right, title or interest. But,..... .clauses (b) and (h) of section 17 may be reconciled if we hold that a document though not admissible as creating an interest in land, is receivable in evidence for a callateral purpose, namely, for the purpose of obtaining specific performance of the agreement. 31. That was pronounced in 1910 regarding the law as it then stood. Law has been amended• since for meeting the difficulties discussed in the passage we have quoted. That amendment has not only added proviso in section 49 but also in Clause (VI) of section 17(2) for the words 'or an award' was substituted by the same amending Act by what now appears in that clause. Law has been amended• since for meeting the difficulties discussed in the passage we have quoted. That amendment has not only added proviso in section 49 but also in Clause (VI) of section 17(2) for the words 'or an award' was substituted by the same amending Act by what now appears in that clause. That amendment has to by kept in view for proper understanding of old decisions in cases concerning awards and for drawing proper guidance for true position of law as it now stands. 32. Upon our view of the character of the deed. Ext. A, and following the decisions we have mentioned above, we hold against Mr. Pal's contention and accept Mr. Banerjee's contention that the deed, Ext. A, required to be registered under section 17(1)(b) and not having been registered on payment of proper stamp, it is inadmissible as evidence of the transaction and contents of the deed cannot be used in evidence. Not only so, by the provision of section 91 of the Evidence Act oral evidence of contents of that document reduced to writing is inadmissible. 33. When those are excluded there is no evidence that there was a previous amicable partition of the entire ejmali properties according to shares of each co-sharer by metes and bounds. No evidence of and oral partition is, therefore, available. It has to be remembered that mere separate possession of some portions of ejmali property is not partition that may preclude right to obtain a decree for partition unless; evidence shows that there was partition of all ejmali properties according to shares by balancing equities amongst all the co-sharers. In such state of evidence properly and legally available the learned Subordinate Judge's conclusion that the plaintiff in T. S. No. 30 of 1955 is not entitled to a decree for partition cannot be sustained. On the admitted facts and pleadings Sukumar is entitled to a preliminary decree for partition of his 1/3rd share in the ejmali properties allotted to his father' Abani in which, under the Will of Harihar, he has a life estate only. 34. Mr. Pal next contended that under the proviso in section 49 of Registration Act, the deed Ext. On the admitted facts and pleadings Sukumar is entitled to a preliminary decree for partition of his 1/3rd share in the ejmali properties allotted to his father' Abani in which, under the Will of Harihar, he has a life estate only. 34. Mr. Pal next contended that under the proviso in section 49 of Registration Act, the deed Ext. A though unregistered is available in T. S. No. 30 of 1955 for use as evidence of any collateral transaction and in T. S. No. 53 of 1955 as evidence of contract in that suit for specific performance. The two parts of that contention, one concerning. T. S. No. 30 of 1955 and the other concerning T.S. No. 33 of 1955 need be separately considered. 35. Law is now settled firmly that use as evidence of any collateral transaction not required to be affected by registered instrument occurring in proviso in section 49' means, in the facts of the present case, only for explaining the nature of possession that each co-sharer may have exercised in respect of any particular portion of ejmali property and no more. 36. The transaction in T. S. No. 30 of 1955 is only possession not separation of exclusive title by partition. In a partition suit such possession is relevant consideration only at the stage of making separate allotments according to shares and balancing equities by respecting present possession of each party as far as may be. That is a stage after a preliminary decree for partition has been made by declaring respective shares and specifying what are the ejmali properties that require to be' partitioned by metes and bounds. That is at the stage of proceedings before the Commissioner for partition, when one is appointed at the earliest, and at the stage of final decree for partition ultimately after the Commissioner has made his report. At the stage of preliminary decree for partition no more than usual general discretions are necessary. Separate possession by any co-sharer of some portion of ejmali property by itself is not an obstruction in making a preliminary decree to which the plaintiff is otherwise entitled. 37. Mr. Banerjee for the appellant has not objected to that use of Ext. At the stage of preliminary decree for partition no more than usual general discretions are necessary. Separate possession by any co-sharer of some portion of ejmali property by itself is not an obstruction in making a preliminary decree to which the plaintiff is otherwise entitled. 37. Mr. Banerjee for the appellant has not objected to that use of Ext. A as evidence of collateral transaction but has only insisted that such use should be only at the relevant stage and only for that is available for use on evidence of collateral transaction of a separate possession only to that limited extent and not for showing a transaction of division of the ejmali properties. We also accept Mr. Banerjee's contention that the transaction of separate possession by each co-sharer for partition according to shares with usual directions for maintaining present possession of specific portions of joint property as far as possible by adhering to justice and convenience of all the parties and balancing equities between them. 38. We have already considered evidence in the case on the point of fraud, collusion alleged by the plaintiff in Suit No. 30 of 1955 and assertion of discussions enquiries and knowledge of all facts attributed to him by the defendants in that suit, and we have agreed with the findings of the trial court on those points. Now, we may conveniently deal with Mr. Pal's contention of use of Ext. A as evidence in T. S. No.53 of 1955 for enforcing specific performance of the agreement to execute and register a partition deed. 39. We have already held that the deed Ext. A was intended to be and has the character of a document by which partition was purported to be effected by its own force and, as such, it is hit by section 17(1)(b) and section 49 of the Registration Act. Mr. Pal has raised question that under the proviso to section 49 the deed Ext. A which is an unregistered document effecting immovable property may be received as evidence of a contract in the suit for specific performance. Therefore, he contends that Ext. A should be received in T. S. No. 53 of 1955 as evidence of contract to execute and register a partition deed dividing the joint properties in the manner it appears in Ext. A. 40. This contention of Mr. Therefore, he contends that Ext. A should be received in T. S. No. 53 of 1955 as evidence of contract to execute and register a partition deed dividing the joint properties in the manner it appears in Ext. A. 40. This contention of Mr. Pal is plausible because it undoubtedly finds support in the language in the proviso. It is true that before that proviso was added in section 49 by amendment in 1929, well-known decisions of the Privy Council in the case of (11) Rani Hemanta Kumari v. Midnapore Zamindari Co., (1919) LR 46 IA 240 and (12) Skinner v. Skinner, (1929) LR 56 IA 363 and also the decision of this Court in the case of (13) Sanjib v. Santosh, (1921) 26 CWN 329 provide instances where unregistered Written documents embodying agreements effecting immovable properties indirectly, though not directly, were refused to be admitted in evidence in suits for specific performance. But, even there in one decision of this Court in the case of (14) Puchha Lal v. Kunj Behari (1913) 18 CWN 445 Jenkins, C. J. treated the unregistered deed as evidence of contract to establish a defence under the doctrine of part performance. At the time those decisions were pronounced, doctrine of part performance was merely a doctrine of equity. It has since been a statutory right under section 53A of the Transfer of Properties Act and section 27 A of the Specific Relief Act. The proviso was added to section 49, Registration Act, by the same Amending Act that inserted section 53A and section 27 A in those two statutes by recognitions of the right given under doctrine of part performance which arose from the fact of delivery of possession of immovable property. There is no doubt, therefore, the proviso supersedes the decision in the case of Skinner v. Skinner, (T929) LR 56 IA 363 and Sanjib v. Santosh, (1921) 26 CWN 329. It is, however, curious that the proviso in the relevant part there it mentions suit for specific performance, has not limited its application to cases where there has been delivery of possession. Sir D. F. Mullah in his famous commentary on this branch of law (2nd edition published in 1(31) noted that as curious fact and it was also observed to be so by Dr. Sir D. F. Mullah in his famous commentary on this branch of law (2nd edition published in 1(31) noted that as curious fact and it was also observed to be so by Dr. B. K. Mukherjee, J. in 1937, in his concurring but separate judgment delivered in Division Bench of this. Court (Nasim Ali and B. K. Mukherjee, JJ.) in the case of (15) Kumar Gokul Chandra Law v. Hazi Mohammad Din, (1937) 42 CWN 97 (105). After referring to previous decisions and the reason for inserting section 27 A in the Specific Relief Act, Mukherjee, J. observed : It is curious, however, to note in this connection that the proviso to section 49 of the Registration Act which was inserted by the same Amending Act is not confined to cases where there has been delivery of possession or other acts of part performance, and it is laid down in the most general fashion that any unregistered document affecting immovable properties and required by the Act or by the Transfer of Property Act to be registered may be received as evidence of contract in a suit for specific performance under Chapter 2 of the Specific Relief Act or for proving part performance under section 53A of the Transfer of Property Act. The Legislature, it seems, has made an exception to the general rule contained in this proviso by section 27A of the Specific Relief Act. If the contract to be enforced is a contract to lease within the meaning of section 27-A, it is incumbent upon the plaintiff to show not only a contract in writing signed by both the parties but also delivery of possession of the property in part performance of the contract. 41. The second part of the quotation above is not strictly relevant far the purpose of this case which is not a case of agreement to lease but is a case of alleged agreement to partition, except that the said passage helps to reveal the view of the learned Judge (Mukherjee, J.) that the proviso. 41. The second part of the quotation above is not strictly relevant far the purpose of this case which is not a case of agreement to lease but is a case of alleged agreement to partition, except that the said passage helps to reveal the view of the learned Judge (Mukherjee, J.) that the proviso. In section 49 of the Registration Act is now the general rule far suits far specific performance to which section 27 A of the Specific Relief Act is an exception So' far that the latter section provides that in ease of specific performance of agreement to' lease, delivery of possession must be shown to' have been given and taken in part performance of the contract which is not necessary in case of special performance of other agreements which may be enforceable under section 12 of the Specific Relief Act. 42. If the suit far specific performance would be to enforce the agreement for partition of joint properties, then the written agreement Ex. A though unregistered could be received in evidence as enacted in the proviso in section 49, Registration Act. Important question, therefore, is whether in the facts and circumstances proved by evidence in this case and accepted as true by the learned Subordinate Judge whose finding an those points we have held to be correct, the suit for specific performance would at all lie under section 12 of the Specific Relief Act and, even if it would, whether the suit should be dismissed under section 21 of that Act. 43. Far finding proper answer to' that apparently simple but intrinsically difficult question in this case, it is necessary to keep in mind that relief by enforcing specific performance is a discretion remedy, though the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles, as is expressly provided in section 22 of that Act. Moreover, the broad facts that stare in the face in this case are: (1) All the parties to agreement Ex. A have life estate under the Will of Harihar, vested remainder in absolute interest having been given to their sons none of wham are parties in the present litigation. (2) Possession appears to' have been separately taken of specific portions by each party. A have life estate under the Will of Harihar, vested remainder in absolute interest having been given to their sons none of wham are parties in the present litigation. (2) Possession appears to' have been separately taken of specific portions by each party. (3) There was already a suit far partition instituted in which all the parties to the agreement are principal parties that in T. S. No. 30 of 1955. (4) Title Suit No. 53 of 1955 far specific performance was instituted after sum mans of partition suit i.e. T. S. No. 30 of 1955, was served and, in fact, plaint in T. S. No. 53 of 1955 was filed two days after w. s. in T. S. No. 30 of 1951 was filed. (5) Title Suit No. 53 of 1955 was Wed more than three years after the date of agreement, Ext. A, and only on those anniversary of the date for performance of the pleaded contract mentioned in it as three months thereof. Though it may have been within the prescribed limitation, it may be viewed as delayed unnecessarily and without any reason. 44. In this respect, while most of the authorities in judicial decisions we have mentioned above, are cases of agreement of sale or lease of immovable property, one decision of outstanding value is reported in Upendra Nath Banerjee v. Umesh Chandra Banerjee (supra) which also we have already noticed as being on facts remarkably similar though not exactly similar. That was a case in which the plaintiffs had instituted a suit against their own brother for partition of joint properties which induced a homestead where all the parties lived. Their shares were not in dispute, but the defendant resisted the suit substantially on the ground that the homestead had been previously partitioned and that several items of joint properties had been excluded from the scope of the suit. The controversy between the parties had been directed principally to the first ground. The defendant in support of his allegations of a previous partition relied upon a deed executed by the parties on October 25, 1893. The trial court held that deed to be inadmissible for non-registration but held tint there had been some sort of amicable petition though the transaction did not amount to a complete and regular partition. The defendant in support of his allegations of a previous partition relied upon a deed executed by the parties on October 25, 1893. The trial court held that deed to be inadmissible for non-registration but held tint there had been some sort of amicable petition though the transaction did not amount to a complete and regular partition. But in view of the fact the arrangement had continued for good many years and the defendant had spend considerable amounts for repairs of a portion of homestead in his occupation and had also purchased from the plaintiffs occupation of homestead in their occupation, in the preliminary decree for partition, the Court directed that the partition should be effected as to award to the parties blocks of homestead in their respective possessions. The plaintiffs appealed against that preliminary decree. The appeal was heard before a Division Bench (Mookerjee and Carnduff, JJ.). After discussing the question of admissibility of the unregistered deed, relevant part of which we have already quoted, it was said: The second branch of the contention of the respondent is to the effect that as the arrangement has been acted upon by the parties, it may be proved irrespective of the provisions of section 49 of the Registration Act and section 91 of the Evidence Act. His argument in substance is that the equitable doctrine of part performance is applicable to the present class of cases, and that as the plaintiffs in their contention prevail will be practically enabled to commit an act of fraud, no Court of Equity should assist them to effectuate such a purpose............... The cases to which reference has been made seem to recognise two principles, namely, first that although an instrument may be inoperative as a lease, because not registered in accordance with law, it may be admissible in evidence in proof of an oral agreement to lease, which may be made the foundation of a decree for specific performance, and secondly, that if possession has been taken under a verbal agreement to lease though formal documents have not been executed, the tenant in possession holds under the terms and subject to the conditions of the agreement is one of which specific performance might be enforced in the Court in which the suit has been brought against him and at the same time as the subsequent legal question fails to be determined. In our opinion, neither of these principles if of any assistance to the respondent even if it is assumed that they have any application to a case of the character now before us. If it is imagined that the partition mentioned in the deed of 1893 was preceded by an agreement to effect partition to the extent and in the manner indicated in the deed, it is clear that specific performance could not have been enforced in respect of such contract ...............................................................The real ground of equitable intervention is that there is an irrevocable act which has lifted the contract out of the sphere of pure contract so that the Court has to choose between undoing what has been done (which is not always possible. or if possible just) and completing what has been left undone accordingly, the res gestae must be such as could be done with no other view or design than to perform the agreement there must be some evidentiary which means that the act must speak for itself, so as to connect itself with the agreement and further the act must change the relative positions of the parties towards the subject-matter of the agreement. To put the matter in another way, if there is part performance by the party seeking relief and to the knowledge of the other party, proof will be admitted of the verbal contract in cases where an action for specific performance would lie; but it has been said that part performance is only an exception to the plea of the Statute of Frauds in an exception to the plea of the Statute of Frauds in or action for specific performance. When the reason for the rule is thus investigated, it becomes clear that the rule has no application to the case before us. As we have already explained, no suit for specific performance of the alleged agreement to effect a partial partition of the joint property could possibly have succeeded. Nor is it suggested that the parties cannot be restored to their former position and full justice done to them. It is wellsettled that the mere filet of payment of money is not necessarily an act of part performance. Nor is it suggested that the parties cannot be restored to their former position and full justice done to them. It is wellsettled that the mere filet of payment of money is not necessarily an act of part performance. In other words, an act done by a party in pursuance of the parol agreement in order to be a part performance of it must not only be one which could not be done with any other view or design than to perform it, but must also be such as could not be undone without causing the party unliquidated damage. Hence, if it is possible to restore the parties to precisely the same position as they occupied before they entered into the parol agreement, the doctrine of part performance will not ordinarily be allowed to be invoked.....................In fact, it is well-settled that if one joint owner has in good faith effected valuable improvements upon' the common property at his own expense, enquiry will take this fact into consideration upon a partition and in some way wilt make an allowance to him therefore in addition to his rateable share of the property...........................In other words, as stated by this Court in Dwijendra Nurain v. Purnendu Narain, although a covenant who has spent money in the improvement of the joint property may not be entitled to call upon his co-sharers to compensate him for the expenditure, yet he has a defensive equity which is enforceable in the event of a partition ; it is in recognition of such equitable right that to the co-owner who Ins made the improvement is assigned that portion of the property on which the improvements have been made, the division being made on the basis of the unimproved value. This method is adopted whenever the nature of the property and the improvements and situation of the latter are such as to render such distribution practicable, and it can be done without injury to the other co-tenants......................The equity of a co-tenant to have the part of the common property, which he has improved allotted to him on a partition, is not founded upon the theory that he made the improvements with the consent, expressed or implied, of his co-tenants; the principle rather is that if the right of one joint owner, to effect an improvement for which he will ultimately be entitled to claim allowance, were denied, beneficial user' of the joint property might in many instances become impracticable. 45. The principles so clearly discussed remain good law even after amendment has added the proviso to section 49. These observations have not been rendered obsolete by the amendment of law but instead have received legislative confirmation and, in our view, those are clearly applicable to the case before us in which we have held that there should be a preliminary decree for partition in which complete justice and balancing of equities between the parties can be made by proper directions in that preliminary decree for partition. On principles elaborately discussed in that judgment, long passages from which we have just quoted, we hold that in the circumstances of this case a suit for specific performance does not lie and even, if it lies, by judicial exercise of discretion expressly mentioned in section 22 of the Specific Relief Act, the trial court should have dismissed T. S. No 53 of 1955. 46. As the suit for specific performance would not lie no question of receiving the agreement, Ext. A, in evidence in a non-existent suit can arise. Mr. Pal's contention therefore fails. 47. In the result we allow both the appears. The decree passed in T. S. No. 53 of 1955 is set aside. 46. As the suit for specific performance would not lie no question of receiving the agreement, Ext. A, in evidence in a non-existent suit can arise. Mr. Pal's contention therefore fails. 47. In the result we allow both the appears. The decree passed in T. S. No. 53 of 1955 is set aside. The decree dismissing T. S. No. 30 of 1955 is also set aside and we direct the trial court to pass a 'Preliminary decree for partition in respect of five items of property mentioned in plaint as originally filed giving in that decree general directions that, in effecting partition of the joint properties by metes and bounds, present possession of the parties should be maintained as liar as possible and equities should be balanced between them by fixing valuation of each item of properties as in July, 1952 in their unimproved condition as they then were. It should also be made clear in the preliminary decree that the partition shall only be for the duration of the life estates that the plaintiffs and the defendant Nos. 1 and 2 have in the properties under the Will of Harihar and shall not in any way affect the rights of the absolute owners under that will in respect of any of the properties that fell to the share of Anadi under that Will. 48. Though the appellant in both the appeals has succeeded and the respondents in both the appeals have lost in the particular circumstances we have discussed above, we direct that in both the suits and both the appeals the parties will bear their own costs throughout. Bagchi, J.: I have the pleasure to peruse my Lord's judgment with which I fully agree. I feel, however, tempted to add a few words of my own. 50. Mr. Pal, the learned Counsel for the respondents in these two appeals, opposed the appellant's learned Counsel Mr. Banerjee's objection to the admissibility in evidence, raised for the first time in these two appeals, of the document Ext. A, the so-called deed of agreement, admitted in evidence in the trial court and in support of his contention relied on an observation of the Supreme Court running as- The documents were admitted in evidence by the trial court and no question of admissibility of those documents can be raised at a later state of the suit or in appeal (see sec. 36, Stamp Act). In the case of Kasinalh v. Narasinga (supra) the contention of Mr. Pal would not, however, stand legal scrutiny. 5L Mr. Banerjee's contention is that if the document (Ext. A) upon which the trial court rested his judgment in both the suits now under the appeals would have been properly interpreted and construed, the document could not have been admitted in evidence in view of the provisions of section 17(1), clause (1) read with section 49 of the Indian Registration Act. 52. He submitted that the plea of correct interpretation of Ext. A and its proper construction involved a question of law lying within the ambit of section 17(1)(b) read with section 49 of the Indian Registration Act. Exhibit A is the document upon which the learned trial Judge based his judgment in both the suits. In (16) Connecticut Fire Insurance Company v. Kavanagh, (1892) AC 473 (480) Lord Watson expressed himself in these terms: When a question of law is raised for the first time in a Court of last resort upon construction of a documents, or upon facts either admitted or proved beyond controversy it is not only competent but expedient in the interest of justice to entertain the plea. The principle was reaffirmed by Lord Tomlin in the case of (17) M. E. Moolla Sons Ltd. v. Banerjee, (1932) LR 59 IA 161. In Moolla's case. the appellant-Moolla's contention was that an agreement that required registration under Indian Registration had not been registered and that the courts below had no authority in law to receive the agreement in evidence for using it for any purpose. The question of admissibility in evidence of the agreement in violation of section 17(1)(b) read with section 49 of the Indian Registration Act was first raised by Moolla, the appellant, before the Board of Privy Council. The question before the Board was whether Moolla could be allowed to raise the plea for the first time before the Board of Privy Council. The Privy Council, however, disallowed Molla's plea and observed: Here the agreement has been admitted throughout. Indeed, it was first put in by the appellant. Further, the proceeding do not in any respect affect any immovable property. The Privy Council, however, disallowed Molla's plea and observed: Here the agreement has been admitted throughout. Indeed, it was first put in by the appellant. Further, the proceeding do not in any respect affect any immovable property. The immovable property affected by the agreement long since passed out of the picture and the only claim in these proceedings is a personal one for damages for breach of an admitted contract against an alleged undisclosed principle who denies he was a principal. In Moolla's case the claim rested upon the agreement for personal damages for breach of an admitted contract and the proceedings did not in any way affect any immovable property by the agreement. But in these two appeals the document Ex. A directly affects immovable property. So, the dictum of Lord Watson in Connecticut Fire Insurance Company v. Kavanagh already quoted in this judgment with respect is applicable in these two cases now under appeal and we respectfully apply the dictum in these two appeals which supports Mr. Banerjee's contention. In the Supreme Court case in Kashinath v. Narasinga upon which Mr. Pal relied, the question was whether improperly stamped or an unstamped document admitted in evidence without any challenge at the trial court could be challenged for the first time before the Supreme Court as inadmissible in evidence. Referring to the specific provisions in the Bar, as laid down in section 36 of the Stamp Act, their Lordships answered the question in the negative. In the case of (18) Muttukarappa Kaundan v. Ramo Pillai, (1866) 3 Mad HCR 158, a document which was merely evidence but not of the essence of a transaction, the statement of a party to a suit is admissible as original evidence as against him to prove the contents of a document which is not admissible in evidence under the Stamp Act. In that case, the document though not admissible in evidence under the Stamp Act was held admissible since it is merely the evidence of certain statement of the executants of the document but not the essence of the transaction. Before the Supreme Court the document as to the admissibility of which was questioned for the first time was not stamped. In that context, their Lordships held that the objection as to the admissibility of the document which was not stamped was barred by section 36 of the Stamp Act. Before the Supreme Court the document as to the admissibility of which was questioned for the first time was not stamped. In that context, their Lordships held that the objection as to the admissibility of the document which was not stamped was barred by section 36 of the Stamp Act. In the Madras case, the document which was unstamped and, as such, inadmissible in evidence was merely the evidence of certain statements made therein and not of the essence of the transaction. The statement of a party to a suit in such a document is admissible as original evidence as against him to prove the contents of such statement in the document. In that case the statement in the document was not the essence of the transaction. But, in these two appeals the question is not resting on insufficiency of stamp on Ex. A which as an agreement, as it were, was written on a paper bearing stamp of the value of Re. 1 (one) only. The document (Ex. A), as we have construed it, is a deed of partition by metes and bounds affecting immovable property with an agreement superadded that ill conformity with the terms of partition effected by metes and bounds of the joint immovable property by and under the document (Ex. A) followed by the taking of possession of the allotted partitioned parcels of land by the executants of the document taken on and from date of execution of the deed (Ex. A), the parties to the document (Ex. A) would each execute a deed of partition in future embodying all the terms as in the' document Ex. A within certain date. So, Mr. Banerjee raised the plea of inadmissibility of Ex. A in evidence not on the grounds of insufficiency of stamp on that but under section 17(1), clause (b) read with section 49 of the Indian Registration Act for any purpose. The learned Subordinate Judge proceeded on the view that Ex. A embodied only as if an agreement whereby each of the parties thereto agreed to execute a deed of partition of their joint immovable property which, however, had been partitioned by metes and bounds allotted to each of such parties who took separate possession of such allotted parcels allotted on partition by and under the deed, Ex. A, on executing Ex. A on and from the date of its execution. A, on executing Ex. A on and from the date of its execution. The principal terms of Ex. A are (i) allotment to each of the parties to the document a specific parcel of joint immovable property, (ii) upon partition by metes and bounds of their joint immovable property, (iii) and taking of separate possession of such allotted property by one party to the exclusion of the other in his own right in terms of the document. Ex. A, on and from the date of execution of the document (Ex. A) and (iv) partition as effected, allotments as made and possession thereof as taken on and from the date of execution of Ex. A would on no account be objected to or altered in future by any of the parties to the document Ex. A. The terms in Ex. A, subsidiary to the principal terms, are that within certain dates each of the parties to Ex. A would execute a deed of partition embodying all the principal terms of Ex. A, i.e. partition by metes and bounds, allotments of partitioned parcels to each of the parties to the document, possession by each of such parcels by each of such parties as taken and possessed in terms of Ex. A on and from the date of execution of Ex. A. The principal terms in the document Ex. A dearly fall within section 17(1), clause (b) affecting immovable property of the value above Rs. 100, but Ex. A was not registered under the Indian Registration Act. The principal terms in Ex. A are referable to partition by metes and bounds of the joint immovable property of the parties and taking of separate possession of partitioned parcel by one party to the exclusion of the other in his own right on and from the date of execution of the document (Ex. A). So the document (Ex. A), so far as the principal terms are concerned, is hit by section 17(1), clause (b) read with section 49 of the Indian Registration Act. The document (Ex. A), therefore, consists of two parts-principal terms and the subsidiary terms apparent from the very recitals in Ex. A. 53. As the principal terms embodied in Ex. A are hit by section 17(1)(b) read with section 49 of the Registration Act, the subsidiary terms in Ex. A that are indivisible from the principal terms must also fail. The document (Ex. A), therefore, consists of two parts-principal terms and the subsidiary terms apparent from the very recitals in Ex. A. 53. As the principal terms embodied in Ex. A are hit by section 17(1)(b) read with section 49 of the Registration Act, the subsidiary terms in Ex. A that are indivisible from the principal terms must also fail. Essence of the transaction under Ex. A is partition by metes and bounds, allotment of partitioned parcels to each of the executants of the document and possession taken by each party in his own right of the relevant allotted parcel of immovable property to the execution of the other on and from the date of execution of Ex. A. So in this case, the essence of the transaction as appearing in the principal terms of Ex. A falls within the mischief of section 17(1)(b) read with section 49 of the Indian Registration Act. Now, the question would arise if the subsidiary terms in the document Ex. A., i.e. execution of the deeds of partition embodying• the principal terms of the transaction in Ex. A would stand or fall. The transaction evidence by Ex. A consisting of the principal and subsidiary terms is a single and indivisible transaction. Exhibit A does not evidence two transactions each separable and divisible from the other. It is clear from all the terms in Ex. A that the subsidiary terms are wholly dependent on the principal terms. As the principal terms in Ex. A are not acceptable in law as evidence partition by metes and bounds of the joint immovable property of the partities to the document, the subsidiary terms relating to the execution in future of a deed of partition by each of the parties to Ex. A embodying the principal terms in the partition deeds must have to be rejected. In (19) Sambayya v. Gangayya, ILR (1890) 13 Mad 308 (309) before the Division Bench of the Madras High Court a question arose near similar to the one at present before us. There the plaintiff leased a house to the defendant for three years by an unregistered instrument which contained a covenant by the lessee that he would purchase the house at certain price on an event which took place. The plaintiff sued for specific performance of this covenant. The Division Bench dismissed the suit. There the plaintiff leased a house to the defendant for three years by an unregistered instrument which contained a covenant by the lessee that he would purchase the house at certain price on an event which took place. The plaintiff sued for specific performance of this covenant. The Division Bench dismissed the suit. Muttusaur Ayyar, J. observed: The transaction evidenced by document A or the principal contract which forms the foundation of the respondent's claim is a lease for three years and the convenant with the respondent sued to enforce was part of and depended on the principal contract Document Ex. A was compulsorily registerable under section 17, clause (d) and under section 49 it was ineffectual for the purpose of creating a lease of the house for three years and inadmissible in evidence affecting the house. As the principal contract failed, the convenant depending on it likewise failed. In these two appeals, as the principal terms of Ex. A cannot effect a valid partition by metes and bounds of the joint immovable property of the parties, the subsidiary terms which are dependent on the principal terms in Ex. A must, therefore, fail. We respectfully follow and apply the principle laid down in the Madras decision in these two appeals in regard to the document Ex. A. In the case of Upendra Nath Banerjee v. Umesh Chandra one unregistered deed of partition of immovable property above the value of Rs, 100 was held hit by section 17, clause (n) read with section 49 of the Registration Act and, as such, was not to affect any immovable property comprised therein or as evidence of any transaction affecting such property. It was further held that under section 91 of the Evidence Act no other evidence was admissible in proof of the terms of such disposition. In that case, it was argued that although the deed was hit by section 17, clause (b) and section 49 of the Indian Registration Act, it should be admitted in evidence in proof of the agreement for partition which must have preceded the actual partition itself, Mr. Pal, the learned Counsel for the respondent made a faint attempt at construing the principal terms Ex. A as if those amounted to an agreement to have a partition. Such argument could not, however, be pressed further by Mr. Pal, the learned Counsel for the respondent made a faint attempt at construing the principal terms Ex. A as if those amounted to an agreement to have a partition. Such argument could not, however, be pressed further by Mr. Pal since the case of his clients in both the suits was that there had already been a partition by metes and bounds by and under Ex. A evidence by its principal terms and the learned Subordinate Judge rested his judgment upon a clear finding to that effect. The respondents interposed Ex. A in the appellant's Suit No. 30 of 1955 and Appeal No. 214 of 1957 to negative his claim to have the joint immovable property partitioned by metes and bounds and the trial court accepted the document Ex. A fully upholding such contention of the respondents. The respondents used Ex. A in Suit No. 53 of (1955) (Appeal No. 215/57 ) to get a decree for specific performance of the contract as embodied in the subsidiary terms in Ex. A against the appellant and succeeded in getting the decree. The respondents did not use Ex. A against the appellant and succeeded in getting the decree. The respondents did not use Ex. A for any collateral purpose in Upendra's case their Lordships observed: But he wishes to exclude from the scope of the present litigation the property which in the face of the deed in question was partitioned thereby, It is manifest that the deed is not admissible to establish the fact that the property was so partitioned. We must hold, therefore that section 49 of the Registration Act excludes the document with the result that section 91 of the Evidence Act excludes evidence in support of the transaction because the written instrument is not collateral but is the very essence of the transactions. 54. We respectfully accept and follow those observations as these are applicable in all fours with the facts appearing in the face of Ex. A in these two appeals. The Madras decision and the Calcutta decision, already discussed, would show that the use sought to be made in those cases was not collateral. In these two appeals, as we find, the respondents used Ex. A not for any collateral purpose but as the basic document upon which they could succeed in both the suits. A in these two appeals. The Madras decision and the Calcutta decision, already discussed, would show that the use sought to be made in those cases was not collateral. In these two appeals, as we find, the respondents used Ex. A not for any collateral purpose but as the basic document upon which they could succeed in both the suits. Exhibit A could not he used in either of the suits in evidence and it was not and could not be used as evidence and of any collateral transaction. The parties have been passing the separated and partitioned parcels of immovable property on and from the date of execution of Ex. A and the respondents claim to have made improvements at considerable cost of the lands etc allotted to and possessed by them upon such partition. Therefore, Mr. Pal contended that Ex. A could legally be admitted in evidence to explain the nature and character of possession. In (20) Varatha Pillai v. Jeevarathnammal, (1918) LR 46 IA 285 the question was whether certain gift of immovable property mentioned in the petitions made before the Revenue Authorities that an order passed on such petition took action accepting that the gift of immovable property, as mentioned in the petitions had in fact been effected, it was held by the Board of Privy Council that those petitions having not been made in terms of section 123 of the Transfer of Property Act could not be accepted as evidence of gift independently of the terms of the gift as embodied in the petitions was inadmissible under section 91 of the Evidence Act. But Viscound Cave observes : they (petitions) may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by Duraisani. The case of K. Mahammad Ghouse Sahib v. Jamila Bi (supra) to be in all fours with the case in these two appeals that came for decision before a Division Bench of the Madras High Court and was wholly relied upon by Mr. Banerjee, for the appellant, in support of his argument. In that case a preliminary decree for partition was passed. After preliminary decree the parties divided the property in the presence of panchas and took possession of the property that fell in their respective shares. Banerjee, for the appellant, in support of his argument. In that case a preliminary decree for partition was passed. After preliminary decree the parties divided the property in the presence of panchas and took possession of the property that fell in their respective shares. The private award regarding partition when filed before the trial Court was rejected as it was not registered, being hit by sections 17(1)(b) and 49, Indian Registration Act. Ignoring the private award, the Subordinate Judge appointed a Partition Commissioner to divide the property. The final decree had not been passed in the suit. In that case the private award contained two terms, the first term related to the partition as effected and the second term related to the agreement to execute a comprehensive deed of partition in terms of the partition as effected by the award. The second term was said to be the one that required no registration and could be used for collateral purpose-such purpose being to enforce the agreement to have a comprehensive deed of partition executed and registered. What is collateral transaction was explained in K. Mahammad Ghosh Sahib's case, As in Upendra Banerjee's case (supra) so in the Madras Case the document was sought to be used not for any collateral purpose but for the main purpose, is that the property partitioned as evidenced by the document could not be repartitioned. In both the cases the document in question was held inadmissible even for collateral purpose. In these two appeals we also hold that Ex. A cannot be used (f) evidence for the collateral purpose of enforcing the agreement to execute and register a comprehensive deed of partition. Now, the Question is whether to explain the nature and character of possession of the parties in the parcelled out property as is now being possessed by each of them upon partition by metes and bounds, Ex. A can be looked into in view of the princip1e laid down in Varrha Pillai's case (supra) by the Privy Council. The suit for specific performance of contract to execute and register a comprehensive deed of partition does not lie on Ex. A. The document Ex. A, cannot be used even for the collateral purpose of showing that there was the agreement to have a formal deed of partition executed and registered for the reason already discussed. 55. The suit for specific performance of contract to execute and register a comprehensive deed of partition does not lie on Ex. A. The document Ex. A, cannot be used even for the collateral purpose of showing that there was the agreement to have a formal deed of partition executed and registered for the reason already discussed. 55. The suit for partition shall, therefore, lie and should be decreed in preliminary form. In Upendra Banerjee's case (supra) which is near similar to the case under these two appeals, a decree in preliminary form for partition was ordered by this Court subject to such equitable considerations as may properly be applied to adjust the rights of the parties. It is in the evidence that, following the execution of Ext. A, the plaintiff and the defendants in Suit 30 and the plaintiffs and the defendant in Suit 53, i.e. the appellant and the respondents in these two appeals came into possession of the respective allotments and have been in possession of such allotments, each to the exclusion of the other, seemingly in their own right therein following the partition. The respondents the appellants in both the appeals then came into possession by and under Ext. A, on and from the date of execution of Ext. A and have been continuing in possession of such allotments. The appellant has got in his allotment lands burdened with thika tenants while the respondents have got vacant lands upon which they claim to have made extensive improvements. So, Mr. Pal, the learned Counsel, wanted to impress upon us that in order to appreciate how the parties came into possession of the respective allotments, Ext. A, should be looked into to explain the nature and character of possession of the respective allotees. That the allotees began to possess the allotted parcels on and from the date of execution of Ex. A is sufficiently borne out by evidence on record as adduced by the parties. A, should be looked into to explain the nature and character of possession of the respective allotees. That the allotees began to possess the allotted parcels on and from the date of execution of Ex. A is sufficiently borne out by evidence on record as adduced by the parties. In spite of Ext, A, all the allotted portions now in the Partition Suit by the Court below are to be regarded as joint property of the appellants and the respondents, and the fact of possession of each allotted portion and improvements made therein are to be considered as having been made on an amicable arrangements and shall be taken into consideration following the directions given in the decision of this Court in Upendra's case (supra). But reference to Ext. A to explain the nature and character of possession in the allotted portions in the appellant and the respondents would not go to the extent to which the decision of the Privy Council in Varatha Pillai's case (supra) lays down. In that case, though the petitions and order did not amount to a gift of immovable property, but following the petitions and the order Duraisani received rent of the so-called gifted property possessing the same as if she was the donee. In that context the petitions and order held, though not admissible in evidence for non-registration and not in compliance with section 123 of the Transfer of Property Act, could be looked into to explain the nature and character of possession in the land affected by those documents in Duraisani. Duraisani claimed possession in the property in dispute for more than 12 years in her own right adversely against the so-called donor. Lord Cave observed: In other words, although the petitions and order do not amount to gift of the land, they lead to the inference that the subsequent receipt of the rents by Duraisani was a receipt in the character of donee and owner of the land therefore in her own right and not as trustee or Manager for her mother and aunt. But in these two appeals. Ex. A cannot be used to explain the nature and character of possession of the allottees of the parcelled out property under Ex. A in the manner and to the extent as the Privy Council did in Varatha Pillai's case (supra). If Ext. But in these two appeals. Ex. A cannot be used to explain the nature and character of possession of the allottees of the parcelled out property under Ex. A in the manner and to the extent as the Privy Council did in Varatha Pillai's case (supra). If Ext. A, is looked into to explain the nature and character of possession of the allottees in the allotted lands, it would amount to this that on partition by metes and bounds the allottees took possession of the allotted portions and the respondents made improvements in their allotted portions on the basis of partition. In that case, Ext. A, would achieve what the law totally forbids. The decision in Varatha Pillai's case was clearly .explained by the Full Bench of the Madras High Court in the case of (21) N. Rammayya & Drs. v. Nalam Achamma, AIR 1944 Mad. 550 . as well as in Mahammad Ghouse Sahib's case (supra). We fully agree with and accept the Madras decisions and follow the same. We, therefore, hold that the said two decisions correctly explain the scope and extent of the Privy Council decision in Varatha Pillai's case (supra). So, the only alternative now is to follow, in the circumstances of the case under these two appeals, some such of the directions as are applicable to the proved facts of the case under these two appeals as were given in Upendra's case (supra). The appellant has got and has been possessing land burdened with thika tenants who are not ordinarily ejectable under the law. The respondents have got vacant lands upon which they claim to have made improvements. The allotted portions; in respective possession of the parties on an amicable arrangement made by them must be considered as a joint property. The improvements, if any made upon the lands m possession of the respondents at their expenses, are to be taken into consideration and some allowance is to be made in their favour in addition to their rateable share in the joint property on partition in the final decree proceedings. The respondents who claim to have spent money in the improvement of joint properly now in their respective possession would not, however be entitled to can upon the appellant to compensate them for the expenditure, yet they have a defensive equity which is enforceable in the final decree proceedings in partition suit. The respondents who claim to have spent money in the improvement of joint properly now in their respective possession would not, however be entitled to can upon the appellant to compensate them for the expenditure, yet they have a defensive equity which is enforceable in the final decree proceedings in partition suit. It is in recognition of such an equitable right that to the respondents could be assigned the portions in their respective possession, the division of the allotments being made on the basis of unimproved value of such allotments. But, there is one difficulty in this case. The appellant has been in possession of that portion of the joint property that is burdened with thika tenants while the respondents have been in possession of vacant lands upon which they claim to have made improvements. So, when valuation of the three allotments in the final decree proceedings is to be made, taking three allotments as they stood on and before the date of execution of Ext. A, i. e. in unimproved condition, allowances are to be made in favour either of the appellant or the respondents to such an extent while fixing, if and when the owelty money is found to be payable by one to the other that on equitable considerations the rights of the parties may be completely adjusted. It may so happen that the respondents while getting the improved portion s allotted to them valued at unimproved condition may have to pay such sum as owelty money as would equate with disadvantages that may enter in the allotment to be made to the appellant who has been possessing his portion burdened with thika tenants. So, the appellant's portion burdened with thika tenants is to be valued while the respondents' portions in unimproved condition are to be valued. Then to adjust the equities amongst the parties completely, the present possession of the land in the appellant and the respondents would have to be maintained subject however to the liability, if any, of the parties to the payment of owelty money by one to the other as would be found payable in the proceedings of the final decree for partition. It should be remembered that for improvements in the respondents' portions no value for the improvement should be assessed but for the disadvantages of the burden of thika tenants on the appellants' portion the valuation should be made in such a way that for disadvantage of near permanency of the thika tenants' right in the land in possession of the appellants, he is not put to any financial loss for his getting the said land in his possession allotted to him in the final decree proceedings.