John Wallis, C.J.
1. This suit was brought by the minor plaintiff to question an alleged partition under Exhibit III between himself and his paternal uncle Subba Naick in the year 1907. The District Judge dismissed the suit and on appeal his decree was affirmed under Section 98(2) of the Code of Civil Procedure in accordance with the judgment of Sankaran Nair, J. and Oldfield, J. differing and being of opinion that at any rate as regards immovable property Exhibit III was inadmissible in evidence for want of registration under Section 49 of the Indian Registration Act.
2. The plaintiff appealed under the Letters Patent and after carefully considering the case we agree with Oldfield, J. that Ex. III in the language of Section 17(1) of the Act operates to create a right, title or interest, of the value of one hundred rupees or upwards to or in immovable property. The material portion of the document is as follows: - 'As we have, in the presence of the undermentioned panchayatdars divided, into equal moieties, the cash, movables and immovables, court decrees, etc.; of which we are now possessed, valued at Rs. 80,000 our connection shall hereafter be only by relationship, but we shall have no monetary connection in respect of these properties.' We think this has the effect of causing the immovable properties, theretofore held by the co-parceners as joint, tenants thenceforward, to be held by them as tenants-in-common. Under Section 49 therefore, Ex. III cannot affect such immovable property or be received as evidence of any transaction affecting it.
3. The further question then arises whether Ex. III is admissible to prove a partition of movables only. It has been held as regards the statute of frauds that the statute operates to prevent an action on a contract though the part ofthe contract may not be within it. Leake on Contract (3rd Edn.) 252, and Parsons (9th Edn.) Vol. II page 674 citing Johnson v. Johnson 3 Bos. 162 and Mayfield v. Wadsley (1824) 3 B.& C. 357. See also Green v. Saddington (1857) 7 E & B. 504. The principle laid down in this case would appear to be that when there is an entire contract and part of it cannot be enforced, the whole goes, whereas, it is otherwise when an instrument contains two or more distinct contracts in which case they are severable. In Thandavan v. Valliamma I.L.R. (1892) M. 336 : 2 M.L.J. 130, it was held in a case somewhat similar that the contract as regards the partition of immovables might be severed from that as regards movables, but in that case the contract contained separate provisions as to each. In the present case on the whole I have come to the conclusion that there is not sufficient justification for treating Ex. Ill as consisting of two or more separate contracts. As pointed out by Parsons Vol. II page 673 the question ultimately turns on the intention of the parties and I am not satisfied that there was any intention that the movables should be partitioned apart from the immovables. For these reasons I would allow the appeal and give Judgment for the plaintiff with costs throughout, set aside the decree of the District Judge and remand the case for disposal as regards prayers (d) and (e) of the plaint.
4. I agree. Mr. S. Srinivasa Aiyangar for the Respondent further contended that the unequivocal declaration by Subba Naicken in, the unregistered deed Ex. Ill effected a division of status between him and the minor plaintiff. But after a consideration of all the circumstances of this case, I think that the right view to take is that the deceased Subba Naik did not intend such a division in status to take place without the deed itself simultaneously taking effect as a valid division deed, in other words, he never contemplated a division of status unless and until the deed itself is legally capable of effecting such a division. I therefore am unable to uphold that contention of the Respondent's learned Vakil.
Seshagiri Aiyar, J.
5. I agree and have nothing to add.