John Wallis, C.J.
1. This is an appeal from a decree of the District Judge of Tinnevelly in a partition Suit brought by the 1st plaintiff now deceased against the defendant the son of his deceased brother. When the case came on after repeated adjournments the defendant's vakil stated that he had no instructions and, after the plaintiff's evidence had been recorded and his pleader heard, the case was closed and judgment reserved. The defendant afterwards applied to the Court to hear arguments on his side before disposing of the case and to pass such other orders as were just and proper in the circumstances of the case. The District Judge rejected his application and we are not prepared to interfere with his order. The defendant had been grossly remiss. It is stated in the plaintiff's counter affidavit and not denied that the defendant's vakil had sent him two registered notices to which the defendants paid no attention. All that he did was on the day before the hearing to send a telegram to an agent at Palamcottah five miles from the Court house asking one Sankaranarayana, who, he says, was his agent to remit Rs. 150 to the Vakil soon. As regards the allegation in his affidavit that he was taken ill at Kumbakonam there appears, as the District Judge has observed, to be no valid reason why he should not have wired directly to his Vakil. The defendant was inexcusably remiss, and it would operate as an encouragement to similar remiss-ness in others if we were to interfere to save him from the consequences.
2. The main question argued before us in the appeal was whether two partition deeds Exhibits Ay and Az were inadmissible in evidence for want of registration, as instruments ' which purport or operate to create, declare, assign, limit, or extinguish any right, title or interest to, or in immoveable property,' within the meaning of Section 17(1)(b) of the Indian Registration Act 1908.
3. It has been held consistently in this Court that a partition deed which effects a division in status only and not by metes and bounds comes witttin these words where the joint family property includes immoveables. It has the effect in Lord Westbury's words in Appuvier's case 11 M.I.A. 79, 92 of severing the joint tenancy in such immoveables and converting it into a tenancy in common, and thus in the very language of section operates to extinguish one set of right in the immoveable properties and to create another set in their place.
4. In the present case Exhibit Ay, the earlier deed which provides for an immediate division, requires to be registered unless it can be brought within Clause (5) of Sub-section (2) of the same section which excepts any document not itself creating, etc., any right, title or interest in immoveable property but merely creating a right to obtain another document which will when executed create, etc., any such right, title or interest.
5. Now Exhibit Ay does provide that ' a partition deed in the terms mentioned herein shall be executed and registered in the registration offices of this place (Trivandram) as well as Tinnevelly as soon as possible ' and so far comes within the exception but, to come within the exception, it must not itself create, declare, assign, limit, or extinguish any right, title or interest in immoveable property. We have only to refer to the terms of Exhibit Ay to see that it effects a separation or division in status as from the date of execution. 'From this day forward each party shall enjoy the properties in the schedule allotted to his share'. ' Further it provides that till the execution of the registered deed this itself shall be in force.' In my opinion Exhibit Ay is clearly inadmissible as coming within Clause (b) of Sub-section (1) and not within the exception in Sub-section (2) Clause (5). Exh. Ay allotted Properties valued at Rs. 72,500, to each brother and additional preperties valued at Rs. 48,200, to the elder brother by way of Jyeshtabhagam or elder brother's share. Exhibit Az which was executed about a month later and registered in Travancore apparently in substitution for Exhibit Ay allotted the same properties to the two brothers but on a different basis. It begins with an enumeration of the joint family properties which included only some of the scheduled properties and recited (hat all the remaining properties in the schedules Were -the self-acquisition of the elder brother Krishna Aiyar and in his possession and sole control. It goes on ' having regard to the fact that our father had no other sons besides us, and as we have been holding and managing our ancestral properties without division and as belonging to our undivided family and as it has been found inconvenient so to continue in future, and as we have decided to divide and live separately (literally after dividing to live separately) all the properties hereinbefore mentioned have been included in Schedules A and B to this deed, and taking into consideration brotherly affection as Subramania Aiyar is the only brother of Krishna Aiyar and as we have been holding our ancestral properties without division and as belonging to an undivided family, out of all the properties heretofore mentioned those contained in Schedule B have been given and made over to the second party to this deed, (Subramania Aiyar) as from the first of this month.' Exhibit Az then goes on to provide as regards the lands in Tinnevelly ' which consist of properties belonging to us jointly and to Krishna Aiyar exclusively' a partition deed in respect of the shares allotted to each should be immediately registered in the respective sub registry offices of British territory in accordance with the terms of the yadast executed by us on the 24th Dhanu last (Ex. Ay) and in accordance with the shares specified in the schedule to this partition deed.
6. Exhibit Az in my opinion was not executed in pursuance of but in substitution for, Exhibit Ay, which dealt with all the scheduled properties as ancestral whereas according to the recitals in Ex. Az the bulk of them were the self-acquisition of the elder brother and in his possession and sole control at the date of execution. Equally with Exhibit Ay it 'purports within the meaning of Section 17(1)(b) to, effect a division in status affecting all the ancestral properties both in Travancore and Tinnevelly and equally with Exhibit Az it creates and extinguishes rights in such ancestral immovable properties whether it be registered or,not and is consequently inadmissible even as regards such properties. As regards the self-acquisition of the elder brother in British India which it purports to give to the younger brother it is also clearly inadmissible under Section 17(a) as well as inoperative, under Section 123 of the Transfer Property Act.
7. Exhibits Ay and Az were proved by Sankaranarayana Iyer, the plaintiff's maternal uncle. The plaintiff does not appear to have relied on the evidence taken on commission and the defendant was not represented. The judgment really proceeded on Exhibits Ay and Az which I have held to be inadmissible as evidence of partition. The defendant admits in his written statement that there was a nucleus of ancestral property but pleads, that except the properties set out in schedules A and B to his written statement all the plaint properties were acquired by his father Krishna Iyer the elder brother with the aid of funds derived from his mother. He alleges that his mother had enormous sums of money of her own which she gave to her elder son Krishna Aiyar and that it was with this money that Krishna Aiyar acquired the plaint properties which are not admitted to be ancestral. This has not been proved and the plaintproperties must therefore be held to be ancestral. I concur in the order proposed by my learned brother.
8. The first contention of the defendant appellant in this appeal is that the lower Court was wrong in not giving him an opportunity to adduce his evidence and to argue his case. I agree with the learned Chief Justice that no sufficient ground has been made out to justify us in interfering with the discretion of the lower Court in this matter. The defendant's failure to instruct his Vakil in time though the case had been posted for hearing and adjourned more than once and though he had received two registered letters from his vakil warning him, was clearly a piece of negligence on his part. In leaving it to the last moment to instruct his vakil he took the risk of being unable to do so in time and he must bear the consequences of his failure. Even at the last moment he failed to telegraph to his Vakil and it shows his remissness in the matter. In his petition I.A. No. 655 of 1918 to the Lower Court his main prayer was only that 'the Court should be pleased to hear the arguments on his side before disposing of the suit.' His arguments have now been fully heard by us and he has no reason to complain about it. We must therefore overrule this contention and proceed to consider the appeal on the record as it stands.
9. The next contention urged by him is that Exs. Ay and Az are inadmissible in evidence because of Section 49 of the Registration Act. As Ex. Ay was not registered at all and 4 Ex. Az was registered only in Travancore, he urges that they could not be used as evidence of any transaction affecting imrnoveable property in British India as has been done by the Lower Court. It cannot be denied that treated as deeds of partition of immoveable property in British India they will fall within Section 17 1(b) of the Registration Act and require to be registered. But the learned Vakil for the respondent contends that they fall within Clause 5, Sub-section 2(old Clause h) of that section and therefore Clause 1(b) does not apply to them at all. To decide this question we must turn to the language of the documents. Taking Ex. Ay first, it calls itself a partition and says ' The property mentioned in Schedule 1 is allotted to Krishnier's share and that in Schedule 2 is allotted to Subramania Aiyar's share. From this day forward each party shall separately enjoy the properties in the schedule allotted to his share.' Then after providing for certain income and for certain arrears of rents to be separately collected and enjoyed goes on to say ' a partition deed in the terms mentioned herein should be executed and registered in the registration offices of this place (Travancore) and Tinnevelly ; till then this itself should be in force.' It then says each party should enjoy the moveables in 'his possession and provides that each shall have no concern with the debts of the other. The two schedules give the list of immoveable properties allotted to the share of each brother and they include lands in British India. From its language it seems clear that the parties intended to treat it in itself as the partition deed, at any rate till a fresh deed of partition was executed and registered in further assurance thereof. The document Bays in express terms that it was to continue in force till then. I cannot accede to the arguments that that clause really means that it was to continue in force only as an agreement to divide hereafter for it contradicts the language used in the first part of the deed. It seems to me that it means that it was to remain in force as evidence of a completed partition and that it was intended to take effect as such on the day it was executed. I therefore agree with the learned Chief Justice that it cannot be brought within the scope of Clause 5 as it cannot be said to have ' merely created a right to obtain another document, etc.' It did more than that, as it purported by its express language to extinguish the rights of each brother in the properties in the schedule allotted to the other brothers and created fuller rights in himself in those allotted to him. I have not considered any of the authorities cited on Clause 5 as in my opinion the language of the document before us leaves no scope for any argument on the point.
10. Ex. Az stands on much the same footing. Though it has been registered in Travancore no attempt was made to get it registered in Tinnevelly. There are two schedules attached to the document which include the properties in British territory as well. As regards plaintiff's father the document says ' out of these (i.e., the properties treated as joint family properties divisible between the two brothers) properties according to Schedule B. have been relinquished in favour of executant No. 2 from the 1st of this month. Transfers of assessment are to be made in respect of properties set apart for each share, pattahs obtained, assessment paid and properties are to be enjoyed for ever in hereditary succession with all kinds of liberties and rights.' It also provides for the separate collection and enjoyment of rents of the properties allotted to each brother and there is further an express statement that executant No. 1, shall have no right or liability over the properties in Schedule B. The above language applies equally to the properties in British territory mentioned in the schedules, with the properties in Travancore and if registered in British India it would have been a valid partition deed with reference to them as well. The language of the document thus makes it fall within Clause (b) of Section 17 and though there is a reference in it that a partition deed for the Tinnevelly properties should be registered in British India it cannot be treated as falling within C1.5 any more than Ex. Ay could be.
11. I therefore agree with the learned Chief Justice that both Exs. Ay and Az require registration so far as they refer to immoveable properties in British territory. The penalty attached by Section 49 of the Registration Act to the non-registration of a document which requires registration is not only that it shall not affect any immoveable property comprised in it but also that it shall not be received in evidence ' of any transaction affecting such property.' No doubt the prohibition against admissibility in evidence is not an absolute one but only so far as the documents are used as evidence of such a transaction as above described. In the present suit the plaintiff after setting out the documents in the plaint prayed for a decree on their strength for a declaration that the properties mentioned in plaint Schedule 1 to 6 fell to plaintiff's share and that they belonged to him absolutely and asked for the delivery of possession of those in Schedule 1, 4 and 6 which are the immoveable properties included in Schedule 1 of Ex. Ay and Schedule B of Ex. Ax, with past mesne profits calculated from the date when the parties were stated to be divided in those deeds. These prayers show clearly that plaintiff was relying on these documents as evidence of a completed partition. He no doubt asks for a registered partition deed also in his prayer in the plaint but it is not with reference to these properties alone that he does so but with reference to others also which are asked to be divided by the Court for the first time and delivered possession of to him. The suit is not in my opinion framed as one for specific performance of an agreement. In fact in his plaint the plaintiff has repudiated the alleged agreement in part, he cannot seek specific performance of a part alone. It is thus clear that the documents were relied on by the plaintiff and were admitted by the Lower Court as evidence of a transaction affecting the immoveable properties included in them. This is against the provision of Section 49 of the Registration Act and we must exclude them from consideration as evidence of a prior partition. Apart from these documents there is no legal evidence of any partition between the brothers Krishna Aiyar and Subramania Aiyar. The suit must therefore be dealt with as one for a general partition between two co-parceners; it is in reality a suit for such a partition with an allegation that some of the properties included in the plaint were already allotted to the plaintiff's share. As he has failed to prove that allegation, must be allowed to fall back on his general right to a share in the joint family properties as a co-parcener. In dividing the joint family property in British territory the Court will of course take into consideration the joint family properties in Travancore which were divided and allotted by Ex. Az to each brother for adjusting the plaintiff's share in the properties in Tinnevelly. Ex. Az is admissible in evidence with reference to the Travancore properties as our Registration Act does not apply to that country and it can be relied on to show what properties in that state were allotted to each brother.
12. The old practice of giving the eldest brother and Manager of a joint Hindu family an extra share as Jeshtabhagom on partition has now become quite obsolete and cannot be legally enforced, equality of shares between brothers being now the rule. That being so 2nd plaintiff is entitled to an equal share with the defendant in all the joint family properties wherever situate.
13. The next question is what are those joint family properties which are liable to be divided. Plaintiff claimed all the properties belonging to the brothers Subramania Iyer and Krishna Iyer to be joint family properties but defendant asserted that only the properties in Schedules A and B of his written statement were so joint and that the rest were his father Krishna Iyer's self-acquisitions as properties purchased from moneys given to him absolutely by his mother. But having admitted the possession by his father of a nucleus of ancestral property the onus was on the defendant to prove that any of the family properties were the father's self-acquisitions. He has adduced no evidence himself on this point but Mr. Rama-chandra Iyer for him has relied on the 1st plaintiff's admission in Ex. Az before us, that some of the properties are Krishna Aiyar's self-acquisitions. That document is, no doubt, admissible in evidence to prove the admission and there is no doubt, such an admission in it. But there is an equally clear admission to the contrary by defendant's father Krishna Aiyar in Ex. Ay executed a short time before Exhibit Az that all the properties were divisible between the brothers. I do not think therefore that any value can be attached to either of these admissions as evidence. The result then is that we must hold that none of the properties belonging 1o the brothers is proved to be a self-acquisition and they mnst therefore all be treated as ancestral properties, and included in the partition.
14. The findings on issues 8, 9 and 10 were not challenged before us and must be confirmed.
15. In the result the decree of the Lower Court must be set aside and the case remanded to that Court to ascertain what properties in British territory should be allotted to Ihe plaintiff to give him his half share in the whole of the joint family properties and in the light of the observations above made to pass a fresh preliminary decree according to law. All costs including the costs of this appeal should be provided for in that decree.