1. The facts of the second appeal may be stated first. Defendant 1 Ahobilachariar, defendant 2 Vedavyasachari, and the plaintiff's husband Padmanabhachariar were brothers. They had certain ancestral properties. Their maternal grandfather Magarappachariar executed a will dated 27th December 1878, dividing his property into two parts and giving one share to his elder daughter Thulasi Ammal and her sons, i. e. the above said Ahobilachariar and brothers and the other share to his younger daughter, and her sons. We are now concerned with the first share. Plaintiffs case is that the two defendants and her husband took that share in 1910. They divided the whole property consisting of the ancestral property and the property derived from their maternal grandfather, and in such division the suit items fell to the share of Padmanabhachariar who enjoyed from 1910 to 26th October 1918, when he died, and that they were trespassed upon by the defendants. She, therefore, sues to recover their possession. The defendants admit that there was an attempt at partition, but deny that there was a completed partition. Thay say that they refused to give a share in the maternal grandfather's property and this was why the partition fell through and that there was no division of the property. Two issues were framed:
(1) Whether the plaintiff's husband and defendants 1 and 2 became divided as alleged by the plaintiff.
(2) Whether the plaint properties are the ancestral properties of the plaintiff and defendants 1 and 2, and did the plaintiff's husband get the A schedule properties for his share.
2. Both the Courts below gave a decree to the plaintiff and the defendants have filed this second appeal.
3. The learned vakil for the appellants, Mr. Subramania Aiyar, argued that there is a change in the plaintiff's case. He contended that the allegation in the plaint was
the properties specified in schedules A, B and C were to be divided by the late Padmanabhachariar and defendants 11 and 2 through their maternal grandfather;
that this allegation being obviously erroneous the suit ought to be dismissed; that Padmanabhachariar not having been born in 1879, when the maternal grandfather died, he got no share under the will with reference to the rule of Hindu Law laid down in the Tagore case as to unborn demises, that Padmanabhachariar, therefore, got nothing from his maternal grandfather's property by reason of its being thrown into the common stock by defendants 1 and 2; that this was really the case considered by the Courts below and it ought not to have been allowed. A perusal of the District Munsif's judgment and the evidence adduced in the case shows that the parties went to trial on the point, whether the properties now in suit were treated as part of the family properties and were included in the partition and allotted to the plaintiff's husband's share in 1910. The second issue was wide enough to cover it and it is obvious that the parties understood it in that sense. The Subordinate Judge observes in para. 8
In spite of the defects in the pleadings the parties appear to have gone to trial after correctly understanding the situation.
4. I agree with this observation of the Subordinate Judge, and I see no reason to allow this purely technical plea on the part of the appellants after a very elaborate trial of the case and consideration of it by the Courts below.
5. The maternal grandfather died in 1879. Defendants 1 and 2 were then minors. Their father must have taken charge of his father-in-law's properties and managed them. His wife, a daughter of the testator, was entitled to a share under the will on a strict construction of the will. He died in 1899, and it was said that his wife died a few years before his death. Defendant 1 attained majority in 1888. Whether the father managed the father-in-law's properties between 1879-81 on behalf of his sons only or on behalf of his wife and sons we cannot say; and whether after 1881 defendant 1, who must have participated in the management, and his father, managed it on behalf of the brothers only or on behalf of their mother also, there is nothing to show. Padmanabhachariar was born in 1891. Defendant 2 must have attained majority at about the same time. Both the lower Courts find with reference to the admissions made in the depositions of defendants 1 and 2 that at the time of the partition in 1910 the attitude of defendants 1 and 2 was to regard the maternal grandfather's properties also as joint family properties. The evidence is that they made no distinction between the income of the ancestral properties and the income of the maternal grandfather's properties. Mr. Subramania, Aiyar contends that this was not in evidence from which it can be inferred that the properties were thrown into the common stock. In my opinion it is good evidence from which such an inference can be made and the Courts below were right in making such an inference. If from 1891 to 1910, a period of 19 years, the whole family regarded the properties derived from the maternal grandfather as joint family properties and mixed them up with the ancestral properties, it is good evidence that they were thrown into the common stock: vide Rajanikanta Pal v. Jaya Mohan Pal A. I. R. 1923 P. C. 57 There is not an isolated fact like a purchase but the treatment for 19 years.
6. The next question is what happened in 1910. Both the Courts below found that there was a completed partition in that year. In arriving at this conclusion they excluded from consideration an unregistered deed of partition, Ex. C. In this they were right. Ex. C. is inadmissible as evidence of a partition or of the terms of the partition. But the fact of a partition can be found with reference to other evidence: Jairam Das v. Raj Naraian A. I. R. 1922 All. 493 The fact of a division in status can always be inferred from the conduct of the family, and if from 1910 to 1918 there is unimpeachable evidence to show that the brothers lived as divided brothers, I do not see why a division in status cannot be inferred from such conduct merely because the deed of partition is inadmissible in evidence: Chhottalal Aditram v. Bai Mohkore  41 Bom. 466 In my opinion the fact of a division in status is not a term of the partition. Even if it were so, such conduct is evidence of a division in status by reason of the conduct itself and not by reason of the partition, and in this view it could certainly be considered. Both the lower Courts in this case found that the brothers were clearly divided in status. There is overwhelming evidence in support of this conclusion.
7. The next question is whether one can ascertain what were the shares that fell to the brothers in the partition of 1910. The deed of partition itself being inadmissible, no secondary evidence can be given as to the terms of the partition, and therefore it is not open to the Courts to consider what were the properties that fell to the share of Padmanabhachariar in the partition of 1910. But this does not prevent the Court from finding whether or not all the suit properties were being enjoyed by Padmanabhachariar as separate properties at the time of his death, and this is enough to sustain the plaintiffs' suit.
8. The Courts below have found that Padmanabhachariar was in possession of the suit properties as his separate properties at the time of his death. Again I think there is overwhelming evidence in support of this conclusion. The plaintiff as his widow is entitled to a decree for the suit properties on the footing of the bare possessory title of her husband unless defendants 1 and 2 can dispute the title which has been inherited by the widow, vide Gobind Prasad v. Mohan Lai  24 All. 157 by a superior title. They can displace it only by showing that in the partition these properties were not allowed to Padamanabhachariar. If they are to prove what properties were allotted to him in the partition, and that the suit properties were not allotted to him, they are confronted with the same difficulty as the plaintiff in proving the terms of the partition. As a matter of fact the evidence shows not merely that the properties were enjoyed exclusively by Padamanabhachariar at the time of his death, but also that they were enjoyed by him as his separate properties from 1910-18. There are lease-deeds filed in respect of two items and there is oral evidence for the third item, and both the lower Courts have unanimously acted upon such evidence. If it is permissible, I think the evidence is strong enough to even infer that the suit properties were allotted to the share of Padmanabha- chariar in the partition of 1910. But, as I have already said this is not permissible; but it is unnecessary for the plaintiff to succeed in this case to show that they were allotted in partition. It is enough for her to show that the suit properties were enjoyed by her husband as separate properties. To allege and prove this is not the same thing as to prove the terms of the partition of 1910, for the enjoyment of any item of property Padamanabhachariar as separate property is consistent not only with its being allotted to his share in partition, but also with its being allotted to another sharer and afterwards its being given to Padmanabhachariar by some later arrangement. I do not mean to say that there is such evidence in this case of any of the suit items falling to the share of some other sharer at first and then coming in the possession of Padmanabhachariar in the years following 1910 by some later arrangement. All that I mean is that to find separate enjoyment by Padmanabhachariar in the years following 1910 is not identical with saying that they fell to his share in 1910, and it does not amount to proving the terms of the partition. In this view the case strongly relied on by Subramania Aiyar, namely Jai Ram Das v. Raj Narain A. I. R. 1922 All. 493 does not help us in this case. In that case it was held that the fact of partition can always be proved by oral evidence even if there be an unregistered deed,* but the actual terms of the partition cannot be proved by oral evidence. It does not appear that in that case there was any evidence of any later enjoyment as separate property. If so, I have nothing to say against that case. The decision in Maung Po Lun v. Ma E Mai A. I. R. 1923 Rang. 57 carries the matter no further and does not require any discussion. This substantially was the view taken by my learned brothers Kumaraswami Sastri and Venkatasubba Rao JJ., in Ramuchetty v. Panchammal A. I. R. 1926 Mad. 402 It is unnecessary for me to hold that Ex. C is evidence to show the character of the possession as they seem to have held with reference to a similar unregistered deed of partition in that case. I doubt whether the decisions of the Privy Council in Rajangam Aiyar v. Rajangam Aiyar A. I. R. 1922 P. C. 266 and Varada Pillai v. Jeervarathnammal A. I. R. 1919 P. C. 44 enable one to go so far as that. I am inclined to agree with Jackson, J., in Neelan Venkataratanamma v. Varaha Narasimhachary A. I. R. 1926 Mad. 191 The unregistered deed of partition Ex. C. is certainly evidence that there was a talk of partition. on that date. In the Privy Council case Varada Pillai v. Jeevarathnammal A. I. R. 1919 P. C. 44 the document that was actually used to show the character of the possession was a document that did not require to be registered. It was merely a petition reciting the fact of prior gift and did not require registration. In the present case the document did require registration and it is inadmissible for any purpose affecting the immovable properties. But, as I have already said, it is unnecessary to use Ex. C. There is clear evidence that Padmanabachariar was enjoying the suit properties as separate properties and I have already observed that to prove that is not necessarily to prove the terms of the partition.
9. The above view is enough to dispose of the second appeal. But it seems to me one might go even a step further. Even if the terms of the partition cannot be proved, if there is later enjoyment of certain items as separate property such enjoyment amounts to partial performance of the contract of partition and its terms; and in such a case the partition can be given effect to by reason of its partial performance even though the terms of the partition as it took place at the time cannot be proved. On the same principle, it is now established by full bench decisions of this Court that Courts can give effect to a sale which has been acted upon by transference of possession and payment of purchase-money though the sale-deed itself has not been registered. I am unable to see any difference between the two cases. Even if a partition-deed requires registration as is contemplated by fresh legislation it seems to me that as a matter of fact a partition, when acted upon for several years by distinct and separate enjoyment so that one can infer a partial performance of the contract of partition, the matter stands on the same footing as an unregistered sale-deed partially carried out. The registration law in the one case stands on the same footing as the registration law in the other case. At present it is unnecessary to pursue this line of argument further.
10. I agree with the conclusions of the Courts below which were arrived at, apart from Ex. C. In the result the second appeal fails and is dismissed with costs. The defendants will be allowed two months time for paying the balance of the amount of mesne profits.