1. This is an appeal on behalf of the plaintiffs against a preliminary-decree in a suit for partition of joint family properties. The father of the plaintiffs was the uterine brother of the defendant, and it is not disputed that the joint properties are owned by the parties in equal moieties. The defendants resisted the claim substantially on the grounds that the homestead had been previously partitioned, and that the frame of the suit was defective inasmuch as various items of joint properties had been excluded from its scope. It is unnecessary to discuss in detail the second objection because the parties are agreed that all properties which are proved to be joint, must be included within the scope of the litigation. The controversy between the parties has been directed' principally to the first ground. The defendant, in support of his allegation of a previous partition of the homestead, relied upon a deed executed by the parties on the 25th October 1893. The Court of first instance held that this document was inadmissible, because it had not been registered as required by Section 17 of the Registration Act. The Court further held that there had been some sort of amicable partition of the homestead between the parties though the transaction did, not amount to a complete and regular partition. But in view of the fact that this arrangement had continued for a good many years, and the defendant on the faith of the permanency of the distribution had spent considerable sums on repairs of a portion of 'the homestead in his occupation and had, oh the 14th Jane 1896 and 3rd July 1897, purchased from the plaintiffs portions of the homestead in their occupation, the Court directed that the partition should be so effected as to award to the parties the blocks and cook rooms respectively in their possession. The Subordinate Judge further directed a division in equal halves of all the other properties. The plaintiffs as well as the defendants were dissatisfied with this decision and appealed to the District Judge. The District Judge held that there had been an amicable partition of the properties mentioned in the deed of the 25th October 1893 and the map attached thereto, and on the 'ground that the arrangement had been acted upon for some years, he concluded that the properties marked in the plan must be excluded from the partition. The District Judge further directed that the Commissioner appointed to effect the partition by metes and bounds, should determine by summary enquiry whether the properties as to which the parties were not agreed, were really included in the joint estate. In this view he modified the decree of the Court of first instance. The plaintiffs have now appealed to this Court, and on their behalf, the decision of the District Judge has been assailed substantially on two grounds, namely, first, that the properties covered by the deed of the 25th October 1893, have been erroneously excluded from the partition; and, secondly, that the Commissioner ought not to, have been authorised to decide whether the disputed properties were joint or not, a question to be determined upon evidence by the Court itself before the preliminary decree was made. On behalf of the respondent, the second of these grounds has not been challenged but in answer to the first contention, it has been argued, first that as the partition of the homestead relied upon by the defendant was effected in 1887, the deed was admissible although it was not registered; and, secondly, that as the partition had been acted upon, it ought to be upheld on the equitable ground of part performance, because if it was negatived, the plaintiffs would be enabled to commit an act of fraud.
2. In support of the first point taken on behalf of the appellants, it has been argued that the deed of the 25th October 1893 was, in essence, a deed of partition; that it was compulsorily registrable under Section 17 Clause (6) of the Registration Act; that inasmuch as it was not so registered, it was inadmissible under Section 49 of the Registration Act so as to affect any immovable property comprised therein, or as evidence of any transaction affecting such property; and consequently under Section 91 of the Indian Evidence Act, no other evidence was admissible in proof of the terms of such disposition of property. It has not been disputed on behalf of the respondent that the property affected by the deed of the 25th October 1893, was of the statutory value and that if the document is regarded as a deed of partition, it was compulsorily registrable under Section 17 Clause (6) of the Registration Act. It has been argued, however, on behalf of the respondent, that though compulsorily registrable and yet unregistered, it is still admissible in evidence in proof of the agreement for partition of the homestead which must have preceded the actual partition itself. In support of this view relianoe has been placed upon the cases of KedarNath Dutt v. Shamloll Khettry 11 B.L.R. 405 : 20 W.R. 150 and Mugni Ram v. Gurmukh Roy 26 C. 334. In our opinion, the principle deducible from the cases to which reference has been made, is of no assistance to the respondent in the case before us. It is clear that the deed of the 25th October 1893, whether it is treated as a deed by which the partition was effected or as a deed which declared a partition previously effected by the parties, was compulsorily registrable under Clause (6) of Section 17 of the Registration Act, which provides that a non-testamentary instrument, other than an instrument of gift of immovable property; which purports, or operates to create or declare any right, title or interest in immovable property of the statutory value, must be registered. If any authority is needed in support of this proposition, reference may be made to the cases of Lakshmamma v. Kameswara 13 M. 281 and Ram Chandra Krishna v. Dinkar Ramchandra 2 Bom. L.R. 800, where it was ruled that a deed of partition, either declaring certain rights over immovable property, or reciting the allotment of lands and containing an agreement to act accordingly, is compulsorily registrable. This view is really not inconsistent with that indicated by Westropp, C.J. in Kachu Bhai v. Krishna Bai 2 B. 635,where he held that a deed is not required to be registered, merely because it recites that the bulk of the family property had been divided previously to its date. The essence of the matter is, whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. In the case before us, the document is described on the face of it as an amicable partition deed of the homestead which the defendant now alleges had been previously partitioned in 1887, and of the lands adjoining thereto. The document further recites that the settlement was made on the day of its execution, and that the parties undertook to abide by it in future. In the written statement of the defendant in the present case, although it is stated that the inner apartment of the homestead had been amicably partitioned, and possession had been held accordingly, the partition was kept enforced on the 25th October 1893, and to preserve evidence of the transaction the document in question was executed. It is further admitted in the written statement that portions of the joint family properties other than the inner apartment were, for the first time, divided on the date of the execution of the document. It is dear, therefore, that the intention of the parties was that the document should be the only repository and the appropriate evidence of the partition. Considered from this point of view, the document is clearly inadmissible by reason of want of registration. This view is supported by the observations of Sir Richard Couch, C.J. in the case of Kedarath Dutt v. Shamloll Khettry 11 B.L.R. 405 : 20 W.R. 150. The defendant seeks to use the document in evidence, not for any collateral purpose but to prove that certain portion of what was at one time admittedly joint property, had ceased to be such, in other words, that the title to such property has been altered by the partition transaction without proof of which the property would still retain all the incidents of joint property. It may be conceded, as ruled in the cases of Bengal Banking Corporation v. Mackertich 10 C. 315, Adakkalam v. Theethan 12 M. 505, and Nagappa v. Devu 14 M. 55, 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. That doctrine, however, is clearly inadmissible in the case before us. The defendant does not seek to enforce the agreement for partition which may be imagined to have preceded the alleged actual partition of the homestead. But he wishes to exclude from the scope of the present litigation, the property which on the face of the deed in question, was partitioned thereby. It is manifest that the jieed 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. [See Sex. v. Castle Morton (1820) 3 Barn & Ald. 588 : 22 R.R. 493]. In fact, it is obvious that if the contrary view were maintained, the principle on which a document is denned part of the essence of the transaction and consequently the sole as well 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 acts 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 do not 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 as observed in Burjorji Cursetji Panthaki v. Muncherji Kuverji 5 B. 143 and Bengal Banking Corporation v. Mackertich 10 C. 315, Clauses (6) and (h) of Section 17, may be reconciled if we hold that a document, though not admissible as creating aa interest in land, is receivable in evidence for a collateral purpose, namely, for the purpose of obtaining specific performance of the agreement. As we have already explained, however, the defendant here seeks to use the deed of 1893, not for a collateral purpose but to prove that the property covered thereby has ceased to be joint property. For such a purpose, the document, in our opinion, is inadmissible. The first branch of the contention of the learned Counsel for the respondent must consequently fail.
3. 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, if their contention prevail, will be practically enabled to commit an act of fraud, no Court of Equity should assist them to effectuate such & purpose. In support of this proposition, reliance has been placed upon the case of Bibi Jawahir Kumari v. Chatterput Singh 2 C.L.J. 343, which was followed by Fletcher, J. in the case of Singhiram Poddar v. Bhagabat Charan Nandi (Unreported) Suit No. 475 of 1909. Reference has also been made to the decisions in Nemai Charan Dhabal v. Kokil Bag 6 C. 534 : 7 C.L.R. 487, Kedar Nath v. Poorna Sundari (Unreported) Suit No. 643 of 1908, Parker v. Taswell 2 De G. & J. 559 : 27 L.J. Ch. 812 : 6 W.R. 608 and Lincoln v. Wright (1859 ) 4 D G. & J. 16. 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, if 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 falls to be determined. In our opinion neither of these principles is 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. It is well settled, as stated in (the case of Satya Kumar v. Satya Gopal 10 C.L.J. 503 : 3 Ind. Cas. 247, that although there may be partial partition by private arrangement, there cannot be a partial partition by a suit. On the same principle, a suit ought not to be entertained for specific performance of an agreement to effect a partial partition of joint property. To allow such a suit to be maintained, would be to enable the parties to do indirectly what the Court would not assist them' to achieve directly. If, therefore, specific performance could not have been claimed of the agreement which may be imagined to have preceded the partial partition, the principle of the decision in Walsh v. Lownsdale (1882) 21 Ch. D. 9, and Bibi Jawahir v. Chatrapat Singh 2 C.L.J. 343, has obviously no application. It is equally clear that the doctrine of part performance has no application. The principle upon which the doctrine of part performance rests, was explained by Lord Selborne in the case of Maddison v. Alderson 8 App. Cas. 473 : 52 L.J. Q.B. 737 : 49 L.T. 303 : 31 W.R. 820 : 47 J.P. 821,substantially in the following mariner. The real ground of equitable intervention is that there is an irrevocable act which has lifted the contract oat 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 gesta must be such as could be done within no other view or design than to perform the agreement, there must be some evidentia rei, 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 action for specific performance [Lavery v. Pursell 39 Ch. D. 508 : 57 L.J. Ch. 570 : 58 L.T. 846 : 37 W.R. 163]. 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 well settled that the mere fact of payment of money is not necessarily an act of part performance, Clinan v. Cooke 1 Sch. & Lef. 22;. Watt v. Evans 4 Y & C. Ex. 579, Britain v. Rossiter 11 Q.B.D. 123 : 48 L.J. Ex. 362 : 40 L.T. 240 : 27 W.R. 482 and Hughes v. Morris 2 D. M. & G. 349 at p. 356 : 21 L.J. Ch. 761 : 16 Jur. 603. In other words, an act done by a party in pursuance of the parol agreement in order to be a part performance of it mast 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. Even if it be conceded, therefore, that as indicated in the eases of Williams v. Williams (1865) 2 Dr. and Sm. 378 : (1867) L.R. 2 Ch. App. 294, and Cood v. Cood (1863) 33 Beavan 314, a family arrangement for the division of land, although only verbal, will be upheld when it has been carried out by acts of part performance by the parties interested, holding and dealing with the land in accordance with the terms of the arrangement, it is clear that the doctrine is not applicable to the case before us. Nor does the doctrine of fraud, in support of which reliance was placed upon the case of Baksu Lakshman v. Govinda Kanji 4 B. 594, really assist the respondent. The plaintiffs do not and cannot claim to take advantage of the improvements alleged to have been effected by the defendantor to retain the fruits of the sales of the 14th June 1896, and l3th July 1897. All that they contend is that as the deed of partition is inoperative, a partition should be effected by decree of the Court subject to such equitable considerations as may properly be applied to adjust the rights of the parties. It is manifest that complete justice may be done if we direct that although all the joint properties are to be partitioned, the portion of the homestead of which the defendant has been in possession as also the cook rooms which he has purchased should be allotted to his share. 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, equity will take this fact into consideration upon a partition, and in some way will make an allowance to him therefor, in addition to his rateable share of the property. [Swan v. Swan (1820) 8 Price 518 : 22 R.R. 770, Pascoe v. Swan (1860) 29 L.J. Ch. 159, Watson v. Gass (1881) 51 L.J. Ch. 480, In re Jones (1893) 2 Ch. 461 at. p. 478, Williams v. Williams (1899) 68 L.J. Ch. 528, and Kenrick v. Mount Steven (1899) 48 W.R. 141, where many of the earlier authorities will be found collected] In other words, as stated by this Court in Digendra Narain Roy v. Purnendu Narain Roy 11 C.L.J. 189 at p. 196 : 5 lnd. Cas. 171, although a co-tenant who has spent money in the improrement 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 enforcible in the event of a partition; it is in recognition of such equitable right that to the co-owner who has made the improvements, 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 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 [Story v. Johnson 1 Y & C. Ex. 530.] 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. It is not necessary for us to consider what the position would be, if a joint owner purposely covered the whole of the estate with valuable improvements, in such a manner as to render it impossible to assign the shares of others without including part of such improvements. It is sufficient to state that no such considerations arise in the present case because there is no controversy here that the improvements, if any, have been effected in good faith, upon the portion of the joint property in the occupation of the defendant. When the partition, therefore, comes to be effected, the north facing' block, which has been in the occupation of the defendant, will be allotted to his share, and the value thereof will be taken in its unimproved condition. The two cook rooms also purchased by the defendant from the plaintiffs, will be allotted to his share, and as the plaintiffs obtained from the defendant Rs. 175 and Rs. 200, respectively for the rooms on the assumption that they were exclusively entitled thereto in proprietary right, the defendant will have credit for these sums. If the partition is effected in this manner, it is clear that no injustice will be done and there will be no foundation for the suggestion that the plaintiffs will be enabled to comit a fraud and to enrich themselves unjustly at the expense of the defendant. The second branch of the contention of the defendant must, therefore, fail. The first ground urged on behalf of the appellants will consquently prevail, and all the joint properties will be partitioned in the manner indicated.
4. In support of the second ground urged on behalf of the appellants, it has been contended that the 'District Judge ought not to have delegated to the Commissioner the determination of the question as to whether certain disputed properties are joint properties, and in support of the proposition reference has been made to the case of Tincowrie Devi v. Suttya Dayal Banerji 6 C.L.J. 105, where it was ruled that the Commissioner cannot deal with the case as if he is the Judge or an arbitrator appointed by the parties. It has not been disputed on behalf of the respondent that the course adopted by the District Judge cannot be justified. As pointed out by this Court in the case of Satyakumar Banerji v. Satya Kripal Banerji 10 C.L.J. 503 : 3 Ind. Cas. 247, the question whether a particular property, alleged to be joint really possesses that cha-racter,must be determined before the preliminary decree is made; all questions involving the title of the parties and their right to any relief within the issues, are judicial in character, and must be determined by the Court, such determination to be made ordinarily by the Court and incorporated in the interlocutory decree before any partition is made or directed. The second objection, therefore, must prevail.
5. The result is that this appeal is allowed and the decrees of both the Courts below discharged. The case will be remitted to the Court of first instance in order that the question of the extent of the joint properties may first be investigated, and a preliminary decree made thereafter for partition of the properties in the mode already directed. The costs of this appeal will abide the result.