Chitambaresh, J.

The court below has again decreed the suit for specific performance pursuant to the order of remand in A.S. No. 24/2000 by this court and the first defendant has come up in appeal. A quarter century has elapsed since the execution of the agreement for sale and the matter has to be given a quietus one way or the other. We heard Mr. T.O. Xavier, Advocate on behalf of the appellant and Mr. V.V. Asokan, Senior Advocate and Mr. K.C. Eldho, Advocate on behalf of the respondents.

2. The subject matter of the suit is a shop room bearing Door No.38/941 with rights over the common staircase, water tank etc. in the ground floor of a three storied building. The building houses many shop rooms on a land purchased in the name of defendants 1 to 3 (under sale deed No.3039/1982) by their maternal grandfather. It appears that their father constructed the building with an intention that each floor should go to defendants 1 to 3 separately. Ext.A4 agreement was later executed with a 'declaration' that the ground, first and second floor would belong to defendants 1, 2 and 3 respectively. The third defendant being a minor was represented by her father as the guardian in Ext.A4 agreement executed after the construction of the building.

3. The first defendant subsequently entered into Ext.A1 agreement for sale in respect of Shop room No.38/941 with the plaintiff for a consideration of Rs. 5,50,000/-. It is explicitly stated in Ext.A1 agreement that the first defendant derived title to the shop room under Ext.A4 agreement for partition. Ext.A1 agreement for sale has sanctity only if the first defendant derived title to the shop room under Ext.A4 agreement for partition which is unregistered. The land was purchased jointly in the names of defendants 1 to 3 who however had no pre-existing title over the building constructed by their father.

4. Ext.A4 agreement for partition is not a memorandum recording past partition as a family settlement in the light of the 'declaration' therein as regards division. Ext.A1 agreement on the other hand is emphatic that the first defendant derived title to the shop room and the appurtenant land under Ext.A4 agreement only. Ext.A4 agreement is hit by Section 17(2) of the Registration Act, 1908 in the light of the decision in Kale v Deputy Director of Consolidation [(1976) 3 SCC 119]. It is held therein as follows:-

"(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum-prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;"

To the same effect is the dictum in Tek Behadur Bhujil v. Debi Singh Bhujil [AIR 1966 SC 292] which decisions have been followed in Sosamma Oomman v. Annamma Simon [2016 (4) KLT 122 (DB)].

5. The first defendant in the additional written statement and defendants 2 and 3 in their written statement have disputed the legality of Ext.A4 agreement as a partition deed. Firstly, Ext.A4 agreement for partition was executed at a time when the third defendant was a minor and represented by her father. Secondly, defendants 1 to 3 had no pre-existing right over the building in their property which was admittedly constructed by their father when he was alive. Thirdly, Ext.A4 agreement is not a memorandum recording past partition which is therefore hit by Section 17(2) of the Registration Act, 1908. Fourthly, it cannot be stated with precision that shop room No.38/941 belonged to the first defendant alone on the date of E