Creation of interest in immovable property embodied in the document of partition.

Subba Rao, J.-This is a defendant’s appeal against the preliminary decree for partition in Original Suit No. 24 of 1946 on the file of the Court of the Subordinate Judge, Masulipatnam. The plaintiff is the paternal grandfather of the defendant. The defendant’s father was Satyanarayana who died in the year 1921. They constituted members of a joint Hindu family and possessed of immoveable properties set out in the A and B schedules annexed to the plaint and some moveables. The plaintiff filed the above suit for partition of the family properties and. for profits The defendant inter alia pleaded that there was a partition of the family properties through the intervention of mediators and he was put in possession of the properties that fell to his share. He relied upon a document embodying the arrangement between the parties. He also resisted the suit on the ground that the plaintiff was precluded from questioning the alleged partition on the doctrine of part-performance.

As many as eleven issues were raised in the suit but it is unnecessary to consider them in detail as the learned advocates confined their arguments before us only on two points.

The learned Subordinate Judge held that the letter dated 15th February 1944 alleged to have been executed by the plaintiff was not admissible in evidence’. He passed a preliminary decree effecting a division into two equal shares of the properties set out in the schedule to the plaint. The defendant preferred the above appeal.

The learned counsel for the appellant raised two contentions before us:

(1) that the document dated 15th February, 1944, is admissible in evidence as it only recorded a completed partition that was entered into between the parties through the intervention of the mediators.

(2) that the defendant having been put in possession of the properties that fell to his share is entitled to defend the suit on the ground of part-performance.

The first point turns upon the construction of Ex. X-1. It may be pointed out that the contention now raised before us, namely, that the document was only a record of a completed oral partition that was entered into between the parties was neither raised in the pleadings nor the question was argued before the learned Subordinate Judge. The only question that was addressed to him was that the document did not require registration as it contemplated a formal document being executed subsequently. The document gives in detail the nature of the disputes between the parties and also the settlement of the same through the intervention of the mediators. The properties allotted to the respective parties are minutely described. It provides for payment of money for equalization of the shares; the debts payable by the respective parties are detailed; covenants of mutual indemnity are also embodied in the document; it was signed by the plaintiff and the mediators attested the same. In short, all to terms in regard to the partition of the properties between them are embodied in the document. The document contains the following recital:

“In the said settlement the mediators settled to give the hereunder A schedule 1 and 2 items of property to me, the B schedule mentioned property to the minor, and the G schedule mentioned property to your daughter Leelavati on your behalf, towards the income that may be got from the family property for the property given to you for pasupu kunkuma (pin money). Therefore, C schedule mentioned property fell to Leelavati. As regards the said properties, we have this day accordingly taken possession of the lands inclusive of the heaps of crops and the standing crops that fell to our respective shares. Hence, we shall not raise disputes with each other.”

These recitals clearly show that the document itself creates a right in presenti in favour of the parties to the deed. The learned advocate relied upon the recital in the document, namely, that:

“We shall enter into a proper document before 15th March, 1944 and get it registered