In order to understand the contentions of the several parties in these two second appeals the earlier history of these litigations has to be set out in brief outline. The suit of which these two second appeals arise was instituted as early as 12th February, 1937, by the plaintiff, the youngest of five brothers, against his elder brothers for a partition of the family properties some of which are situated in India and some in Cochin State. The family was of a humble origin but later on, through the exertions of some of the brothers, acquired considerable landed properties. There was also a lucrative Coffee Hotel business carried on at Trichinopoly by some of the brothers. Misunderstandings arose between the brothers which resulted in a demand for partition by one of them on 8th September, 1936. All the brothers then met together and after some deliberation settled their disputes in a way. On 15th September, 1936, they entered into an agreement evidenced by Exhibit XX to divide the properties in the manner set out therein. All of them signed the document presumably in token of their consent to its terms. Under Exhibit XX the present first defendant, the eldest brother, got for his share certain lands situated in Cochin State which was subject to an encumbrance of Rs. 3,000 and certain lands and a house situated in Ottapalam. To the share of the second brother, the present second defendant, was allotted the Coffee Hotel business in Trichinopoly known as “Bheema Central Lunch Home” with all its moveables and also certain lands and the family houses in Ottapalam. The next two brothers, defendants 3 and 4 were allotted another Coffee Hotel in Trichinopoli known as the “Central Cafe” with all its moveables but with the liability to redeem a pair of a diamond ear-rings which had been pledged for Rs. 2,500, apparently for the purposes of the business, and hand it back to the first defendant. The plaintiff, the last of the brothers, was allotted a building and the remaining lands in Cochin State together with a sum of Rs. 1,000 agreed to be paid to him for the value of certain jewels. The plaintiff was saddled with a liability to pay off a mortgage for Rs. 2,500 outstanding on the lands allotted to him in Cochin State. No provision was made in Exhibit XX for the division of the moveables mentioned in Schedule V of the plaint or the outstandings specified in Schedule C. Exhibit XX was left unregistered. It was however followed up by Exhibit II, dated 19th September, 1936, signed by all the five brothers by which in accordance with the terms embodied in Exhibit XX, the Coffee Hotel known as “The Bheema Central Lunch Home” with all its moveables valued at Rs. 4,500 was transferred absolutely to the second defendant and the Coffee Hotel known as the “Central Cafe” with all its moveables valued at Rs. 10,000 was transferred to defendants 3 and 4 absolutely. With regard to the remaining properties which were agreed under Exhibit XX to be divided among the brothers, Exhibit II, recited that since the brothers were not in possession of the exact description, survey numbers and other details of the properties they would draw up a formal document later on. There was an unsuccessful attempt on the part of the first defendant to modify the stipulations in Exhibit XX and also some considerable delay in implementing the terms of Exhibit XX by delivery of the properties allotted to the plaintiff which led to his present suit for partition from which these appeals have arisen.

The suit was numbered as O.S. No. 8 of 1938, and decided by the Subordinate Judge of Ottapalam who held that Exhibit XX was not a final partition but only a tentative arrangement between the parties as regards partition; that it was inadmissible in evidence for want of registration; and allotments made under Exhibit XX were unequal in value. He therefore decreed a general partition holding, however, that effect must be given to Exhibits XX and II to this extent, namely, th