The main legal point established in the judgment is the admissibility of partition deeds under the Indian Registration Act 1908, emphasizing the language and intended effect of the deeds on rights and interests in immoveable properties.

John Wallis, C.J.

1. This is an appeal from a decree of the District Judge of Tinnevelly in a partition Suit brought by the 1st plaintiff now deceased against the defendant the son of his deceased brother. When the case came on after repeated adjournments the defendants vakil stated that he had no instructions and, after the plaintiffs evidence had been recorded and his pleader heard, the case was closed and judgment reserved. The defendant afterwards applied to the Court to hear arguments on his side before disposing of the case and to pass such other orders as were just and proper in the circumstances of the case. The District Judge rejected his application and we are not prepared to interfere with his order. The defendant had been grossly remiss. It is stated in the plaintiffs counter affidavit and not denied that the defendants vakil had sent him two registered notices to which the defendants paid no attention. All that he did was on the day before the hearing to send a telegram to an agent at Palamcottah five miles from the Court house asking one Sankaranarayana, who, he says, was his agent to remit Rs. 150 to the Vakil soon. As regards the allegation in his affidavit that he was taken ill at Kumbakonam there appears, as the District Judge has observed, to be no valid reason why he should not have wired directly to his Vakil. The defendant was inexcusably remiss, and it would operate as an encouragement to similar remiss-ness in others if we were to interfere to save him from the consequences.

2. The main question argued before us in the appeal was whether two partition deeds Exhibits Ay and Az were inadmissible in evidence for want of registration, as instruments " which purport or operate to create, declare, assign, limit, or extinguish any right, title or interest to, or in immoveable property," within the meaning of Section 17(1)(b) of the Indian Registration Act 1908.

3. It has been held consistently in this Court that a partition deed which effects a division in status only and not by metes and bounds comes witttin these words where the joint family property includes immoveables. It has the effect in Lord Westburys words in Appuviers case 11 M.I.A. 79, 92 of severing the joint tenancy in such immoveables and converting it into a tenancy in common, and thus in the very language of section operates to extinguish one set of right in the immoveable properties and to create another set in their place.

4. In the present case Exhibit Ay, the earlier deed which provides for an immediate division, requires to be registered unless it can be brought within Clause (5) of Sub-section (2) of the same section which excepts any document not itself creating, etc., any right, title or interest in immoveable property but merely creating a right to obtain another document which will when executed create, etc., any such right, title or interest.

5. Now Exhibit Ay does provide that " a partition deed in the terms mentioned herein shall be executed and registered in the registration offices of this place (Trivandram) as well as Tinnevelly as soon as possible " and so far comes within the exception but, to come within the exception, it must not itself create, declare, assign, limit, or extinguish any right, title or interest in immoveable property. We have only to refer to the terms of Exhibit Ay to see that it effects a separation or division in status as from the date of execution. "From this day forward each party shall enjoy the properties in the schedule allotted to his share". " Further it provides that till the execution of the registered deed this itself shall be in force." In my opinion Exhibit Ay is clearly inadmissible as coming within Clause (b) of Sub-section (1) and not within the exception in Sub-section (2) Clause (5). Exh. Ay allotted Properties valued at Rs. 72,500, to each brother and additional preperties valued at Rs. 48,200, to the elder brother by way of Jyeshtabhagam or elder brothers share. Exhibit Az which was