The admissibility of the unregistered deed of gift, applicability of the doctrine of part performance, and the point of limitation were central legal points established in the judgment.

Findlay, J C—I need not repeat in detail the facts of the present case, which are clearly given in the judgments of the two lower Courts. The plaintiff Ramrao has now come up on appeal to this Court against the decree of the Lower appellate Court, affirming that of the first Court dismissing his suit.

2. The first point urged on behalf of the plaintiff-appellant is that the unregistered deed of gift (I. D. 5) was wholly inadmissible in evidence, having regard to the provisions of Section 123, T.P. Act, and Sections 17 and 49, Indian Registration Act, and it has been urged on the strength of the observations made by Stanyon, A.J.C., in Dinanath v. Manbodh,1916 12 NLR 139, that, as the deed of gift in question was compulsorily registrable, it must be wholly excluded from consideration in the present case and is not, indeed, admissible in evidence at all.

3. For my own part, I am wholly unable to assent to this proposition. Their Lordships of the Privy Council have laid down a contrary view in Varada Pillai v. Jeevarathnammal, 1919 AIR(PC) 44, and Kandasami Pillai v. Chinnabba, 1921 AIR(Mad) 82, and very clearly, in the circumstances of this case, the learned 'District Judge was perfectly justified in taking into consideration the deed of gift in connexion with the question of the nature of the possession of Jijabai, and, after her death, of her only son and heir.

4. It has next been urged that the doctrine of part performance was not applicable in the circumstances of the present case,; as there was in existence no provable and enforceable agreement. The circumstances of the decision in Sanjib Chandra v. Santosh Kumar, 1922 AIR(Cal) 436 were somewhat special. The suit there was for specific performance of an agreement to lease certain property. The document, although compulsorily registrable, was unregistered and Rankin, J., held that, in the circumstances, it was inadmissible in evidence for the purpose of proving the agreement sought to be specifically performed. A view opposed to that offered by the appellant has been taken by a Bench of this Court in S.A. No. 473 of 1923, decided by Hallifax and Prideaux, A. J. Cs., on 13th January 1927 : cf. also Mahomed Musa v. Aghore Kumar Ganguli, 1914 AIR(PC) 27, Vizagapatam Sugar Co. v. Muthuramareddi, 1924 AIR(Mad) 271, Sandu Walji v. Bhikchand Surajmal, 1923 AIR(Bom) 473, and Maung Ok Kyi v. Ma Pu, 1927 AIR(Rang) 33. Here, on the pleadings of the parties, even if the gift, as such, was invalid, the lower appellate Court has held that they have changed their position and, from this point of view, I find myself in full agreement with the learned District Judge, that, in the circumstances of the present case, the doctrine of part performance applies. Their Lordships of the Privy Council's decision in Varada Pillai v. Jeevarathnammal, 1919 AIR(PC) 44, above quoted, seems, in short, to me to apply with full force in the circumstances of the present case and I am of opinion that the District Judge was correct in the view he took in this connexion.

5. It has been suggested that the wording of the deed of gift is not such as to show that possession actually passed. It might well be argued that its terms imply such passing of possession, but, in the present case, there is ample other evidence to show that possession did pass and, therefore, the recitals in 1 D. 5 are relevant and a missible to show the nature and kind of the possession.

6. The next question, which has been agitated in this second appeal, is that the lower Court's finding that Jijabai had been in possession is incorrect and is not justified by the evidence on record. It is true that the burden of proof in this connexion rested on the defendant-respondents and I have been referred to documentary evidence like that of the jamabandis (P 10 and P 14)'and the receipts (P 6 and P 7) as well as the malguzar's account-book (P 9) as establishing the plaintiff's position and showing that he paid rent for the field. All these matters,