Patanjali Sastri, J.
1. This is an appeal by the defendant against a decree directing his ejectment from the suit property and the delivery thereof to the respondent. The appellant and the respondent are two out of five brothers who originally formed a joint Hindu family. Two of the brothers separated in June, 1930, and the appellant and the respondent and one Subba Rao continued joint till 20th May, 1932, on which date the properties held by them jointly till then were divided between them under the document marked as Ex. A. The respondent's case was that the property in suit was among the properties allotted to his share under this document and that the appellant unlawfully trespassed upon it shortly before the suit.
2. The document which is described as 'list of shares of immovable property equally divided on 20th May, 1932, among these three individuals, namely, etc.', recites:
We, namely, our five brothers effected partition previously, that is, on 16th June, 1930, and we were keeping our three shares jointly up till now and managing the same. We have now mixed the property pertaining to our three shares together and have again effected division of the same with reference to good and bad qualities through mediators as follows.
Then follow the lists of properties allotted to each sharer who has signed at the end of his list. A 'remark' at the end provides:
That each of us should with full rights, enjoy the trees and fruit trees which are in his lands, that each should pay circar taxes for the lands pertaining to (his) respective share and that each should enjoy his respective share with rights of alienation by way of gift and sale.
And the document as a whole is signed by all the three brothers and attested by two witnesses and the writer. It is thus clear that the document purports to effect a partition of the properties comprised therein between the three brothers and it is admitted by the appellant's own witnesses that the allotment under it was intended to be final.
3. It was argued for the appellant that this document (Ex. A) not having been registered, was inadmissible to prove the allotment of the suit property to the respondent, and that as the latter based his title only on Ex. A, his suit was bound to fail. The Court below has repelled this contention on two grounds. First, it has held relying upon the oral evidence in the case that it was intended that there should be another comprehensive partition deed executed subsequently when the movables and outstandings belonging to the family were to be divided, incorporating therein the allotment of the immovable properties made under Ex. A, and that therefore the partition under Ex. A could not be treated as a final partition and did not require registration. This view cannot be accepted, for, as already observed, it is not disputed that the allotment of the immovable properties under Ex. A was intended to be final. The mere fact that the parties contemplated the execution of a more comprehensive partition deed later on does not make Ex. A any the less operative to create interests in the immovable properties comprised therein. It cannot therefore be said that Ex. A does not require registration. It clearly falls within Section 17 of the Registration Act and being unregistered, it must be held to be inadmissible in evidence.
4. It is, however, argued by Mr. Somasundaram for the respondent that even if this partition deed is put aside as inadmissible in evidence, it is still open to the Court to take into consideration the subsequent conduct of the parties; and as both the Courts have found that the respondent was in exclusive possession for about two years after the partition till the appellant trespassed upon the suit property in 1934, the decision of the Court below can be supported on the ground of the respondent's possessory title. Mr. Somasundaram placed reliance upon a decision of Ramesam, J., in Ahobilachariar v. Thulasi Ammal : AIR1927Mad830 , which to some extent appears to support his contention. That was a case where the plaintiff sued to recover certain properties alleging that her deceased husband and his brothers divided certain properties in 1910, that in such division the properties claimed fell to her husband's share and were enjoyed by him till 1918 when he died and that her husband's brothers thereupon trespassed upon those properties. The learned Judge held that the partition of 1910 being unregistered was not admissible in evidence and could not therefore be relied on to show what properties fell to the share of the plaintiff's husband. The learned Judge, however, proceeded to hold that this did not prevent the Court from finding that the properties there in question were enjoyed by the plaintiff's deceased husband as his separate properties at the time of his death, and passing a decree in favour of the plaintiff on the strength of such possessory title which had devolved on her. With due respect I find it difficult to follow this reasoning. If the partition deed could be used as evidence of only a division in status and could not be relied on to show that the properties there in question were allotted to the share of the plaintiff's husband as held by the learned judge, the position would be that the plaintiff's husband and his brothers were tenants in common of the family properties. As pointed out in Subba Rao v. Mahalakshmamma : AIR1930Mad883 , the finding that the partition deed was inadmissible to show what property fell to each co-sharer must result in the conclusion that each co-sharer enjoyed an undivided share in each item of the properties. In such circumstances, even if one co-sharer happened to be in sole enjoyment of a particular piece of property, he could not as it seems to me, sue in ejectment if another co-owner disturbed such enjoyment. He could only bring a suit for partition of all the properties owned in common or, according to some decisions, for joint possession with his co-owners. Mr. Somasundaram was unable to cite any authority binding on me holding that a possessory title, that is to say, mere previous possession can be made the basis of a decree in ejectment against co-owners. I have to hold therefore that the appellant being unable to establish his exclusive title to the property in suit on the basis of its allotment to his share at a valid partition, is not entitled to the relief claimed by him in the suit.
5. The next ground relied on by the lower Court in support of the conclusion that the plaintiff was entitled to a decree for possession is that the doctrine of part performance is applicable to the circumstances of the case, as the appellant was found to have been in possession of the property in pursuance of the partition till the respondent disturbed such possession in 1934, and reliance was placed on certain decisions which-were, however, cases decided before the Transfer of Property Amendment Act of 1929. The limits of the application of the doctrine of part performance have now been defined in Section 53-A of the Act and it is plain that that provision only entitles a person in possession to invoke the doctrine as a shield to protect such possession if the conditions therein referred to are satisfied and does not enable a person who has lost possession to sue for recovery of it. Mr. Somasundaram frankly admitted that he could not invoke that doctrine in the circumstances of this case.
6. In the result, the second appeal is allowed and the plaintiff's suit is dismissed with costs throughout.
7. Leave to appeal is granted.