Plaintiff has pleaded that it was orally agreed between the parties that the deed of 16th November, 1914, was not to be treated as the partition deed between them but that a fresh formal deed was to be executed and registered for that purpose This agreement can certainly be proved and it does not in any way affect the terms of partition between the parties which are noted in the deed. The deed calls itself a share list and not a partition deed. If the oral agreement is proved, the written deed can only be treated as the minutes of agreement between the parties and not as a completed partition deed and there is no difficulty then in admitting it in evidence, for want of registration, to prove the terms agreed to.
If on the other hand the plaintiff fails to prove the oral agreement set up by him and that the deed was only a memorandum of what was agreed and the defendants show that the deed itself was intended by the parties to be the final partition deed between them, it will be clearly inadmissible in evidence for want of registration. It could not then be treated merely as embodying an agreement between the parties and further plaintiff will not be entitled to ask for a fresh deed as his remedy would only have been to get that deed registered, which it is now too late to do. See Venkatasami v. Kristayya(1).
As the Munsif disposed of the case without taking any evidence, the order of remand to him was right and he will now dispose of it according to law in the light of the above observations.
Costs will abide and follow the results.
K.V.SOrder confirmed.