Venkatasubba Rao, J

[1] The question to be decided in this appeal is, whether or not there was a completed partition between the plaintiff and his brothers, the defendants. If the plaintiff s allegation that there was a partition, is found to be true, he will be entitled to the injunction claimed; otherwise not. The only defendant who denied the partition, is the first defendant, who was the manager of the family. At the trial two documents were filed, described as partition lists (Exs. E and E-1). Ex. E relates to the lands owned by the family and sets out the items that fell to the share of each member; Ex. E-1 is a sketch of the houses and similarly describes which items were allotted to which member. There are some subsidiary conditions appended as to the mode of enjoyment. The partition set up in the plaint was an oral partition and the first defendant boldly denied that there was in fact any partition ever effected. The plaintiff was then obliged to produce the lists (Exs. E and E-1) as evidence of the fact that there was, independent of these lists, a completed partition. Both the Courts below as well as Burn, J., who heard the second appeal, were of the opinion that notwithstanding Exs. E and E-1 were unregistered, they were admissible in evidence. Once they were admitted, the utter falsity of the first defendant s case became exposed. The Subordinate Judge with whom Burn, J., agreed, reversing the Munsiff s judgment, has held that Exs. E and E-1 constitute a bare agreement to partition and cannot as such convey a title to the plaintiff to any specific items. This view was based upon the unchallenged evidence of P.W. 1, who deposed that it was in the contemplation of the parties to have the terms appearing in Exs. E and E-1, embodied in a subsequent formal document. But there is another principle of law, which on the evidence ought to have been given effect to. Mr. Section Srinivasa Aiyangar for the appellant contended before Burn, J., that Exs. E and E-1 contain merely notes or memoranda of the result of an already completed partition. But upon the ground that this case had not been put forward in the plaint or before either of the lower Courts, Burn, J., dismissed the contention as being an after-thought. In so doing, it appears to us that the learned Judge acted wrongly. As already stated, the plaintiff made in his plaint no reference to the lists, and that could be accounted for, upon the only hypothesis that what he was relying upon, was an oral partition. The contention therefore, far from being an afterthought, must be taken to have been conceived even as early as at the time of the filing of the plaint. The question then to decide is in effect, do these documents constitute the bargain between the parties or are they merely the record of an already completed transaction Subramanian v. Lutchman (1922) 44 M.L.J. 602 : L.R. 50 I.A. 77 : I.L.R. 50 Cal. 338 (P.C.), Ramakrishna Doss v. Kesavalu Chetty and Alwar Chetty v. Jagannatha Aiyar (1927) 54 M.L.J. 109. As held in the two last mentioned cases, the question really turns upon whether the documents constitute the bargain between the parties. If they do, the documents furnish written evidence of the contract and under the Evidence Act, all oral evidence is excluded. Then, by force of the Registration Act, the writing itself, affecting as it does immovable property, becomes inadmissible in evidence - the result being that the transaction cannot be proved. The only evidence that has a bearing on this point is that adduced for the plaintiff, for the obvious reason that the first defendant, having denied the transaction in toto, precluded himself from putting forward any version of his own. P.W. 1 says:

These lists were prepared with a view to fix the parties to the Division so far made and prevent them from going back on it.

[2] This certainly suggests that the oral partition became an accomplished fact by the time the lists came to be prepared. Ex. A was executed on the same date and at the same time as Exs. E and E-l. That was a submission empowering P.W. 1 as arbitrator to effect a division of the family movables. It recites:

As regards immovable property all of us have divided it in shares, cast lots in respect of the said shares, determined the share of each in your presence, signed the share lists and delivered them to you.

[3] From this again, we are prepared to infer in the circumstances that the partition had become a fait accompli and the lists were subsequently prepared. In the words of Curgenven, J., the test to apply is, whether the document formed an essential part of the process of dividing the property, or, whether there is ground to suppose that the partition had already taken place and became complete when the document was executed Subbarao v. Mahalakshmamma . The question really is, to use the expression of Mr. Govindarajachari himself, is there sufficient dissociation of the transaction from the documents We cannot accede to his contention that the matter turns upon the interval of time, although where the interval is long, the dissociation may be more readily inferred. In this case, we are satisfied, notwithstanding the shortness of the interval, that there was a completed partition before the documents came Into existence.

[4] Apart from this finding, we must hold that the Subordinate Judge was not justified in reversing the Munsiff s finding that the plaintiff was put in possession of his share of the property. Burn, J., observes that the learned Munsiff gave "excellent reasons" for holding that the plaintiff got possession of his own share. The Subordinate Judge has failed to refer to the first defendant s admission which clinches this matter, that "the plaintiff is cultivating all the lands as per list V in Ex, E" (that is to say, all the items allotted to him at the division). Burn, J., seems to think that this serious mistake does not vitiate the lower appellate Court s judgment. According to the learned Judge, the finding being one of fact, there is no reason to suppose that the Subordinate Judge did not take into account the admission, although he did not refer to it. If an appellate Court, while reversing a well-considered judgment of the trial judge, fails to advert to, or in any way indicate that it has considered, a most material piece of evidence which militates against its own view, is the finding of such Court to be accepted as an unassailable final finding of fact It must be borne in mind, as already stated, that Burn, J., himself thinks that "the learned District Munsiff gave excellent reasons for holding that the plaintiff got possession of his own share " - with which observation we entirely agree. Even on the short ground therefore that the finding of the Munsiff in regard to possession is correct, the plaintiff is bound to succeed.

[5] In the result, the appeal is allowed and the Munsiffs judgment is restored with costs throughout.